Consent

Type of defence

Consent is a full defence

Can the V consent to the offence ?

• Cannot be used for murder, Pretty

• It can be a valid defence to assault or battery, Collins v Wilcock

• Cannot be a defence for anything above or including ABH, Donovan, unless it can be defined as:

Sporting activities

• If the players are acting within the rules of the sport then consent, even to serious injury, is valid.

• If slightly outside of the rules and the player is acting instinctively within the heat of the game could still be allowed, Barnes.

• If it is outside of the rules of the game not valid, Billinghurst.

Medical procedures

• Consent to medical procedures means agreeing to the harm associated with the risks.

• Tattooing is included, Burrell v Harmer.

• Branding is classed as tattooing, Wilson

Horseplay

• Jones – giving a person the bumps was enough for horseplay

• Aitken – RAF officers setting fire resistant suit on fire

• If the D genuinely but mistakenly believes that the V is consenting the defence can still succeed, Richardson and Irwin

• Cannot consent to harm through sexual activities, Brown, Emmett

Pretty

Cannot be used for murder

Collins v Wilcock

It can be a valid defence to assault or battery

Donovan

Cannot be a defence for anything above or including ABH, unless it can be defined as: Sporting activities

Barnes

If slightly outside of the rules and the player is acting instinctively within the heat of the game could still be allowed.

Billinghurst

If it is outside of the rules of the game not valid

Burrell v Harmer

Tattooing is included.

Wilson

Branding is classed as tattooing

Jones

giving a person the bumps was enough for horseplay

Aitken

RAF officers setting fire resistant suit on fire

Richardson and irwin

If the D genuinely but mistakenly believes that the V is consenting the defence can still succeed.

Brown

Cannot consent to harm through sexual activities

Is the consent genuine?

The consent must be valid and informed

Valid

Only valid if the V understands the nature of the act and know what they are consenting to.

• Must have the capacity to consent

• There may be an issue with being too young, Burrell v Harmer although the courts look at what person understands, Gillick

• There may be an issue with mental capacity, Mental Capacity Act 2007

• If a person submits through fear this is not consent, Olugboja

Burrell v Harmer

There may be an issue with being too young

Gillick

although the courts look at what person understands

Mental Capacity Act 2007

There may be an issue with mental capacity

Olugboja

If a person submits through fear this is not consent

Informed

• V must be informed as to the identity of the D and the nature and quality of the act, Dica,

• If the consent is obtained though fraud this is not consent, Tabassum although this decision was different in Richardson

Dica

V must be informed as to the identity of the D and the nature and quality of the act

Tabassum

If the consent is obtained though fraud this is not consent

Slingsby

Consent is only an issue if the D has the actus reus and mens rea of an offence.