consent

Question 1

The defence of consent may apply, a full defence which can be used for

Answer 1

non-fatal offences against the person, but not to fatal offences. It can be expressed, or implied.

Question 2

The general rule is that it

Answer 2

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

Question 3

However, there are exceptions when it

Answer 3

is in the public interest to allow the defence of consent where bodily harm is caused, as set out in Attorney General’s Reference (No 6 of 1980). Examples are:

Question 4

(a) games and sports if properly conducted where

Answer 4

the injury takes place within the rules of the game, (Coney, Barnes). Actions outside of the rules of the game cannot be consented to (Lloyd, Johnson). Street fighting is unlawful, regardless of consent (AGs Ref (No 6 of 1980).

Question 5

(b) surgical interference,

Answer 5

male circumcision for religious purposes (Re: J). Female Genital
Mutilation is illegal.

Question 6

(c) lawful chastisement if

Answer 6

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

Answer 7

ordinary ‘jostlings’ of everyday life, where in theory a battery has taken place (Wilson v Pringle), and to ‘rough horseplay’, meaning friendly violence (Jones).

Answer 8

infection when having sex, but not if there is an intention to spread the infection (Dica).

Answer 9

sado-masochistic sexual activities, (Brown, Emmett).

Answer 10

‘body adornment’ like tattoos and piercings (Wilson), but not to procedures such as “tongue splitting”, (R v BM).

Answer 11

not consent (Olugboja).

Answer 12

knowledge of the relevant facts and there must be no deception, (Tabassum, Dica).

Question 13

V must also be able to comprehend the nature of the act (Burrell v Harmer). However, not all fraud will

Answer 13

invalidate consent. (Linekar). If V gives consent to the wrong D, this will not be real (Elbekkay).

Answer 14

the victim is consenting can be a defence (Aitken).

Answer 15

cannot consent on their own behalf (Burrell v Harmer), and in addition, children under 16 must be held to be “Gillick-competent” to give effective
consent.

Question 16

IF RELEVANT: If V is mentally incapacitated, decisions may

Answer 16

be made on their behalf, so long as they are in the best interest of V (Re: F)

Question 17

To conclude,

Answer 17

the defence of consent may apply, so D may be found not guilty.