Defences - Consent Flashcards
Attorney General’s Reference (No 6 of 1980) [1981]
Consent
General Rule
Defences
Not possible to consent to ABH (or above) without a good reason
Confirmed in R v Brown
R v Meachen [2006]
Consent
Defences
- Can consent to assault or battery, provided the defendant intended to only commit a battery and did not see the risk of inflicting actual bodily harm
- Where D DID NOT SEE RISK of causing harm the DEFENCE WORKS, regardless of the level of harm or the nature of the activity.
- Where D DOES NOT INTEND but DOES FORESEE the risk of harm, the Court of Appeal DECLINED TO RULE on whether the defence might operate.
- Where D INTEND to cause harm DEFENCE NOT AVAILABLE, unless one of the exceptions. Ratio of R v Brown.
Attorney General’s Reference (No 6 of 1980)
Consent
Exceptions
Defences
Consent allowed for medical treatment
R v Barnes – [2005]
Consent
Exceptions
Defences
- In organised sport, criminal prosecution should be reserved for situations where the conduct was sufficiently grave to be categorised as criminal. If what occurred went beyond what a player could reasonably be regarded as having accepted by taking part in the sport, this would indicate conduct was not covered by consent. Consider:
- The type of sport
- The level at which it is played
- The nature of the act
- The degree of force used
- The extent of risk of injury
- The state of mind of the D
- If inside the rules of the game, will automatically be consented to.
- If outside the rules of the game, not automatically be a crime.
- Consent extends to risk of injuries occurring from fouls and infractions in the heat of the moment, even if it merited a sending off.
R v Billinghurst [1978]
Sport
Consent
Defences
Rugby player punched another player during a match in an unprovoked attack.
Mervyn Davies argued punching was common place during rugby matches.
However, it was still outside the rules of the game (“off the ball” and thus the victim could not be said to have consented to being punched.
R v Jones [1986]
Horseplay
Consent
Defences
Youth club; tossed two boys in air; 1 ruptured spleen and 1 broken arm
Boys have always indulged in rough and undisciplined play amongst themselves – defence of consent allowed.
R v Aitken [1992]
Horseplay
Consent
Defences
Drunk RAF Officers setting fire to each other’s fire-resistant suits to see if they worked
Victim’s didn’t work and suffered severe burns.
Court martial relied on R v Jones and said there had been consent.
R v Richardson and Irwin [1999]
Horseplay
Consent
Defences
Students at Surrey university who threw victim of balcony.
Consent allowed as both the victim consented and defendants believed victim had consented.
R v Wilson [1997]
Personal Adornment
Consent
Defences
Wilson at wife’s request branded her initials on her buttocks with a hot knife.
Wound developed an infection which required hospital treatment.
Wilson convicted and appealed and court overturned decision saying its similar to piercing, tattooing and other lawful activity.
R v BM [2018]
Personal Adornment
Consent
Defences
Ear cut off, nipple removed and tongue made into serpent’s tongue.
Held to have gone too far to be consented to
R v Dica [2004]
Sexual Gratification
Consent
Defences
Dica charged with 2 offences of inflicting GBH under S20 – gave HIV to a victim in course of sexual relationship.
Knew he was HIV positive and said women were aware of it as well.
CoA decided case on basis that they did know he was HIV positive and so was an exception.
R v Slingsby [1995]
Sexual Gratification
Consent
Defences
No Intention to Cause Harm
Inserted fist into victim. Victim’s injury was caused by a ring on defendant’s finger that he forgotten about.
Victim died from septicaemia from cuts caused by the ring.
No intention to cause harm and defendant didn’t see risk of causing any harm.
Defendant acquitted of manslaughter as lacked the mens rea for assault or battery.
R v Boyea [1992]
Sexual Gratification
Consent
Defences
No Intention to Cause Harm
Inserted fist into victim’s vagina.
Argued for purpose of sexual gratification and didn’t intend to cause level of harm. Consent not accepted as a defence and convicted.
Professor Smith says wrongly so as gave an objective test; not subjective. Should have been decided in same way as Slingsby and Meachen
R v Emmett [1999]
Sexual Gratification
Consent
Defences
Intention to Cause Harm
Convicted as intended to cause GBH.
Tied a plastic bag over her head, poured lighter fuel over her and set her on fire because she wanted him to.
R v Brown [1999]
Sexual Gratification
Consent
Defences
Intention to Cause Harm
Sado-masochistic homosexuals willingly took part in acts of violence against each other for sexual power. Videoed activities.
Intended to cause harm.
Split HoL – minority shouldn’t interfere with consenting adults private behaviour but majority can’t cause harm for no good reason.
