oapa defence - consent

collins v wilcock

‘most of the physical contacts of ordinary life are not actionable because they are impliedly consented to by all who move in society’

ag’s ref (no6 1980)

‘it is not in public interest that people should try to cause or should cause each other ABH for no good reason.’

r v brown

‘when no abh is caused, the consent of the person affected precludes him from complaining… even when violence is intentionally inflicted and results in abh, wounding or serious bodily harm, the accused is entitled to be acquitted if the injury was a foreseeable incident of a lawful activity in which the person injured was participating’

r v coney

prize fighting not in public interest, so consent isn’t a defence. fighting generally which involves/might lead to a breach of peace is illegal and unlawful.

r v jones

rough and undiscipline play where there is no intention to cause injury, consent is a defence.

r v barnes

‘if what occurs goes beyond what a player can reasonably be regarded as having accepted by taking part in the sport’ then defence of consent won’t be successful

‘the type of sport, the level at which it is played, the nature of the act, the degree of force used, the extent of the risk of injury, the state of mind of the defendant’ are all relevant factors in deciding whether d’s actions are beyond threshold

r v bradshaw

intentional infliction of injury where the sport does not demand it will not be lawful

r v brown

sadomasochism not an excepted category

r v wilson

“Consensual activity between husband and wife, in the privacy of the matrimonial home, is not, in our judgment,  normally a proper matter for criminal investigation, let alone criminal prosecution.”

r v hobday

cannot consent to cutting and branding. wilson decision limited to its own facts (although very similar - still a case regarding branding)

r v slingsby

where d only intends a battery and has consent to a battery but causes accidental abh or worse, the act will not be unlawful

r v meachen

‘if the touching was with consent, then the fact that in the course of the consensual activity some bodily injury, even serious bodily injury, resulted accidentally and unintentionally, then as a matter of principle no criminality can attach’

r v dica

consent to reckless transmission of stds will only be valid if it is informed

r v konzani

“There is a critical distinction between taking a risk of the various, potentially adverse and possibly problematic consequences of sexual intercourse, and giving an informed consent to the risk of infection with a fatal disease.

r v rowe

consent is irrelevant if d intentionally sets out to infect another person

r v bm

body modification is not in the public interest/an excepted category

unlawful if it causes gbh

sticks by judgement made in r v brown - consent is not a defence to serious bodily harm if the injury caused is significant and intentional

r v jones

‘we do not think that [the lcj in ag’s ref (no6 1980)] intended the list to be exhaustive’

r v bm (other legal categories)

suggests courts shouldn’t be willing to recognise any entirely new exceptions

r v konzani (belief in consent)

‘where consent does provide a defence to an offence against the person, it is generally speaking correct that the defendant’s honest belief in the alleged victim’s consent would also provide a defence… unless the consent would provide a defence, an honest belief in it would not assist the defendant’