evaluation of consent Flashcards
is consent fit for purpose
not fit for purpose in modern times especially as the law was established through common law prior to 2000
leach
consent may be a defence to some no fatal offences but is never a defence to murder as a person can’t consent to being killed
what is the defendant arguing when they say the victim consented
the actus reus was not complete so the force wasn’t unlawful
tabasum
in order for consent to be valid it must be real consent where the v consents to the nature and quality of the act
must be informed the material risks must be disclosed
case
dica
olugboja
submission through fear and oppression is not consent
burrell v harmer
not be valid if victim is too young to consent
mrs b v nhs hospital trust
does not have the capacity to consent
can a person consent to injury according to
lord lane
not in the public interest for people to harm each other for no good reason
Ag’s ref no.6 1980
a person can consent to injury if it falls within an exception such as rules of a game
brown
can’t consent to injury for sexual gratification
wilson
branding can be consented to as its bodily adornment
jones and atkien
rough horse play is acceptable
Point 1
Consent is fit for purpose as it aims to protect individuals and society the courts recognise categories of lawful behaviour which are in the public interest
this paternalistic approach protects individuals from harming themselves.
Point 1 dp
this can be seen with the law in regarding invalid consent in that a person must give real and informed consent for it to be acceptable as a defence
This protects from false situations such as tabassum and ensures the law is not too wide and generous to the defendants.
point 1 WDP
Furthermore, the law protects individuals from themselves when considering that an individual must have capacity to consent, and if they do not then the law is invalid.
For example, in Burrell v Harmer the boys were too young to understand the risks associated with tattoos, and so the law protected them by stating that the consent they had given was invalid. Therefore, it is clear that the law is fit for purpose in this sense as it ensures that consent can only be a defence when it is truly given for that exact situation.
point 2
It could also be argued that the law of consent is inconsistent and illogical, as a person can consent to some activities, but not to other, very similar, activities. This can be unclear and confusing for the public, and may result in situations where a person is liable for an activity which they believed the other person had consented to.
point 2 DP
For example, a person can consent to participating in a boxing match, and can consent to the serious injury that could occur there.
However, they cannot legally consent to a street fight which may only result in low level injury, such as in AG’s Ref No.6 of 1980, even when it appears that both parties are consenting.
point 2 WDP
However, when considering the rationale behind this decision though it is clearly in force to protect individuals. A properly conducted boxing match is heavily regulated, with enforceable rules, a referee, and medical assistance where necessary.
Whereas, a street fight is unregulated and has the potential to escalate from low level injury to very serious injury, especially when considering the prevalence of knife crime in the UK.
Therefore, it could be argued that the law is fit for purpose as it allows people to participate in ‘safe’ activities, and it is logical that the law does not allow people to harm each other for no good reason.
point 3
It can be argued that the law on consent is rooted in outdated viewpoints on what is acceptable, which suggests that the law is in need of urgent reform.
When the exceptions were set out in AG’s Ref No.6 of 1980 it was more acceptable for the law to take a paternalistic approach, and individual freedoms to be restricted.
point 3 DP
this can be seen in regards to the judgements regarding Brown and in Aitken .The harm in Brown was seen as more acceptable than in aitken given that in Brown it was controlled harm between consenting males .The decision in Aitken to allow consent as a defence where adult males set fair to each other is illogical given the severity of the burns, in brown nobody was harmed.
WDP 3
Arguably, this paternalistic approach is too restrictive and the restriction on personal autonomy is not acceptable in the 21st century when individuals should be free to choose how to live their own lives. This was discussed in McCarthy where the courts acknowledged that an individual would be free to split their own tongues, or remove their own nipples, but it was illegal for a body modifier to do this for them and could therefore be in need of reform to allow greater freedom to adults with the capacity to consent.
the law commission
The Law Commission have considered the defence of consent on numerous occasions, and have proposed that the current law is right to set a limit on what a person can consent to. However, it was argued that the current law is too restrictive and a person should be able to consent to harm that is not ‘seriously disabling’ (arguably the equivalent of S.47 ABH). This may especially be necessary when considering personal autonomy and the decision in Brown.
conc
In conclusion, it is clear that the law is inconsistent and, in some cases, illogical, but generally it protects individuals well and is flexible to decide cases on their merit where necessary.
This then suggests that the law is broadly fit for purpose, and whilst it may benefit from being simplified, it is not in an urgent need of reform.
