Defences Flashcards
(24 cards)
What is effective consent to assault and battery?
- Mental capacity
- Knowledge
- Absence of fraud
- Absence of duress
- Individual and decision specific
Informed consent: Konzani
- Knew he was HIV positive, had sex with 3 women who didn’t know
- They could only consent if they knew he was positive
- Distinction between taking risk of potentially negative consequences of intercourse and consenting to risk of contracting fatal disease
- Silence was incongruous with genuine belief informed consent was present
Informed consent: Dica
- Knew he was HIV positive
- Had sex with 2 women who contracted
- D’s victims had been defrauded as to risk of infection - and not consented to bodily harm
- Distinction between couple who consented to have sex and who consented to risk of contracting HIV
- You cannot consent IN ORDER to get HIV
General rule: Fraud as to identity of the defendant
- If you tell someone you’re someone you’re not, and consent to touching them, this is based on fraud
Case: fraud as to identity
- R v Melin
- Administered botox for cosmetic purposes by beautician, V suffered severe reactions
- Fraud as to medical qualification
- Deception as to identity as a doctor where integral to their identity can vitiate consent as a matter of law
- Condition for giving consent was that it was by a medically qualified practitioner
Consent as to the quality of the act
- Tabassum [2000]
- D examined womens breasts under pretence of conducting research on breast cancer
- Vs consented to the research, not to being touched for other purposes
Consent as to sado-masochistic activities
- R v Brown [1994]
- D vaused V injuries amounting to ABH and GBH during private, consensual sado-masochistic sexual activities
- Precautions taken, no serious injury intended
- Held: Sado-masochism is NOT a lawful activity
What can you consent to?
- Common assault and battery
- Where ABH, GBH or wounding is involved, it is typically unlawful unless it falls into a protected category
R v Brown - Overarching rule
Consent is not available as a defence, unless the defendant could show that policy and public interest required the activity to be classified as lawful
R v Brown - Lawful Activities
- Parental chastisement
- Surgery
- Ritual circumcision (male)
- “Horseplay”
- Religious flagelation
- Tattooing
- Ear-piercing
- Organised sports
Parantal chastisement
- Hapley (1860)
- Only applies to parents, only applies to assault and battery
- Force must be reasonable and proportionate
- Involve no cruelty
Case that attempts to distinguish Brown
- Wilson [1996]
- V asked D to brand his name onto her bottom
- Mrs. Wilson instigated the act
- There was no agressive intent
- Tha analogy was with tattooing
- The privacy of the matrimonial home
Emmett [1999]
- Further distinguished Brown/Wilson
- D and fiancee engaged in consentual sexual activity involving partial strangulation and setting breasts on fire
- No distinction between sado-masochistic heterosexual/homosexual activity
- Distinguished Wilson, V subject to far greater harm
Rule/case on Horseplay
- Jones
- Schoolboys threw other pupils into air
- One ruptured spleen, one broken arm
- Rough and undisciplined play should be added to the list of lawful activities (part of growing up)
- Ds could rely on consent of the victim as a defence where there is no intention to cause injury
Extreme example: Horseplay
- Aitken [1992]
- Thought victim’s flying suit was fire-retardent, poured white spirit onto it and set it alight
- V had life-threatening burns across 35% of body
- Ds could rely on consent as a defence if they genuinely believed the victim was consenting
Intoxication and failure to realise lack of consent
- Richardson and Irwin [1999]
- Two students held friend over balcony and dropped him
- Realised he wasn’t consenting
- Would have realised that had he now been drinking
Billinghurst
- Presumed consent does not apply where D injures V outside the “course of play” in a sport
Do rugby players consent?
- Deemed to have consented to a force of a kind which could reasonably be expected to happen during a game
Donovan - “Manly diversions”
“Manly diversions” such as sport are in the public interest, for example in keeping men fit for war.
Barnes
- Very late sliding tackle broke football oponent’s leg
- Court recognises that in highly competitive sports, conduct outside the rules is expected to occur in the heat of the moment
- Objective requirement, not dependent on the views of individual players
- Type of sport, level of play, nature of act, mindset of defendant are likely relevant
AG’s reference (No. 6 of 1980)
Fights where ABH was caused or intended are unlawful regardless of consent.
Donovan
- Sexual gratification beating V with such force that inflicting bodily harm is a probable consequence is unlawful irrespective of consent
Body modification?
- BM
- No good reasom why it should be attempted, akin to unlicensed surgery rather than piercing
Where was it clarified that it is not possible to consent to the infliction of serious harm for the purposes of sexual gratification
Domestic Abuse Act 2021 s71(2)
