OAPA Consent and other defences

Question 1

Consent negates assault or battery. Since assault and battery must be proven for s.47 does consent preclude liability under s.47?

Answer 1

Nope

Att-Gen’s Reference (No 6 of 1980), can’t consent to anything above battery and assault and a fight isn’t a good reason

Question 2

Free and informed consent not enough, need a good reason. Sexual gratification is not a good reason

Answer 2

R v Brown
Underlying prejudices, refer to depraved and perverted proclivities.
Now, art 8 of HRA outlines privacy right including private consensual activity. Arguably Brown is in violation of Article 8.

Question 3

When can consent negate the actus reus?

Answer 3

When harm was not intended, when the activity was not done for the sake of risking the harm, and when the risk of harm was in any event foreseen as being substantially unlikely by the defendant

Question 4

Rough and undisciplined horesplay with no foresight of harm and belief in consent can be a defence

Answer 4

R v Jones

Threw friend in the air, accidentally dropped him on his head

Question 5

Injuries inadvertently sustained as a result of consensual sexual activity where no harm was foreseen do not give rise to liability

Answer 5

R v Slingsby

Question 6

Fully informed consent where the risk of harm is completely incidental to the act makes it legal

Answer 6

R v Dica

Question 7

Consent has to be informed, willing and conscious

Answer 7

R v Konzani

Consent to unprotected sex is not consent to any possible diseases

Question 8

What are the “good reasons” available for acts that have a substantial risk of injury but are freely consented to

Answer 8

Tattooing and piercing, contact sports, circumcision, operations

Question 9

Fights aren’t a good reason

Answer 9

Att-Gen’s Referece (No 6 of 1980)

Question 10

Sado-masochistic sex isn’t a good reason

3 cases

Answer 10

R v Brown
Laskey v UK
EU said the conviction did infringe right to privacy but the infringement was justified bc of the inherent health risk (none of the participants had ever needed medical attention)
R v Emmett
Even in relationships and marriage

Question 11

Tattooing/branding legal even where dangerous unregulated and resulting in serious bodily harm

Answer 11

R v Wilson
Tattooing initial onto wife’s breast with an iron. Caused severe blisters and burns. It was accepted that the branding was consensual and initiated by Mrs Wilson. No real distinction between Wilson and Brown, but nevertheless legal bc she consented and initiated, was for the purpose of a tattoo. Distinguishing point that it was not done for pleasure, the pain was not the goal.

Question 12

When does best interests apply?

Answer 12

Where V could consent if he had the capacity to make an informed decision, and the action is in V’s best interests

Question 13

Best interests case

Answer 13

Re F

Sterilising a mentally handicapped woman

Question 14

Best interests can be wider, V may benefit from helping others

Answer 14

Re Y

Authorised taking a mentally handicapped woman’s bone marrow to treat her sister’s leukemia

Question 15

Cannot be invoked where V is able to make an informed but potentially disastrous decision

Answer 15

St George’ Helathcare NHS trust v S

Phobia of C-section

Question 16

Is it okay to restrain someone who attempts to commit suicide

Answer 16

Lady Hale says yes obiter in particular circumstances
Rabone v Pennine Care NHS Foundation Trust
Authorities have duty to prevent self-harm by vulnerable parties (prisoners, mental patients, the unstable)
Nicklinson v Minister of Justice
Policeman can stop someone jumping off a bridge

Question 17

No longer allowed to use parental chastisement for anything greater than Assault and Battery

Answer 17

A v UK

Strasbourg said UK not doing enough to prevent violence on children