consent

When can consent be used as a defence

• Battery & assault

• Not ABH or GBH - following Attorney Generals ref No.6 as its not in the public interest

What must V do to constitute consent

V must consent to the nature & quality of the act

Case example for consenting to the nature of the act & what was held

R v Dica - V was unaware D was HIV positive

Held: she could not be said to have consented to the risk of the infection, & so had not consented to the true nature of the act

D was found guilty of GBH

Case example for consenting to the quality of the act & what was held

R v Tabassum - D falsely informed V’s he was medically qualified & was carrying out research for a cancer charity & they consented to him examining their breasts

Held: although the women had consented to the nature of the act, they had not consented to its true quality

What case contradicts R v Dica & what was held

R v Slingsby - V’s consent to a sexual act meant that the offence of battery was not established

Held: this meant there was no basis for unlawful act manslaughter after V died from an infected cut

What was stated in Collins v Wilcock

There is implied consent to limited everyday physical contact

Unlawful when contact goes beyond ‘limited everyday physical contact’ without consent

What was stated in Wiffin v Kincaid

Limited everyday physical contact includes includes touching to get someone’s attention

What are the exceptions to consent not being a defence to harm beyond assault/battery

1. Bodily adornment

2. Horseplay

3. Contact sports

4. Surgery

Case examples for bodily adornment & point of law

• R v Brown - group of men infected pain on each other for sexual gratification (none required medical treatment)

Held: Not an activity that could be consented to

• R v Wilson - D branded his wife with a hot knife (with consent), it became infected & the doctor reported D to the police

Held: it was not in the publics interest to allow individuals to consent to harm for the purposes of bodily adornment

Case example for horseplay & point of law

R v Jones - group of boys threw V’s into the air & failed to catch them & they suffered serious injuries

Held: consent was a defence as long as D believed it was present, even if mistaken

Case example for contact sports & point of law

R v Barnes - D’s conduct should only be prosecuted is it went beyond what a player can reasonably be regarded as having consented to by taking part & if it was sufficiently grave to be categorised as criminal

Case example for surgery

Burrell v Harmer - D tattooed 2 boys aged 12 & 13 causing their arms to become red & painful

Held: consent was not valid as they were too young to comprehend the nature of the act