Criminal law: The defence of consent

Introduction

Not usually a defence at all, as if there is consent no illegal act has been performed

Murder

A person cannot consent to being killed

R v Pretty

R v Pretty

Assisted suicide by a husband for a willing wife who had motor neurone disease deemed unlawful

Non-fatal offences

Allowed in some instances but application is limited

Allowed for serious injuries if falls into recognised exceptions

Exceptions: Sports games, surgery.

R v Brown

R v Brown ( Non-fatal offences)

Established consent is a defence to battery but not serious crimes like GBH

Sporting activities

When incident goes beyond rules of the sport there is potential for criminal liability

Issue comes when discussing the extent of consent

R v Barnes

R v Barnes

The prosecution argued the defendant's actions were so reckless they couldn't be deemed legitimate, akin to an assault.

Sporting activities - Things for jury to consider

1. Type of sport

2. Level of play

3. Nature of act

4. Degree of force used

5. Extent of risk of injury

6. State of mind of injury causer

Medical procedures

Mist can be readily consented to agreeing to any potential risks and harm

Can be withdrawn at any time

Regulated by Tattooing and Piercings Act 1969

Horseplay

Relevant to unregulated sports and games

R v Jones

R v Jones 1986

Consent to rough and undisciplined horseplay is a defence and even if there was no actual consent

Sexual activities

Law concerned with morals and transmissions of STDs

R v Dica

R v Slingsby

R v Brown

R v Dica

Convicted for GBH as woman consented to sex not risk of infection

R v Brown (Sexual)

Consent is not a valid defence to sadomasochistic activities

R v Slingsby

No unlawful act was committed by D so could not be tried

Genuine consent

Appearing to give consent is not enough

Question is whether the v has sufficient understanding and intelligence of the sitiuation to give consent

Burrell v Harmer

Consent invalid as age of boys showed they did not understand the pain involved with the nature of the act

R v Tabassum

D convicted of assault as V’s only consented purely on medical grounds

R v Richardson

D of consent allowed after dentist continued to treat after being disqualified as the V’s were not deceived

Established that the ‘identity of a person’ does not extend to their qualifications

Answer plan

Consent cannot be used for anything above a battery in the OATP - R v Brown

Consent is available in regulated sports or surgery - Apply to scenario

R v Barnes = conduct must be sufficiently serious

Go through factors for jury to consider

P must prove intent of D for consent to be invalid