The Defence of Consent

Question 1

General rule:

Answer 1

● The law allows a certain level of touching in everyday life that would otherwise be a battery; such as being in a crowded lift.
● In such situations, any potential V who is ‘harmed’ is deemed to have given implied consent to the ‘jostlings of everyday life’.
● A D will not be prosecuted where implied consent is obvious

Question 2

Was there valid (true) consent?

Answer 2

● Did V have capacity to give consent? Consider their age and mental state
● Did V know the nature and quality of the act? This means, did they know what they were consenting to
● Look out for: - D lying about their identity and/or qualifications

Question 3

Harm limited to assault or battery

Answer 3

● What harm has V suffered? A battery = any unlawful touching
● V can give express consent to a battery
● If something MORE than this has
happened, causing V SOME HARM, this will = ABH, and GBH if the harm is SERIOUS
● V can NOT give express consent to ABH or GBH
● If ABH/GBH has occurred, apply the next rule

Question 4

Was D and V engaged in a permitted activity?

Answer 4

● A V can consent to ABH/GBH if the activity falls within one of 4 permitted exceptions:
○ surgery (medical)
○ contact sports (only if harm caused within the rules of play)
○ horseplay (messing around with no intent to harm, D must genuinely believe V consented)
○ bodily adornment (tattoos or piercings)
● If one of the exceptions applies, use the case law to determine whether or not V consented