consent - notes

Often used as a defence to non-fatal offences against the person

It can never be a defence for murder or serious injury

Consent is decided on the facts of the case rather than fulfilling elements of the defence

• V must consent to the nature & quality of the act

~ R v Donovan - where a persons acts with intention to inflict bodily harm, the victims consent cannot covert unlawful conduct into lawful

Bodily harm: ‘any hurt or injury calculated to interfere with the health or comfort of the complainant’

~ R v Slingsby - cannot convict where an unforeseen & unintended injury had occurred arising from consensual activity

~ R v Tabassum - Consent will be negatived if a person is deceived as to the nature or quality of the act performed. In the absence of true consent, the acts were indecent

~ R v Olugboja - consent cannot be given through force, threat, or deception

. Consent must occur before the act

. Every consent includes submission, but not every consent includes consent

~ R v Dica - there can be no consent to the risk of infection where transmission is deliberate infection with intent

Overruled the decision in R v Clarence where a wife has implied consent to sex even if she has no knowledge of the risk to her health if the disease was transmitted

Now if a person who knowing they are suffering from HIV or some other serious sexual disease, recklessly transmit it through consensual intercourse would’ve inflicted GBH on a person from who the risk is concealed

~ R v Konzani - the victims could not have given proper consent as they were not honestly informed

• Implied consent

Wilson v Pringle - held, ordinary ‘jostling’ of everyday life were not battery

Consent is not a defence to:

. Properly conducted games & sports

. Lawful chastisement or correction

. Reasonable surgical interference

. Dangerous exhibitions, cosmetic enhancement, etc

~ Attorney Generals ref (No 6 1980) - even though V consented to the fight, violence in a public place, other than in sport, amounted to a breach of the peace & was unlawful

~ R v Barnes - participation in a contact sport generates implicit consent to a risk of injury, possibly GBH

~ R v Brown - cannot consent to GBH

~ R v Wilson - it was not in the public interest that such consensual behaviour (branding with a hot knife at his wife’s request) should be criminalised

~ R v Jones - a genuine mistaken belief in consent should be a defence

• Euthanasia

~ R (on the application of Pretty) v DPP - no one can consent to their own death