Consent

What is consent?

A full defence created by common law that can’t be used on any offence higher than battery

Sexual Offences Act 2003 - “The legal definition of consent is generally understood as a voluntary agreement by a person to allow something to happen, with the freedom and capacity to make that choice”

Assisted suicide cases:

• Pretty 2002 - consent cannot be used as a defence to murder

• R v Purdy 2009

• Inglis 2010 - mercy killing is still murder

• Nicklinson 2014

What are the exception in which consent can be given to offence higher than battery?

• Bodily adornment - R v Wilson 1997

• Horseplay - R v Aitken 1992

• Lawful sporting activity - R v Coney 1882 - can’t be used for unregulated sports

• Medical treatment (surgery)

Deliberate bodily harm:

R v Brown 1994 - consent is not a defence to ABH/GBH

R v Donovan 1934 - technically consent is not a defence since there is no offence

R v Slingsby 1995 - no assault or battery so no unlawful force

Collins v Wilcock 1984 - “the exigencies of everyday life”

Public interest:

Consent can be given, but the defence can be denied if it is not in the public’s interest (social paternalism)

R v Brown 1994 - Ag’s Ref No.6 1980 - that level of violence is not acceptable

R v BM 2018 - extreme body modification

The nature of consent:

Individuals must have consented fully to the nature and qualify of the act

Gillick v West Norfolk AHA 1986 - established “Gillick competency” - to consent, a child must be mature enough and understand the nature of the consent required, the child must be able to make a reasonable assessment of the advantages and risks

What are the Fraser guidelines?

They apply specifically to advice and treatment about contraception and sexual health given to under 16s

The guidelines are:

• The young person cannot be persuaded to inform their parents/carers that they are seeking this advice or treatment

• The young person understands the advice being given

• The young person’s physical/mental health is likely to suffer unless they receive the advice or treatment

• It is in the young person’s best interest to receive the advise or treatment without their parent/carer’s consent

• The young person is very likely to continue having sex with or without contraceptive treatment

Disease:

R v Dica 2004 - transmitting HIV is classed as GBH - no informed consent

R v Golding 2014 - consent is not a defence to anything higher than battery

Informed consent:

R v Richardson 1988 - no fraud to identity, consent

R v Tabassum 2000 - no informed consent - sexual gratification not medical purposes

R v Melin 2019 - not qualified + lied about the procedure - no informed consent

Implied consent:

Wilson v Pringle 1987 - implied consent from horseplay

R v Barns 2004 - implied consent from sports

Consent to minor injury:

If you consent to minor injuries during horseplay, you can consent to any possible harm

R v Jones and Others 1986 - consent can be a defence to GBH if it is horseplay - LJ McCowan “Consent to engage in horseplay was a defence where there has been no intention to seriously injure”

R v Aitken 1992

Consent to medical procedures:

FGM - an offence in the UK and has similar rules to assisted dying (can’t take a girl abroad to do it) - The Female Genital Mutilation Act 2003 - major health concerns

Mistaken belief in consent:

If the D genuinely, but mistakenly, believes that the victim is consenting, this may provide a defence to a charge of non-fatal offences

R v Olugboja 1982 - coercion by fear - no consent despite submission

Burrell v Harmer - unable to comprehend the nature of the act so there was no consent

Statutes:

Sexual Offences Act 1956 (amended 1976) - the law considers whether the victim did not consent and whether the defendant did not reasonable believe there was consent

Sexual Offences Act 2003 - consent means that a person agrees by choice, with the freedom and capacity to make the choice

Domestic Abuse Act 2021 - consent is not a defence to serious harm in domestic abuse or sexual violence cases, you cannot legally agree to be harmed even in “rough sex”