Unit 2 – Consent & other general defences Flashcards
General rule = It is possible to rly on consent to simple assault or battery.
Is it possible to rely on consent for ABH / GBH?
No.
Consent to bodily harm is allowed in the following situations:
- Properly conducted sport (i.e., within the rules/spirit of the rules) (Barnes)
- Surgery (by a licensed professional, including cosmetic – contrast Body Modification which was a case of extreme body modification – cutting tongue etc.)
- “Dangerous exhibitions”
- Piercing (although, not body modification like tongue cutting)
- Tattooing – also cosmetic branding (Wilson)
- Horseplay (rough playing) (Jones)
Consent to any harm which falls within one of the prescribed categories (above) will be negated by:
1) Fraud as to the nature of the act
2) Fraud as to D’s identity – not that deception as to extent or nature of their qualifications will not negate V’s consent
3) If the consent is given by V without being fully informed of the risks/ consequences
Consent in sadomasochistic sex …
- It is not possible for V to consent to ABH and GBH in the context of sadomasochistic sex (R v Brown; R v Emmet)
- Contrast Wilson, where a husband branded his initials on his wife’s buttocks, consent was a defence.
Consent to transmission of sexual disease ..
Key case: R v Dica – Consent to unprotected sexual intercourse is consenting to the ‘risk’ of infection, as well as other inherent risks such as pregnancy. Consent to risk can be a defence under s 20.
When will D be able to rely on self defence / prevention of crime?
When they use ‘reasonable force’.
Reasonable force test:
1) D used reasonable force (objective)
2) In the circumstances as they believed them to be (subjective)
What is the effect of mistake on self defence as a defence? I.e., used more force than was reasonable due to mistake as to how much force they believed was necessary
Two Factors:
a) The defendant is judged on the facts as they believe them to be (albeit mistakenly)
b) The defendant is judged on the facts as they honestly believed them to be, even if that honestly held belied is unreasonable.
Factors considered: Defendant’s perception of circumstances
For householder cases what is the standard?
May use more than proportionate force provided it is not grossly disproportionate.
What is the effect of intoxication and mistake? (i.e. drunk person mistakenly thinks they need to use more than reasonable force)?
Cannot use self defence.
