L4: Battery and Consent Flashcards
What is battery ?
AR/MR ?
-Application (Direct/Indirect causation) of unlawful (Not consent/ self-defence) contact/ touching towards another (AR)
-MR- Intention or Recklessness
Examples:
unwanted kisses, scratches
What are the key cases for direct and indirect application ?
Direct Application:
-Collins v Wilcock
-Savage v Parmenter- Battery by Beer
-DPP v K
Indirect Application:
-Fagan case
-Haystead v Chief Constable Derbyshire
-Clarence
-Martin (1891)
What is unlawful force in relation to consent?
-Consent is relevant to crimes of violence where unlawful force is an element of the AR
-It can make unlawful touching lawful
-It justifies touching so is a justice defence
What are the different types of consent ?
-Implied/Societal consent- Collins v Wilcock
-Express consent
What is the definition of consent and how do we know if a person consented to something ?
It is defined and criminalised under s.74 Sexual Offences Act 2003
A person consents if:
- He agrees by choice;and
- has the freedom
- and capacity to make that choice
What is consent ?
-Consent can be express or implied
-According to s.74 Sexual Offences Act (2003), “A person consents if he agrees by choice, and has the freedom and capacity to make that choice”.
- Did V actually choose to participate in the activity?
-Did V have the mental capacity to choose?
-Was choice freely made (i.e. not coerced)
-Did V have sufficient understanding of the situation or nature of activity to make an informed decision?
What can we and cannot consent to ?
-Assault/Battery – can consent but question is whether you did or not
-ABH s.47/ GBH s.20 and s.18- Hard to deem whether the individual actually consented to it
-Murder/Euthanasia- Never consent to it
Consent to ABH/GBH
Is it in the public interest for the following to occur? i.e. is it legally possible to consent to:
-A wishes to have her life ended prematurely due to suffering a terminal illness. B smothers A with a pillow causing brain damage but not death
-C wishes to have cosmetic surgery to look more like their favourite celebrity
-D wishes to undergo female circumcision
Not in the Public Interest (cannot consent to):
-Fighting and Brawling Attorney General Ref (No 6 of 1980)
BUT boxing is in
public interest
What are the sports exceptions- R v Barnes (2005)
-Sports have disciplinary procedures
-Civil compensation as an alternative to criminal prosecution
-Was act sufficiently grave to warrant criminal prosecution ‘
-Does act go beyond what we can reasonably be regarded as having accepted?
“Off the ball” incident?
Sexual Activity and R v Brown
-ABH and GBH but no permanent injuries nor medical treatment
Approach of the Majority:
-Assume that deliberately causing ABH/GBH is unlawful unless there are good policy or public interest reasons for making it lawful
-“Practice…dangerous and injurious to individuals… which if allowed and extended is harmful to society generally
What are the cases for Manly Diversions and Horseplay ?
-R v Jones
-R v Aitkin
-Richardson & Irwin
When is consent available? What is it available for ?
Available: Assault & Battery
-Consent is a defence to assault and battery
-There are no restrictions on availability of consent to assault and battery. Provided the victim did consent, there can be no liability for assault or battery
When is consent generally not available and what is it not available for ?
Not generally available: s.47,20 and s.18 offences (i.e. ABH, GBH, Wounding)
- General Rule: consent isn’t available to offences that result in serious bodily harm. This is because it isn’t in public interest that people cause each other bodily harm for no good reason.
-Exception: Defence is available where the injury occurred in the course of a “lawful activity”. In other words, a defendant can rely on the defence of consent if the conduct falls within a list of the exceptional cases where the activity is deemed to be lawful or in the public interest.
When is consent never available and for which offences for ?
Never Available: Murder & Manslaughter
- Consent can never be a defence in the cases where the victim has died
What are the Lawful Activities/Categories of Exceptional Cases ?
1.Sporting activities
2.Dangerous exhibitions
3.Rough and undisciplined horseplay
4.Surgery
5.Tattooing and body piercing
6.Religious Flagellation
7.Consensual intimate acts in the course of which one party is infected with a medical condition, where the victim has consented to run the risk of acquiring the infection
8.Private relationships between partners
9.Where the harm isn’t caused intentionally
Key Case: R v Brown
