the defence of consent

Question 1

what can consent be a defence to

Answer 1

all non fatal offences against the person

Question 2

which case states that it may be a defence to unlawful act manslaughter

Answer 2

slingsby

Question 3

which case states that consent is never a defence to deliberate killing

Answer 3

PRETTY V DPP

Question 4

who is the burden on when d raises this defence

Answer 4

the prosecution to disprove beyond reasonable doubt

Question 5

express consent

Answer 5

where V clearly says that they’re willing to consent to a potential injury

Question 6

where can implied consent be inferred

Answer 6

from Vs actions or a particular situation, so that d does not commit a battery

Question 7

why is implied consent necessary

Answer 7

for society to be able to function

Question 8

what is implied consent given to

Answer 8

the ordinary jostlings of everyday life: COLLINS V WILCOCK

Question 9

what do players give in contact sports

Answer 9

implied consent to contact which is part of that sport

Question 10

what does whether the defence is allowed depend on

Answer 10

the level of injury

Question 11

why is consent readily available for assault and battery

Answer 11

no injury is caused

Question 12

what does it mean that consent is not a defence where there is an injury

Answer 12

not a defence to ABH or above in severity

Question 13

ATTORNEY GENERALS REFERENCE NO 6 1980-81

Answer 13

following acquittals for ABH, C/A held that in future consent would not be available in such circumstances because it was not in the public interest that people should intend to cause each other ABH for no good reason (teenage boys fighting in street)

Question 14

public policy exceptions where consent is a defence even where injury is caused

Answer 14

• properly conducted games and sports-BARNES
• reasonable medical treatment
• tattooing and body piercing- WILSON
• horseplay- JONES
• dangerous exhibitions

Question 15

when is it possible for an offence to be committed in contact sports

Answer 15

if the contact between players is sufficiently serious- BARNES

Question 16

BARNES

Answer 16

• C/A said it is not generally appropriate to bring criminal proceedings in such cases, unless d has gone beyond what V could reasonably be regarded as having consented to by taking part in the sport
• if injury is inflicted intentionally the defence will fail

Question 17

when can medical staff rely on implied consent to avoid criminal liability

Answer 17

where surgery is necessary but a patient is unconscious and consent cannot be obtained from a relative

Question 18

why can people consent to tattooing and body piercing

Answer 18

its accepted as body adornment- WILSON

Question 19

WILSON

Answer 19

• C/A held that branding was body adornment, like a tattoo
• no aggressive intent on Ds part so it was not in the public interest that such consensual behaviour between husband and wife should be criminalised

Question 20

JONES AND OTHERS

Answer 20

• horseplay
• a genuine mistaken belief in consent to horseplay could be a defence, even if that belief was unreasonable
• CA quashed their convictions for s20

Question 21

when will the courts not recognise consent if D deliberately inflicts injury

Answer 21

for sexual gratification eg. sadomasochism

BROWN AND OTHERS

Question 22

brown and others

Answer 22

• 5 homosexual men in group of sadomasochists convicted of offences under s47 and s20
• in private, no complaints to police, no permanent injury
• convictions upheld by majority judges in H/L- WILSON??

Question 23

what must v be to be legally capable of giving valid consent

Answer 23

mentally capable and usually not a child

Question 24

what did the house of lords decide in Gillick

Answer 24

even a child can consent to medical treatment, provided they have the necessary maturity and sound understanding to do so

Question 25

what further restriction on consent have the courts developed

Answer 25

true consent

Question 26

what must v understand to give true consent

Answer 26

the nature of ds act BURRELL V HARMER

Question 27

BURRELL V HARMER

Answer 27

• no valid consent because vs were only children

- no true consent because boys didn’t understand nature of act- level of pain involved

Question 28

when will there not be true consent

Answer 28

where d deceives d as to their identity or the nature and quality of the act- TABBASUM/RICHARDSON

Question 29

TABASSUM

Answer 29

• vs were consenting to touching for medical purposes only

- consent as to nature of the act however ds deceit as to the quality of his act meant there was no true consent