General defences: Consent

Question 1

What type of defence is consent (3)

Answer 1

• Complete defence (results in acquittal) and a defence of justification
• Fluid defence to some which changes to reflect changes in society, but law is slow to change, so it may not always

Question 2

Definition

Answer 2

The victim is allowed the defendant to carry out the crime - has been essentially developed through the common law. The burden of proof in on the prosecution to prove lack of consent

Question 3

Source

Answer 3

Common law

Question 4

A victim’s consent can nullify…

Answer 4

/cancel out the defendant’s liability some offences against the person

Question 5

What are the 2 elements that need to be proved

Answer 5

The nature/type of consent
Type of offence

Question 6

Element 1: The nature/type of consent
(factor 1)

Answer 6

1) Type of consent is either expressed or implied
Either..
Expressed - written down
Implied - action/behaviour

Question 7

Element 1: The nature/type of consent
(factor 2)

Answer 7

2) Way consent is given - is it true/valid/real consent

Consent is not valid if…

• given by a minor who was not old enough to understand the implications of the act they were consenting to (Burrell and Harmer)
• given by a person who does not have the mental capacity
• given as a result of fear, V succumbed to the act/consent was given as a result of subrogation (Olugboia - consent not real/valid)
• given as a result of duress
• given as a result of fraud as to ‘the nature and/or quality’ of the act (Richardson/Tabassum)

The defendant can still get the defence if a MISTAKE is made about V’s implied consent to the act (R v Jones and others/ Aitken and others)

Question 8

Burrell and Harmer case

Answer 8

D caused injury to to boys of 12 and 13 by tattooing them

Where V consents but is unable to appreciate the nature of the act

Question 9

Element 2: Type of offence

Answer 9

Consent is generally available to all assaults and batteries (Collins V Wilcock/ Wilson v Pringle)

Not generally available to S47 (ABH) or S20 (Malicious wounding or inflicting GBH) offences because it is not in the public interest to allow people to inflict harm/injury on others

May be available for involuntary manslaughter in some limited situations - Slings by (vigorous sexual intercourse and injury caused by ring wearing)

A victim cannot consent to their own death - consent is not available as a defence to murder - euthanasia - Pretty/Purdy

Question 10

Element 2: Type of offence (exceptions to the usual rule, defence to S47/S20)
- Lord Lane

Answer 10

Lord Lane AG’s Ref No.6 of 1980 explained that

a) Consent is not generally available as a defence to S47 or S20 offences (no public interest in people inflicting harm/injury on each other)

b) Not available as a defence to D’s who agree to fight to sort out their differences

c) Can be available to S47 and S20 offences which involve activities which may have public interests…
- Properly conducted sporting activities
- Lawful surgery
- Lawful chastisement of children
- Dangerous public exhibitions (circus/shows e.t.c)
- E.t.c -> leaving his list open

Question 11

Element 2: Type of offence (exceptions to the usual rule, defence to S47/S20) - Horseplay, tattooing, branding and piercing

Answer 11

• HORSEPLAY (PRANKS/BOISTEROUS PLAY), if the hurt/injury was caused by horseplay consent is available (R v Jones and others/ R v Aitken) - provided that the horseplay was not hostile (nastiness) (DPP v P)
• TATTOOING, BRANDING, PIERCING - R v Wilson (Branding initials on Mrs buttocks with consent) was an exception to the usual rule (body adornment).

Question 12

R v Aitken case
- what element of consent is this?

Answer 12

During RAF initiation ceremony. V’s flameproof overalls were set on fire

Element: Horseplay

V can give consent to the risk of accidental injury in the course of rough and undisciplined play

Question 13

Element 2: Type of offence (exceptions to the usual rule, defence to S47/S20) - Properly regulated sporting activities

Answer 13

AG’s Ref No6 of 1980 confirmed the exception

If defendant has agreed to play contact sport they have expressly or impliedly consented to the risk of some injury

Includes rugby (Billingshurst), football (Barnes) and commonwealth (Canadian) cases like Currier seem to say that it will include stick and ice hockey

Question 14

Element 2: Type of offence (exceptions to the usual rule, defence to S47/S20) - Hair cuts and vigorous sexual intercourse

Answer 14

HAIR CUTS is an exception to the usual rule - DPP v Smith

VIGOROUS SEXUAL INTERCOURSE (private matters) - Slingsby, engaged in vigorous private sexual activity wearing ring but inadvertently lacerated (cut) V, failed to seek medical treat and died

Question 15

Situations/activities where consent is not available to S47 or S20 (4)

Answer 15

Prize fighting/street fighting - no public interest in allowing people to harm each other (S47 and S20 offences) and it could cause breach of peace -> Ag’s Ref No6 1980

Sado-masochism - consent will never be available to D who has inflicted S20 or S47 injuries on V in the course of sado masochistic activities (R v brown and others)

V’s consent can never be a defence if the defendant is charged with a s18 offence

V’s consent can never be a defence to murder (Euthanasia)

Question 16

EVALUATION: Horseplay

Answer 16

The common law decisions that currently govern horseplay are problematic and give rise to concerns. The ruling in R v. Jones and Others appears inconsistentand confusing. When the two older boys threw the two younger boys into the air, breaking an arm and rupturing a spleen, the CA determined that the older boys might use the defence of consent. They said that the defendants made a genuine mistakewhen they claimed that the Vs had given their implied consent to be thrown into the air. It is apparent that this choice fails to protect younger children or those who are vulnerable. The decision is questionable and can only be justified by the courts’ attempt to apply common sense by not charging the two teenage defendants.

The choice made in Aitken (where RAF officers set fire to a friend who was intoxicated and wearing a fire retardant outfit) seems questionable. Nonetheless, the ruling in DPP v. P appears to improve the law’s acceptability and provide some clarification. In this instance, the V had being harassed by the D. The case demonstrated that if horseplay is HOSTILE (nasty), consent is not available for S47 and S20 Offences.

Question 17

EVALUATION: Common law

Answer 17

Through case law, judges have an excessive amount of influence over legislation. Some would argue that this is undemocratic and that the appeal judges’ backgrounds, ethnicities, and ages may not accurately represent the society they are ruling over. On the other hand, one could counter that, as opposed to strict, codified statute laws, the common law’s consent principles allow for swift modifications that reflect shifting societal perspectives. The development oflaw is evident in the decisions concerning informed consent to the risk of sexually transmitted infections and viruses. In the Dica case, consent was not informed since the defendant had not disclosed to the victim that they were positive for HIV prior to engaging in unprotected sexual relations.

Def faced a biological GBH conviction. Now that Golding has included genital herpes, it raises concerns about people’s right to privacy even as it helps the legislation to develop and provide a deterrent and public policy message. How strict will the law be?

Question 18

EVALUATION: Necessary

Answer 18

The law on consent is necessary because:
- We shouldn’t criminalise every activity especially through sports because this is bad for activities seen to be socially useful as its encouraging people to exercise and carry out sports. If people are aware that certain things can be criminalised then no one will get involved (R v Barnes).
- Furthermore, the role of the public interest is important as it is part of the law’s role in wider society.

Question 19

EVALUATION: Body adornment

Answer 19

Some raise the question of whetherthe law adopt a reasonable, equitable, and policy-and principle-balancing approach. A person’s right to body piercings, tattoos, and other adornments that respect their right to privacy (their identity) and self-expression is acknowledged and respected in cases like Brown, Wilson, e.t.c.This supports both Professor Hart’s positivist opinions in the Hart-Devlin dispute and Nozick’s beliefs that the government should only step in when necessary. The strategy is balanced, though, since there are limits and children and the young need to be protected because they might not be aware of the consequences of their activities. This is demonstrated by common law decisions such as Burrell and Harmer as well as by the laws themselves.

Question 20

REFORM

Answer 20

the law commission reviewed the defence of consent in their 1995 paper ‘consent in the criminal law’, but no real reforms were suggested.

They suggested parliament need to legislate this area in order to create certainty in the law and to avoid judge made law.