general defence of consent

Question 1

Intro

Answer 1

• consent is a general defence but special relavence to non fatal and sexual offences
• strictly speaking not a defence because it negates ‘unlawfulness’

Question 2

3 main requirement

Answer 2

• never consent to murder- PRETTY
• must have capacity to consent therefore right age and not mentally ill- BURREL AND HARMERS
• consent must be informed/real( v must know what they are consenting to) FLATTERY&RICHARDSON

Question 3

evaluation for 3rd element

Answer 3

seems fair however produce some inconsistent decision ,hard to see how the consent of the victim was more “valid/real” Richardson was more valid than in those brown

Question 4

General rule

Answer 4

is that one can consent to minor harm((battery) but nothing more (LEACH) unless harm is caused as a part of one the recognised exception

Question 5

5 exception and case

Answer 5

sports
horseplay
lawful chatisement
surgery/cosmetic treatment 
dangerous exhibition

Question 6

sports explanation and evaluation

Answer 6

• many sports involve the risk of some bodily harm eg contact sport if the game conducted properly and d did not intend to cause harm then consent is valid
• BARNES set out criminal threshold such as type of sport d state if mind and nature of act
• although sports may seem fair in cases such as case of billinghurst the injury was outiside the game yet consent was valid

Question 7

horseplay explanation and evaluation

Answer 7

• court attitude to this is reasonably liberal and have allowed consent as a defence in Jones and even aitken and others
• however jones was a high spirited game on the contary aitken was bullying that went beyond innocent “horseplay” yet consent was valid

Question 8

surgery/cosmetic treatment explanation and evaluation

Answer 8

surgey obviously involve infliction of force/harm onto another but consent can be a defence as procedure is purely for cosmetic reasons such as tatooing. WILSON

• however some practices are unlawful rendering consent eg euthanasia AND FGM under the FGM ACT
• hard to reconcile wilson/brown , wilson likened to tattoing and consent was valid however the sado machochism in brown was unlawful therefore consent waas invalid

Question 9

lawful chatisement explanation and evaluation

Answer 9

-under s58 of the children act 2014, parents and anyone in locoparentis may use reasonable force to impose punishment,depend on the circumstance and kind of age -however punishment not reasonable in A V UK

Question 10

AREA of harmful sexual activity and sado masochism

Answer 10

• courts have approached this matter on a day by day cases
• real inconsistency here
• liberal view, DICA- v can consent to STI’s if informed and respect autonomy of those with HIV. MEACHEN- recognised the sexual landscape has change WILSON- courts cant judge whats criminal between husband/wife at a matrimonial home
• paternalistic decision such as brown(discuss) and boyea was discussed how 2 peop;e agree to sexual activity which may be deemed harmful shudnt be seen unlwaful same with sports however slinglsbury a similar case the consent was valid

Question 11

conclusion

Answer 11

law commission in its policy paper of 2000 state that hey should be a cler definition of consent also parliament should take initiative in this matter and lay down a clear guidelines on use of consent as a degree