(RED) Consent Flashcards
How does the defence of consent work?
The defendant pleads a defence by stating the victim consented to the act.
What 2 factors are needed to prove consent?
-Can V consent to the crime?
-Did V really consent to the crime?
Can consent be used as a defence for common assault (assault and battery)?
R v Slingsby- consent can be used as a defence for common assault. For example, in cases of battery, the force applied will not be unlawful because the victim consented to it.
Can consent be used as a defence to murder?
Pretty v UK- consent can never be used in relation to murder (would still be murder or assisted suicide).
Can V consent to s18 OAPA 1861 (wounding or GBH with intent)?
R v Leach- consent can never be used as a defence to a crime under s18.
What is the general rule for if V can consent to s47 (ABH) or s20 (wounding or GBH)?
R v Brown and others- consent generally cannot be used as a defence to a s20 charge.
What are the exceptions to the general rule in s20 and s47?
-Properly conducted games and sports
-Rough horseplay
-Tattooing/branding
-Medical treatment
How does the exception of properly conducted games and sports work?
Injuries given during the course of the game can be consented to and taking part in sports may give implied consent to any injuries expected in that sport. However, causing intentional injury or doing something that goes beyond the rules or spirit of the game may not have true consent.
How does the exception of rough horseplay work?
Horseplay means messing around and can only work if D doesn’t intend any harm. The case of Aitken shows that even D’s drunken and mistaken belief in V’s consent can be a defence to horseplay.
How does the exception of tattooing/branding work?
R v Wilson- ‘personal adornments’ can be consented to by V.
How does the exception of medical treatment work?
Things like surgery are valid situations to commit a crime like wounding, provided V has given true consent to the medical activity and knows the risks involved.
What is not the same as consent?
R v Olugboja- mere submission is not enough to amount to consent.
What 3 things must be considered for if V actually consented?
-V must be capable of giving consent (competent)
-V’s consent must be true/ real/ genuine
-Consent can be implied in some circumstances
What is the test to determine if V is capable of consenting?
Gillick- a person has capacity to consent if they are ‘Gillick competent’. This means that V must have sufficient maturity, intelligence and understanding of the nature and consequences of what they are consenting to.
When might consent not be real/ true?
-If V’s consent has been obtained though being lied to/ fraud
-If V’s consent is not informed and they don’t know all the risks or consequences of D’s act
