Defences to non-fatal, non-sexual OAPA; Lawful Chastisement/ Consent

Question 1

what are the 2 defences to non fatal non sexual OAPA offences

Answer 1

-lawful chastisement
-consent

Question 1

where is the law for lawful chastisement found

Answer 1

-s.58 Children Act 2004

Question 2

what is the defence of legal chastisement

Answer 2

-s.58 Children Act 2004
-reasonable and proportionaate chastisement may be a defence for assault and battery only

Question 3

explain the defence of consent and the 2 cases relating to it

Answer 3

-there is consent to everyday assault and battery
-anything more than assault/battery requires V’s capacity
-Re MB (an adult)(1997); adults have capacity unless they have a disability/ learning difficulties rendering otherwise
-Gillick v West Norfolk and Wisbech; youth may negate capacity depending on age

Question 4

what happened/ is the legal principle in Re MB (an adult)(1997)

Answer 4

-adults have capacity unless they have a disability / learning difficulties rendering otherwise

Question 5

what happened/ is the legal principle in Gillick v West Norfolk and Wisbech

Answer 5

-youth may negate capacity depending on age

Question 6

what are the 7 parts of consent

Answer 6

(i) sex
(ii) sado-masochism
(iii) transmission
(iv) sport
(v) horseplay
(vi) surgery
(vii) body-mod

Question 7

give 3 cases/ legal principles regarding (i) sex

Answer 7

-R v Meachen; if consent to battery develops to more serious injury, there is still consent ( broom in anus)
-UNLESS develops into ABH
-R v Boyea; even if V consents to assault/battery, D can be liable for any ABH which unintentionally results (eg R v Slingsby; D cut V with ring during penetration that got infected)

Question 8

what happened/ is the legal principle in R v Meachen

Answer 8

-if consent to battery develops to more serious injury, there is still consent -broom in anus

Question 9

what happened/ is the legal principle in R v Boyea and R v Slingsby

Answer 9

• R v Boyea; even if V consents to assault/battery, D can be liable for any ABH which unintentionally results
  -eg R v Slingsby; D cut V with ring during penetration that got infected

Question 10

give 3 cases/legal principles relating to (ii) sado-masochism

Answer 10

-R v Brown; homo torture, 2 AIDs deaths charged ss.47 and 20 as consent was no defence
-R v Wilson; branded initials on butt ruled equivalent to tattoo, s.47 quashed consent respected
-Emmett(1999); R v Brown applied, s.47 conv for setting tits on fire

Question 11

what happened/ is the legal principle in R v Brown

Answer 11

-homo torture, 2 AIDs deaths charged ss.47 and 20 as consent was no defence

Question 12

what happened/ is the legal principle in R v Wilson

Answer 12

-branded initials on butt ruled equivalent to tattoo, s.47 quashed consent respected

Question 13

what happened/ is the legal principle in Emmett (1999)

Answer 13

-R v Brown applied, s.47 conv for setting tits on fire

Question 14

give 4 cases explaining (iii) transmission of disease

Answer 14

-R v Dica and R v Konzani; transmission where D does not have actual knowledge of it is s.20 (with intent= rare but s.18 (Rowe))
-Judge LJ in Konzani says social interactions can produce informed consent eg finding out from 3rd party eg doctor, nurse
-R v Adaye; D warned by doctor to test for HIV but D didnt, V infected and D pleaded guilty as it was highly likely despite no actual knowledge

Question 15

what happened/ is the legal principle in R v Dica and R v Konzani

Answer 15

-R v Dica and R v Konzani; transmission where D does not have actual knowledge of it is s.20
-Judge LJ in Konzani says social interactions can produce informed consent eg finding out from 3rd party eg doctor, nurse

Question 16

what happened/ is the legal principle in R v Adaye

Answer 16

• D warned by doctor to test for HIV but D didnt, V infected and D pleaded guilty as it was highly likely despite no actual knowledge

Question 17

what happened/ is the legal principle in Rowe

Answer 17

• transmission with intent= rare but s.18

Question 18

give 2 cases/ legal principles regarding (iv) sport

Answer 18

-generally V consents to whatever rules permit eg boxing consents to GBH unless D intentionally inflicts harm beyond what rules allow
-R v Bradshaw;V died after football tackle, D acquitted as no malicious intention
-R v Barnes; CA held all relevant circumstances considered eg type of sport, level played, nature of act, D’s mind

Question 19

what happened/ is the legal principle in R v Bradshaw

Answer 19

-V died after football tackle, D acquitted as no malicious intention

Question 20

what happened/ is the legal principle behind R v Barnes

Answer 20

CA held all relevant circumstances considered eg type of sport, level played, nature of act, D’s mind

Question 21

give 4 cases and legal principles relating to (v) horseplay

Answer 21

-consent between children to rough play may negate recklessness if there is no intent to injure
-Jones (1987); Ds threw D in air and didnt catch him, conv quashed bc consent to horseplay
-R v Aitken; RAF officers celebrated by setting ppl in fire resistent clothes on fire, 2 were uninjured but 3rd time had serious burns, conv quashed
-R v A(2005);D dropped struggling non swimmer V into river, drowned, no horseplay conv manslaughter

Question 22

what happened/ is the legal principle in Jones (1987)

Answer 22

-Ds threw D in air and didnt catch him, conv quashed bc consent to horseplay

Question 23

what happened/ is the legal principle in R v Aitken

Answer 23

RAF officers celebrated by setting ppl in fire resistent clothes on fire, 2 were uninjured but 3rd time had serious burns, conv quashed

Question 24

what happened/ is the legal principle in R v A (2005)

Answer 24

-D dropped struggling non swimmer V into river, drowned, no horseplay conv manslaughter

Question 25

give 2 cases /legal principles relating to (vi) surgery

Answer 25

-Corbett v Corbett; consent to sex change, extends principle to cosmetic surgery and organ transplant
-St George’s Healthcare; if sane adult refuses consent to treatment, failure to respect that results in criminal liability for offence even if surgery is life preserving

Question 26

what happened/is the legal principle in Corbett v Corbett

Answer 26

consent to sex change, extends principle to cosmetic surgery and organ transplant

Question 27

what happened/is the legal principle in St George’s Healthcare

Answer 27

• if sane adult refuses consent to treatment, failure to respect that results in criminal liability for offence even if surgery is life preserving

Question 28

give 3 cases/ legal principles relating to (vii) body mods

Answer 28

-haircuts are legal unless no consent eg DPP v Smith
-piercings and tattoos are assumed to be lawful (Wilson, bum branding)
-R v BM; tattooist removed ear/ nipple for body mod convicted of s.18 as consent was legally inoperative for that type of body mod (CA held it was akin to illegal surgery)

Question 29

what happened/is the legal principle in DPP v Smith

Answer 29

-haircuts are legal unless no consent
-D cut ex girlfiends hair

Question 30

what happened/is the legal principle in Wilson

Answer 30

-piercings and tattoos are assumed to be lawful
-bum branded with initials

Question 31

what happened/is the legal principle in R v BM

Answer 31

-tattooist removed ear/ nipple for body mod
-convicted of s.18 as consent was legally inoperative for that type of body mod
-CA held it was akin to illegal surgery