Defence 1: Consent

What type of defence is consent?

It is a common law defence

It is a complete defence

What did the case of Brown state about consent?

You cannot consent to ABH or above (except in limited circumstances) and so only works for assault and battery.

Case of Pretty: Murder cannot be consented to

Case of Leach: s.18 GBH cannot be consented to

What is Valid Consent?

For conesent to be valid the V must have legal capacity. This means they can’t be underage, have mental disabilities or be intoxicated

Burrel v Harmer: Held that the boys were too young to consent to tattooing.

What did the case of Gillick outline for valid consent?

If the V is underage but has ‘Gillick competence’ they can consent. (E.g. underage girls can consent to being given contraceptive pills)

What is True Consent?

The V must know the identity of the D (Tabassum - D carried out breast examinations and wasn’t a doctor so consent defence failed)

The V must know the nature and quality of the act (Dica - Transmission of HIV could not be consented to)

What is Fraudulent consent?

If the D received consent via fraudulent means, the consent will be invalid.

Case of Richardson: D was a dentist who had been struck of the dentistry register or malpractice. She continued to work. Held that patients had consented as there was fraud related to identity

What are the 5 public policy exceptions to consent outlined in the case of Brown?

1. Organised sport

2. Tattooing and branding

3. Sexual activity

4. Horseplay

5. Surgery

1. Organised Sport

Consent is only allowed if it happens within the rules of the game (‘‘on the ball’’ - Barnes - D tackles another player, so it was consented to)

If the act occurs outside of the rules of the game (‘‘off the ball’’) it cannot be consented to - Billinghurst

2. Tattooing and branding

The obiter dicta in Brown said that tattooing could be consented to, which was used in the case of Wilson and allowed branding to be consented to

3. Sexual activity

For inadvertant violence the defence is allowed (Slingsby - signet ring caused small internal cuts which got infected, held the defence could be used)

For sadomachinism the defence is NOT allowed - Brown, Emmett (breasts were set fire to)

R v Lock - D and V recreated scenes from fifty shades of gray. Jury accepted this was consensual behaviour. (They were heterosexual, Brown was not? - AO3)

4. Horseplay

Consent is valid for undisciplined horseplay.

Jones - child got a ruptured spleen in a school playground, could be consented to.

Atiken - RAF trainees set fire to each other - held it was consented to.

This creates a ‘boys will be boys’ principle which is very outdated.

5. Surgery

This can be consented to as long as true and valid consent is given.

Re J - circumcision

Can euthanasia be consented to?

Currently NO. Case of Pretty states that murder cannot be consented to, and those who assist suicide will be charged with assisting suicide.

The End of Life Bill (proposed in 2024) may change this.