Non-Fatal Offences Pt 2 Flashcards
Consent
Themes to consider
Balance between public policy and social welfare against autonomy and privacy.
Paternalism
Legal moralism
Legal limits to consent
AG’s Ref 6/1980: Not in the public interest that people should cause ABH for no good reason.
- CAN consent to; games, sports, reasonable surgical interference, dangerous exhibitions because they are in the public interest.
R v Dica: open to the inclusion of more categories.
R v BM: should probably leave this to Parliament.
Sport and Consent
R v Moss: Punched during game of rugby. Was off the ball.
R v Brown: Boxing is allowed because society chooses to tolerate it
Rough Horseplay and Consent
R v Jones: school children can consent to ‘undisciplined play’ so long as there is no intention to harm.
R v P, R v A: push off a bridge. Can’t have had a genuine belief in consent.
Surgery and Consent
St. George’s Health Care: Need to consent to hospital treatment.
Cosmetic surgery carried out by medical professionals is permitted.
Note: circumcision of males is allowed but FGM isn’t.
Body Modification and Consent
R v BM: for tattoos and cosmetic surgery it would be unreasonable for the common law to criminalise the activity if engaged in with consent. Body modification is not akin to tattooing.
Involved serious health risks
- so does cosmetic surgery!
Apparently some people that want body modification will be suffering from an identifiable mental illness!
Should be left for Parliament to decide.
Consent, Violence and Sex
R v Donovan: Uses cane on bottom.
- If the blows were likely or intended to cause bodily harm D was guilty whether V consented or not.
“to gratify his own perverted desires”
R v Brown:
Mustill (dissenting): Criminal law is not in place to judge private morality. But they are there to judge the facts against the Offences Against the Persons Act 1861.
- recognises the need for conserving the special interests of the individual.
- acknowledges many people would call it ‘repulsively wrong’, however that doesn’t necessarily mean the prosecution Unser ss.47/20 are well founded.
Templeman (majority): the acts were “unpredictably dangerous and degrading”. “Indulgence of cruelty”. “uncivilised”.
- “I am not prepared to invent a defence for sad-masochistic encounters.”
It is for Parliament to decide
Laskey v UK: no violation
Post-Brown
R v Wilson: Brands his wife with his initials. CA quash a s.47 conviction:
- Brown doesn’t say consent is never a defence
- No aggressive intent
- Mrs Wilson asked for it to be done
- Motivated by artistic desire
- Akin to tattooing
R v Emmett: Asphyxiation. Distinguished from Wilson as it can lead to death. no consent.
Possible Reform of consent and injury
Law Commission in 1995:
A person should not be able to provide consent for a ‘serious disabling injury’.
- higher threshold than ABH
STI Transmission
R v Clarence: Wife had consented to sex, and that consent was not vitiated by fact she didn’t know he had STI.
- Dissenting ‘sex with a diseased person is very different in nature from sex with a healthy person’.
R v Dica: Calls Clarence irrelevant. Applies Brown - could not consent to risk of infection with HIV as would be GBH level injury. Can never consent to intentional infliction of HIV.
R v Konzani: D’s honest belief in the alleged victim’s consent did provide a defence. However if he deliberately concealed his infection, this would negate that defence.
R v Daryll Rowe (2017): intentional transmission. There is no defence here. Charged with s.18.
