CONSENT

  • general defence to some non-fatal offences against the person, but never a defence to murder or offences where serious injury is caused

  • law wont recognise consent for any harm above ‘minor injuries’

  • defined as a ‘voluntary agreement’ by a person with the capacity to make that decision to allow an act to be carried out

REAL CONSENT

  • idea that V must be consenting to the nature and quality of the act that takes place

  • V cannot be misled in anyway as to who their identity or what the action is

  • if no fraud as to the identity of person performing treatment, or treatment itself, NG: R V RICHARDSON: suspended dentist who carried on work, came under investigation because a patient thought she was drunk. Charged with ABH but argued consent, accepted.

  • consent given if V’s misled is not consent (as its fraud) R V TABBASSUM: D pretended to be medical professional conducting breast cancer survey, to examine woman’s breast. G of indecent assault.

  • consent is obviously not real if it comes from coercion or threat R V OLUGBOJA: raped two young girls, argued consent because she didn’t scream or resist and took her trousers off.

TRUE CONSENT

  • concerned whether V is actually legally capable of giving consent- must have legal capacity to give consent. Largely centres around children.

  • tattooing on minors cannot be consented BURRELL V HARMER: two boys (12 and 13) tattooed. CH at those ages couldn’t fully comprehend the nature of the act.

  • ‘Gillick Comptence’- children will be considered capable of giving consent to medical situations if they can understand the advice, cannot be persuaded to tell their children, likely to behind having sex, maybe mentally or physically affected if not offered the advice. GILLICK V WEST NORFOLK: Mrs G devoted catholic, had 5 girls under 16, felt that the fact doctors can provide contraceptive advice to girls under 16 without knowledge of parents undermined parental rights and encouraged underage sex.

IMPLIED CONSENT

  • courts understand that not every form of contact should result in an offence- would be absurd and unrealistic

  • ‘everyday jostling’ not needed consent COLLINS V WILCOCK

  • confirmed in WILSON V PRINGLE

  • in law, you cannot consent to serious harm. Courts will ONLY allow consent as defence to s47 if there is a valid reason in the public interest. So:

  • you can use consent as a defence to battery

  • you can only use consent as a defence to s.47 if there is a public interest reason i.e exceptions

  • you cannot use consent for s20, s18 or fatal offences

HORSEPLAY

  • ‘rough and undisciplined play, where there is no anger and no intention to cause bodily harm’

  • consent can exist in situations of ‘rough horseplay’ R V JONES: schoolboys convicted of GBH (applies to ABH too) when threw friend into air during ‘birthday bumps’- resulting in severe injury.

  • but it does have limits R V P: D and V were 16, completed exams and got drunk, went to river and D threw V off. Horseplay rejected, no genuine belief V was consenting as witnesses saw his resisting being thrown.

  • not only limited to children R V AITKEN: members of RAF celebrating, put on fire resistant clothes and set fire to each other, two officers suffered 3rd degree burns. Accepted consent as V had joined in on setting fire to others

LAWFUL SPORT

  • players in some games which involve risk of injury must accept that risk, and so a player who does the attacking cannot be guilty of assault even if accused infringes the ‘rules of the game’

  • but if shown blatant reckless disregard of v’s safety , maybe be guilty of assault

  • as long as injury in game, even if breaks rules, there is implied consent R V BARNES: football match, D broke V’s leg

  • R V JOHNSON: rugby player bit off another player’s ear in scrum. Clearly not within play and GBH.

  • R V MOSS: rugby player punched another player in face. CH although rugby is a contact sport ‘it is not a licence for thuggery.’

MEDICAL PROCEDURES

  • consent to medical procedures usually sought and given by patient

  • can be presumed in life-saving circumstances

  • more controversially, courts idling to accept implied consent in situations where D lacks capacity to consent

  • if in d’s best interest, and believed d would consent if they could, then allowed F V WEST BERKSHIRE HEALTH AUTHORITY: V (severely mentally disabled) became pregnant but had verbal capacity of 2 year old and mental one of a 4 year old. Evidence from psychiatrist that it’d be disastrous for her to be pregnant, and contraception wouldn’t be taken properly. Completed sterilisation with family’s support.

FIGHTING

  • a person cannot consent to fights that result in ABH or greater harm- regardless if in public or private A-G REF NO 6 1980: 2 boys (17 and 18) had fight in street, resulted in bruising to face and bleeding nose.

SEX

  • not appropriate for violent conduct to be excused because there is consent

  • its ABH if ‘the degree of actual and potential harm was such… as to make it a proper cause from the criminal law to intervene’ R V EMMETT: during sex, woman agreed to have her head covered with bag and tied tightly, caused her to lose consciousness. Allowed him to set fire to her breast.

  • consent does not make an unlawful act lawful- no consent in this case as harm too severe R V DONOVAN: V consented to go to D’s garage knowing he would beat her for his own sexual pleasure.

  • courts allow certain degree of ‘rough’ behaviour in sex however, even if does result in jury, provided it is consented for: R V SLINGSBY: penetrated V with fingers whilst wearing signet ring causing cuts to V and resulting in blood poisoning. D charged with Unlawful Act Manslaughter resulting from s47, but CH was valid consent, battery was consented to and greater harm was just an unfortunate and accidental consequence of wearing the ring.

  • consent cannot be a defence to ABH or GBH) held in R V BROWN: sadomasochistic activity between a group of men, extreme sexual activity. Also wanted to protect society against ‘a cult of violence.’

  • exception in R V WILSON (distinguished from R v Brown) where A husband branded his initial on each of his wife’s buttocks with a hot knife. CoA distinguished this from R v Brown as

  1. the wife wanted it, not out of desire for pain, but as an adornment- this was akin to tattooing and cosmetic enhancement, rather than pain for sexual pleasure

  2. it is not in the public interest that the activities of a husband and wife in the matrimonial home should be regulated