Consent

When cant consent be a defence?

• Murder

• Offences where serious injury is caused

Is consent a full defence?

• Yes

• R v Slingsby

What are the three considerations of consent

• Is the offence one that can be consented to?

• Is the consent provided real and genuine?

• Does the situation fall within an exception to general rule?

1) Is crime committed one that can be consented to?

• Lawful consent is only a valid defence to assault and battery, but not anything else unless fits into recognised public policy exception.

2) Is the consent provided by the victim real and genuine?

• In order for consent to be a valid defence, it must not be obtained by truth, and can be affected by the identity and non-disclosure of disease.

2.1) Express Consent

• These are situations where we are asked specifically asked verbally, in writing, before a procedure otherwise amount to an assault. 

2.2) Implied Consent

• Implied consent is where you do not explicitly agree to it through where people inevitably come into contact with one another. 

• Wilson v Pringle - it was held that ordinary ‘jostlings of life’ did not constitute battery.

2.3) Real Consent

• Consent must be real for it to be valid. This means the victim must have full knowledge around the consent that is given.

Effect of identity on consent

• Identity may lead to fraud - medical qualifications were in question in R v Tabassum.

The effect of consent on transmission of disease

• R v Dica

3) Does the situation fall within the exception to the general rule?

• AG’s Ref 1980 - street fights were not allowed due to not possible to consent to harm oneself.

3.1) Surgery and medical procedures

• Burrell v Harmer - children not able to consent generally on their own behalf if under 16. If successful to the Gillick competence, they can. 

3.2) Tattooing and piercing

• V give express consent to tattoo

• R v Wilson

Body modifications must be carried out by medical experts - R v BM.

3.3) Boxing and similar contact sports

• R v Coney

3.4) Sado-masochism

• Where defendant commits serious harm, no consent will be valid - R v Brown.

3.5) Properly conducted sports

• Deliberate and unnecessary infliction of injury cannot be consented to, even in rough sport - R v Johnson.

3.6) Horseplay

• Horseplay essentially means engaging in rough undisciplined play - R v Aitken

3.7) Sexual activity

• The risk of injury involved in consensual sexual activity, will be a viable defence.