introduction to defences

Question 1

consent

Answer 1

• Typically argued by the D that the V consented to whatever harm was inflicted upon them
• Donovan (1934)- the burden of proving lack of consent lies with the prosecution

Question 2

valid or invalid consent

Answer 2

• In order for the consent to be valid, there are certain criteria which must be met:
• The consent must be real
• The victim must not have been deceived
• The consent must have been fully informed
• (Consent often implied by law

Question 3

consent must be real

Answer 3

• 2 factors to fulfill here:
• Consent is invalid if the victim lacks capacity (underage, mental capacity) – Howard (1965)
• The victim must be able to understand the act they are consenting to (full knowledge) – Burrell v Harmer (1967)

Question 4

victim must not be deceived

Answer 4

• A victim cannot be deceived into consenting
• If there is deception, the consent for that is invalid
• The deception can relate to either the nature of the harm or the quality
• This was explored in Tabassum (2000)
  Facts: D examined breasts of 3 women claiming he was researching for breast cancer software but was not medically trained and was doing for his own benefit
  Law: Indecent assault. The women had not consented to his intention – only for medical purposes . The consent to what he did was not valid.

Question 5

fully informed

Answer 5

• To consent fully, the victim must have known all of the facts and risks before they consent and before the act happens
• Consenting to HIV? Consent to sexual intercourse?
• D slept with two women unaware of his disease, charged w/ recklessly causing GBH.
  Consent to intercourse was valid, but there was no consent to the risk of HIV.
  The defendant must know that they are suffering from the disease and it is possible to consent to the risk – as long as all above apply

Question 6

limit to consent

Answer 6

• R v Brown outlined some limits to consent – you can consent to Assault, Battery but NOT ABH, S20, 218, MURDER

Question 7

exceptions/ implied consent

Answer 7

• However, in these situations there is the possibility to consent:
• Sport
• Surgery
• Horseplay
• Sex
• Adornments/Modifications