Special Study

Question 1

When will consent not be ‘real’?

Answer 1

For the defence to be allowed the consent must be genuine. The fact that V ‘apparently’ consents to D’s act does not mean the law will treat the consent as valid.

Question 2

Lack of capacity?

Answer 2

An apparent consent is invalid where the victim is unable to comprehend the nature of the act committed.

Question 3

the act for lack of capacity and what it states?

Answer 3

THE MENTAL CAPACITY 2007
states that a person lacks capacity to make a decision if;
- ‘they’re unable to understand information relevant to the decision
- retain that information or use or weigh that information as part of the decision making process’

Question 4

tattooing of 2 boys?

Answer 4

BURRELL V HARMER
was convicted of ABH after tattooing bits of the age 12 and 13, it was held although they understood what a tattoo was they did not appreciate the full nature of the procedure.

Question 5

What has parliament?

Answer 5

For some statutory offences, they have set down an age below which a person cannot legally consent.
(E.g. The consent of a girl under the age of 16 to sexual intercourse cannot be a defence to a man charged with unlawful sexual intercourse.)

Question 6

obtained by fraud?

Answer 6

Consent obtained by fraud may not be valid. Fraud doesn’t necessarily rule out the rule of consent.

Question 7

Fraud will only prevent a valid consent if it deceives V as to;

Answer 7

1) the identity of D or;
2) the “nature and quality” of D’s act

If either of the the two above occur there will be an assault.

Question 8

case for nature and quality?

Answer 8

WILLIAMS
D a singing teacher told a 16 year old pupil that if she had sex with him it would improve her breathing. V made no resistance as she believed him and didn’t know he was having sex with her.

She was deceived by what was going on.

Question 9

Nature and Quality?

Answer 9

In TABASSUM it was changed to “nature or quality”

Question 10

RICHARDSON FACTS

Answer 10

D was a dentist that had been suspended. However, she continued to treat patients she was eventually detected and prosecuted. Convicted of 6 accounts of ABH, on the basis that her fraud as to her continued entitlement to practice ruled out her patients consent.

Question 11

RICHARDSON RULING

Answer 11

The court of appeal allowed the appeal. They were not deceived as to her identity or the nature or quality of what she was doing. It was irrelevant that they would not have consented had they known the truth.

Question 12

TABASSUM FACTS

Answer 12

D had persuaded women to allow him to measure their breast for the purpose of preparing a database for sale to doctors. The women had all consented but only because they thought D had medical qualification.

Question 13

TABASSUM ruling?

Answer 13

The court of appeal held that although they had not been deceived as to the ‘mature’ of the examination but had been deceived to the ‘quality’

Question 14

what was said in TABASSUM?

Answer 14

“Consent to a surgical examination is not consent to sexual connection or indecent behaviour”

Question 15

Implied consent?

Answer 15

In COLLINS V WILCOCK it was said consent to minor assaults in the course of everyday life is generally implied. (Jostling etc.)
Same principle applies to emergency surgery if the patient is unconscious.

Question 16

Consent to unprotected sex?

Answer 16

Doesn’t necessarily amount to consent to the risk of sexually transmitted disease.

Question 17

R V DICA FACTS

Answer 17

D slept with several women over a period of time without telling them he was HIV positive. They consented to unprotected sex. One woman contracted the disease.

Trial judge refused to allow the jury to consider consider consent as a defence because consent cannot usually be a defence to the infliction of serious harm. Convicted of s.20 GBH, appealed on issue of consent.

Question 18

Ruling in DICA

Answer 18

The C/A stated that the trial judge was wrong in the circumstances to withdraw the defence all together but should have directed the jury that it was a matter of fact for them to decide if having consent to unprotected sex, she had also consented to the risk of HIV.

Question 19

DICA RULING CONTINUED..

Answer 19

A retrial was ordered and a fresh jury convicted him, obviously deciding that consent to unprotected sex did not in those circumstances amount to the risk of contracting HIV.

Question 20

What case did DICA overrule?

Answer 20

CLARENCE
In which it was decided that a wife’s consent to intercourse with her husband meant that there was AOABH, when he infected her with gonorrhoea, knowing that he was infected himself. DICA was upheld in the case of KONZANI.

Question 21

Duress?

Answer 21

Consent obtained by duress; a threat to harm V unless they do ‘consent’ would invalidate any consent in the circumstances. This consent is said to be ‘vitiated’

Question 22

when will real consent actually be a defence?

Answer 22

R v BROWN is the leading case

Question 23

R V BROWN FACTS

Answer 23

Five men in a group of consenting adult sadomasochists were convicted under the OAPA 1861. They carried out acts which included applying stinging nettles to the he trial area, inserting fish hooks into each other’s penises etc.

Question 24

Lord Templeman

Answer 24

“I am not prepared to invent a defence of consent for sadomasochistic encounters which breed and glorify cruelty and result in offences under OAPA 1861 s.47 and s.20”

Question 25

Lord Mustill

Answer 25

“Questions on private morality”

Question 26

BROWN AND THE EUROPEAN CONVENTION OF HUMAN RIGHTS

Answer 26

In LASKEY, JAGGARD AND BROWN V UK the European court of human rights upheld the judgement in BROWN AND OTHERS. It had been argued that the criminalisation of private sadomasochist activities was an unjustifiable interference with the men’s right to respect for private life.
Their prosecution was justifiable for the protection of health.

Question 27

When will the defence of consent be allowed?

Answer 27

In BROWN AND OTHERS the law lords held that whilst consent was always a good defence to the charges of battery, it is normally to any defence involving ABH, GBH or wounding unless there was a recognised ‘good reason’

Question 28

WILSON FACTS

Answer 28

Alan Wilson branded his initials into his wife’s buttocks using a hot carving knife. She regarded the branding as ‘desirable personal adornment’ and she had originally requested the bracing on her breast.

Question 29

Out come of Wilson

Answer 29

The Court of Appeal held that branding is a form of tattooing, and tattooing is a category of activity for which is a recognised good reason for allowing the defence of consent to ABH and above. Wilson was distinguished from BROWN for this reason.

Question 30

Courts obiter?

Answer 30

Consensual activity of a man and wife in the privacy of the martial home is not in our judgement