Defences: Consent Flashcards
(33 cards)
What is the defence of consent?
The defence of consent is a general defence but mostly used for non-fatal offences. It can be a defence to all non-fatal offences but not to murder. Where consent is allowed then it must be real consent. The victim has to understand what they are consenting to. This is particularly relevant for children and people with mental disabilities.
Burrell V Harmer 1967?
The defendant tattooed two boys aged 12 and 13. Their arms became inflamed and painful and the defendant was convicted of ABH. He tried to argue that they had consented but the Divisional Court held there was no consent as they did not understand the nature of the act. They would not have understood the level of pain involved.
In what situation is consent not true?
When obtained by fraud; this can occur where the victim is deceived as to;
- the identity of the person.
- the nature and quality of the defendant’s act.
R V Richardson 1998?
Richardson was a dentist who was suspended from practice but carried on treating her patients. She was convicted of ABH as the prosecution argued that the patients would not have consented had they known she was not supposed to practice. The Court of Appeal allowed her appeal, she had not informed them she was no longer qualified but she had not deceived them in any other way. The Court of Appeal said that patients consented to treatment by her and it was irrelevant that they might or would not have consented if they knew the truth.
R V Tabassum 2000?
Tabassum examined the breasts of several women telling them it was part of his medical research. In fact he was doing it for his own enjoyment. He argued that they had consented. The Court of Appeal upheld his convictions under the Sexual Offences Act 2003 as the women were only consenting for medical purposes they had been deceived as to the ‘quality’ of the act so they were not really consenting.
R V Dica 2004?
The court rules that consenting to sex did not mean automatic consent to any incidental risk of injury or infection. The defendant knew he was HIV positive and had sex with two women who were unaware of that. The victims had consented to sex but they would not have done had they known f the risk of infection. He was convicted of Section 20 GBH. This ruling was followed in the similar case of R V Konzani 2005. In Yaser 2008 the defendant pleaded guilty to GBH for recklessly transmitting Hep B.
What type of consent has developed recently?
The doctrine of informed consent.
What is the scope of consent?
The courts have set limits on a persons right to harm themselves. The courts try to balance between the seriousness of the harm consented to and the social usefulness, if any, of the activities involved. We all impliedly consent to assault and battery, everyday life would be difficult otherwise. We all impliedly consent to jostling in the street, on the tube etc.
Collins V Wilcock 1984?
It was said that most physical contacts of ordinary life are not actionable because they are impliedly consented to. More serious injuries, from ABH upwards, cannot be consented to unless the situation falls into one of the accepted public policy exceptions recognised by the law.
Exceptions - when may consent to more serious injury?
- contact sports
- horseplay
- tattooing and branding
- sexual activity
- surgery
- haircuts
How does a victim consent to more serious injury in contact sports?
In sports such as boxing, football and rugby the defendant consents to the risk of injury but within the rules of the game.
Attorney-General Reference No 6 of 1980?
Licensed boxing under the Queensbury rules if allowed, the victim consents to the risk of injury but bare-knuckle fighting is not allowed.
R V Billinghurst 1978?
The defendant punched an opponent in the face in an off the ball incident during a rugby match and fractured his jaw. It was held that the victim had not consented and the defendant was convicted of Section 20 GBH.
R V Barnes 2004?
Where the defendant was convicted of Section 20 GBH following a ‘late unnecessary, reckless and high crashing tackle’. The Court of Appeal allowed his appeal and it was ruled that prosecution should be bought against a player only if his conduct was ‘sufficiently grave to be properly categorised as a criminal’. Lord Woolf said participants in sports impliedly consent to risk of harm, relevant factors to take into account might be the type of sport, the level it was being played at, amateur or professional, nature of the act and the degree of force used.
R V Moss 2000?
The defendant was convicted of Section 20 GBH where during the course of rugby match he punched an opponent in the face resulting in a fractured eye socket. The defence was unavailable.
How does a victim consent to more serious injury in horseplay?
Deliberate physical contact in the school playground and elsewhere might involve a mutual risk of potential harm. This is a contentious issue because her the law allows for defence of consent for rough horseplay but it may be perceived by some bullying, although the courts seem to have insisted on a lack of intention to cause injury.
R V Jones and Others 1987?
Some boys were injured having been thrown in the air by their schoolmates. One had a ruptured spleen and broke his arm. The defence of consent was accepted.
R V Aitken and Others 1992?
The people involved were RAF officers and set fire to the victims fire resistant suit in an ‘initiation ceremony’. The victim was severely burned but their convictions were quashed.
How does a victim consent to more serious injury in tattooing and branding?
Consent is a valid defence for tattooing and branding.
R V Wilson 1997?
The defendant branded his wifes bottom with a hot butter knife and his conviction was quashed on the grounds that she had consented and that branding was a ‘bodily adornment’ similar to a tattoo.
How does a victim consent to more serious injury in sexual activity?
Injury accidentally inflicted during sexual activity between two consenting adult is not assault, even if one of the parties dies.
When can a victim not consent to more serious injury in contact sports?
The courts do not accept consent when injury is caused during sado-masochism.
R V Slingsby 1995?
The defendant and the victim had consenting intercourse and he accidentally scratched her with his signet ring. She suffered internal cuts and died of septicemia. The court held there was no assault as the victim had consented so the defendant was not guilty of unlawful act manslaughter.
R V Brown 1994?
A group of gay men over a 10-year period willingly and enthusiastically took part in acts of violence against each other for sexual pleasure. Everyone involved consented, no one complained to the police, no one sought medical treatment and no one suffered permanent injury. The police discovered the activities by accident and they were all charged with various offences under the OAPA 1861. They were all convicted and their appeals were rejected by the Court of Appeal and the House of Lords.
