CONSENT

Question 1

1. defence of consent

Answer 1

may apply, a full defence which can be used for non-fatal offences against the person, but not to fatal offences. It can be expressed or implied

Question 2

2. what is the general rule of consent

Answer 2

is that it is not in the public interest that people should cause each other bodily harm

Question 3

3. what are the exceptions of the general rule

Answer 3

there are exceptions when it is in the public interest to allow the defence of consent where bodily harm is caused —> attorney general ref (no6 of 1980)

Question 4

4. games & sport + consent

Answer 4

if properly conducted where the injury takes place within rules of the game (Coney, Barnes) actions outside rule of games cannot be consented to (Lloyd, Johnson) —> street fighting id unlawful, regardless of consent —> AGs Ref (No6 of 1980)

Question 5

5. surgical interference

Answer 5

male circumcising for religious purposes (Re:J) —> female genital multiltation is illegal

Question 6

6. lawful chastisement

Answer 6

is reasonable, proportionate & not cruel under S 58 of the Children Act 2004 (A v UK)

Question 7

7. implied consent

Answer 7

there’s implied consent to ordinary ‘jostling’ of everyday life, where in theory a battery has taken place (Wilson v Pringle)
and to ‘rough horseplay’ meaning friendly violence

Question 8

8. infection when having sex

Answer 8

consent can be given to the risk of infection when having sex, but not if there’s an intention to spread infection (Dica)

Question 9

9.sedo-masochistic sexual activities

Answer 9

consent isn’t a defence for sedo-masochistic activities (Brown,Emmett)

Question 10

10. what does the case of Olugboja set out

Answer 10

submission through fear isn’t consent

Question 11

11. body adornment

Answer 11

consent could be a defence to such acts if considered to be ‘body adornment’ like tattoos & piercings (Wilson) but not to procedures such as ‘tongue splitting’ (Rv BM)

Question 12

12.consent must be real

Answer 12

which means victim must have knowledge of the relevant facts & there must be no deception (Tabassum, Dica) —> v must also be able to compare nature of act (Burrell v Harmer). However, not all fraud will invalidate consent (Linekar)

if v gives consent to the wrong D, this will not be real (Elbekkay)

Question 13

13. Genuine mistaken belief

Answer 13

that v consenting can be a defence (Aitkhan)

Question 14

14. children

Answer 14

generally held that children cannot consent on own belief (Burrell v Harmer) and in addition, children under 16 must be held to be ‘Gillick-competent’ to give effective consent

Question 15

15. mentally incapacitated

Answer 15

if v is mentally incapacitated, decisions may be made on their behalf as long as they are in the best interest of v (RE:F)