Consent

What is meant by consent?

“Someone with adequate mental capacity voluntarily gives their permission to a particular act”→ this can be expressed or implied

-Consent is a general defence, used in various types of offences (Not applicable to murder, people not of sound mind or where there is no legal capacity)

What is the definition of consent under the sexual offences act 2003?

“a person consents if he agrees by choice and has freedom and capacity to make that choice”

s.74

Consent may be a defence to some non-fatal offences against the person, however it is never a defence for murder or to offences which cause what?

Serious harm or Serious injury

Who is the burden of proof on for defence of consent?

It is upon the prosecution to show lack of consent

What are the 4 main parts of consent?

• There must be real consent

• The Force applied must be for socially acceptable reasons

• Consent must be true and informed

• There can also be implied consent

How does the case of R V Donovan show consent?

R V Donovan (1934)

• D caned a 17-year old girl for the purpose of sexual gratification

• This caused bruising and he was convicted of indecent assault and common assault

• D appealed on the basis that V had consented to the act

• His conviction was quashed

• No battery where an individual has consented

A person can consent to common assault, but not to ABH or greater harm, unless it comes within the established exceptions such as:

• Properly conducted games and sports

• Reasonable surgical interference

• Tattooing

• Body piercing

• Horseplay/ Non fatal sexual offences (sometimes)

• Dangerous exhibitions

• Lawful Chastisement

What is the rule of consent in relation to murder/ethunasia?

Consent can never form a defence to murder, whether express or implied

How does the case of Rice show the law on consent in relation to duelling?

Rice

• Where V consents to running the risk of being killed, it is illegal and the dueller who inflicts the fatal wound is guilty of murder

How does the case of Pretty show the law on consent in relation to euthanasia?

Pretty

• Consensual killing, where V expressly consents to being killed (euthanasia) is murder

Which case showed that removal of treatment is not murder?

NHS Trust V Bland

• Bland was in a vegetative state and remained like that for over 2 years

• Bland was granted approval to disconnect the feeding tube by the court

• Doctor’s have a duty to act in the best interest of their patients, but this does not mean they have to prolong life

What is the rule of consent on Horseplay?

A person can consent to common assault

Lord Templeman said in R V Brown “There can be no conviction for the summary offence of common assault if the V has consented to the assault”

However, this cannot be serious harm or injury

How does the case of Jones show horseplay?

Jones

• 2 schoolboys tossed into the air by D, one broken arm and one ruptured spleen

• Genuine mistaken belief in consent to “rough and undisciplined horseplay” can be a defence

How does the case of Aitkin show horseplay?

Aitkin

• RAF officers set a friend on fire when he was asleep, whilst he was wearing fire-proof clothing

• They honesty believed he would have given consent and so their convictions for s.20 was quashed

Consent can be linked to public policy, which 2 cases shows this? (sado-masochism)

Brown and Wilson

Brown- sadomasochism is not allowed in law even though all parties had consented (still seen as serious bodily harm but the principle of Wilson should have been followed)

Wilson- acquitted even though melting candle wax was seen as serious bodily harm

Which case further illustrated the element of consent being linked to public policy?

Emmett

• D and his partner engaged in “high risk” sexual activity, which on one occasion left severe burns to the breasts

• The CoA would not allow D to plead consent for injuries caused for sexual gratification

What is the main rule in terms of consent when in relation to sports?

It is important to allow the defence in some situations otherwise contact sports wouldn’t be allowed

How does the case of Barnes show the ruling of consent in sports when it is valid?

Barnes

• Late tackle during an amateur football match.

• V suffered serious leg injury

• Criminal proceedings should only take place when sufficiently serious (as most sports have their own disciplinary proceedings and injury is an inevitable risk)

• CoA quashed the conviction as it was held that there was implied consent where the situation is reasonably expected within the game when conventionally played

How does the case of Billinghurst show the ruling of consent in sports when it is not valid?

Billinghurst

• D punched another player during a rugby match

• The punch occurred out of of normal game time.

• Held that while players consent to physical contact within the rules of the sport, they do not consent to deliberate acts of violence outside those rules.

• Consent was not valid

What did Lord Woolf say in the ruling of Billinghurst, when establishing the level of injury to be serious harm?

injury should be “sufficiently grave” - to avoid opening floodgates

Which AG reference must be taken into account for consent in terms of street fights?

AG ref 6 of 1989

• stated consent was not a defence to street fights there were exceptions including properly conducted games and sports.

• 2 Ds tried to settle a dispute in a street fights and then sought to rely on consent

What is meant by consent in terms of reasonable surgical (Medical) procedure and tattoos, body piercing etc.?

Injections, tattooing or branding and body piercings. All can be consented to.

Mentally capable adults can consent to reasonable medical treatment or refuse it, if unconscious, they will try and ask relatives- If not possible, if treatment is necessary, treatment can be performed without consent

Consent must be true and informed, what is meant by True consent?

The person actually agrees to the act- there is no deception or misunderstanding about what is happening.

How does the case of Richardson show true consent?

Richardson

• A qualified dentist carried out work on patients despite having been suspended from practise by the dentists’ governing body

• The patients wouldn’t have consented had they known that she had been suspended

• However, their consent was valid as there was no fraud as to her identity, the fraud related to her right to practise

How does the case of Tabassum show true consent?

Tabassum

• D claimed to be medically qualified so that women would allow him to inspect their breasts

• The women had all consented

• He wasn’t medically qualified so he had gained consent by fraud

How does the case of Olugboja show true consent?

Olugboja

• D met Vs at a club and offered them a lift home

• Instead, he took them to the other D’s house

• Both Ds intimidated the girls into having sex

• It was held that just because a V of rape doesn’t scream, it doesn’t mean they consented

• If V is afraid, consent is NOT real

Consent must be true and informed, what is meant by Informed consent?

Where the V understands the nature and quality of the activity they are agreeing to, and all the risks asscoiated with it

How does the case of Clarence show Informed consent? (overruled by Dica) (HIV)

Clarence

• D infected his wife with an STI during consensual sex

• It was held that she had given consent and it was irrelevant that her husband had an STI

How does the case of Dica show Informed consent? (HIV)

Dica

• D knew that he was HIV positive and had sex with a consenting adult without disclosing this fact

• She had consented to sex but not to being infected with HIV

• Therefore consent was invalid as she did not know the nature and quality of the act she was consenting to

How does the case of Konzani show Informed consent? (HIV)

Konzani

• D infected 3 women with HIV following unprotected sex with them

• Judge directed the jury that they must question whether V would have continued with the activity if they were aware of the risks- if not, then there is no consent as it is not informed and valid

How does the case of Slingsby show Informed consent? (unlawful act manslaughter)

Slingsby

• D was charged with unlawful act manslaughter

• He and V engaged in vigurous sex and it led to her being blood poisoned by an injury caused by D’s signet ring, causing V to die

• Her consent meant that there was no battery and therefore no conviction of murder (charged with manslaughter)

How does the case of Burell V Harmer show Informed consent? (Tatooing)

Burell V Harmer

• D had given 12 and 13 year old boys tattoos with their consent

• Court felt the boys lacked the capacity to make the decision

• It was not necessarily their age, but their liability to recognise the consequences of having a tattoo

How does the case of Gillick show Informed consent? (contraceptive pill)

Gillick

• G had tried to obtain the contraceptive pill without her parents’ knowledge at the age of 15

• Provided G understood the advice and that her decision was in her best interests, she was able to decide to use the pill without her parents’ input

• (Gillick competence)

What is meant by Implied consent?

Implied consent is where the V is assumed to consent e.g. to minor touchings in everyday life

Implied consent also applies to sports e.g. Barnes

Which case shows implied consent involving a PO where implied consent didn’t apply to D?

Collins V Wilcocks

• No implied consent to restraint which was not part of a lawful arrest

• A PO wished to question a woman who walked away, but the PO, in order to stop her, grabbed her arm

• The PO had no power to detain the woman and he was acting outside his powers

Which case shows implied consent involving a PO where implied consent applied to D?

Mcmillan V CPS

• A PO went into a garden, took a hold of D’s arm, who was convicted of being drunk and disorderly and escorted her out

• The courts decided that the PO was acting within the bounds of what was “generally acceptable”

What is meant by mistaken belief in consent?

An “honest mistake” about whether or not V is consenting, it will still provide a defence

How do the cases of Jones and Aitkin show a mistaken belief in consent?

Both cases D’s honestly thought V consented to the activities

Also must take into account that children lack full capacity to understand the consequences of their actions

How does the case of Richardson and Irwin show a mistaken belief in consent?

Richardson and Irwin

• Drunken students were acquitted of s.20 after dropping a friend off a balcony because they believed he was giving consent