general defences: consent

Question 1

what is consent?

Answer 1

occurs when a person provides implied or expressed permission to another to carry out a particular type of conduct

Question 2

explain: real consent

Answer 2

• consent must be real
• a person must know the nature of the act and the quality of the act to which they are consenting (Tabassum)
• consent granted due to fear is not real consent (Olugboja)
• fraudulent conduct does void consent, as long as the person knows the nature and quality of the act (Linekar)

Question 3

explain: informed consent

Answer 3

a person must be made aware of risks associated with an activity before they agree to it, otherwise their consent is unlawful, as they do not have informed consent (Dica)

Question 4

explain: expressed and implied consent

Answer 4

• expressed consent: when another directly communicates their positive and explicit consent to a particular type of conduct either orally or in writing
• implied consent: when the law grants permission to particular types of conduct, applies to everyday jostling and sporting injuries that occur whilst rules of the game are being upheld (Barnes)

Question 5

explain: consent to minor injuries

Answer 5

• a person cannot consent to harm greater than assault or battery unless it is one of the public policy exceptions (Attorney General Reference (No.6 of 1980)
• Attorney General Reference (No.6 of 1980) provides that consent is not permitted for those who wish to settle a dispute through fighting, as it is not in the public interest

Question 6

what are the public policy exceptions?

Answer 6

sport
reasonable surgical interference
horseplay
body adornment
extreme forms of body adornment
lawful chastisement of children

Question 7

public policy exception: sport

Answer 7

• lawful consent applies to sporting activities where injuries occur whilst the rules of the game are being applied (Barnes)
• but will not apply when the harm is caused when the D is acting outside the rules of the game (Billinghurst)
• consent will also not apply if the D deliberately and unnecessarily sets out to cause harm to a sporting opponent during a game (Johnson)

Question 8

public policy exception: reasonable surgical interference

Answer 8

• consent to medical treatment and surgery is lawful, if consent is not obtained from the patient as they lack the mental capacity to consent, the medical treatment provided will still be lawful as long as the medical staff are acting in the patient’s best interest (F v West Berkshire HA)
• as long as a person has a mental capacity they can refuse medical/surgical treatment (Blaue)
• a person below the age of 18 can consent to medical treatment if they demonstrate ‘‘sufficient understanding and intelligence to fully understand what is proposed’’, which became known as Gillick Competency

Question 9

public policy exception: horseplay

Answer 9

• agreeing to rough and undisciplined play is lawful consent, as long as the D can demonstrate they held an honest belief that the V consented to it (Jones)
• also applies where the D held a genuine belief the V was consenting to horseplay even though they were mistaken (Altken)
• also applies where an intoxicated D would not have realised the risk of harm if sober (Richardson and Irwin)

Question 10

public policy exception: body adornement

Answer 10

• consent is unlawful if the V is below the age of consent (Burrell and Harmer)
• the activity consented between husband and wife (Wilson) is lawful consent
• not lawful between same-sex relationships when the harm is due to sadomasochistic activities that are not in the public interest (Brown)

Question 11

public policy exception: extreme forms of body adornment

Answer 11

• consent to extreme forms of body adornment where the D has no medical training to carry out such procedure is unlawful (R v BM)

Question 12

public policy exception: lawful chastisement of children

Answer 12

• reasonable and lawful chastisement of children is lawful, as long as it is ‘‘reasonable and proportionate in circumstances, and involves no cruelty’’
• if harm greater than common assault is caused, the defence is unavailable (S58 Children Act 2004)

Question 13

explain: consent and fraud

Answer 13

if consent is obtained due to fraudulent misinterpretation, the consent will be invalid (Dica)

Question 14

explain: consent to homicide

Answer 14

a person cannot consent to another to kill them (Pretty v DPP)

Question 15

explain: drugs

Answer 15

consent granted to the administering of an unlawful drug will not be lawful consent (Cato)