WEEK 7

Question 1

What philosophical views on consent are discussed in relation to criminal law?

Answer 1

Personal autonomy, freedom to choose how to live, and the idea that criminal law should only stop conduct that harms others.

Question 2

Is consent considered an offence element or a defence?

Answer 2

There is uncertainty whether consent is a defence to non-fatal offences against the person (NFOAP) or if non-consent is part of the offence definition.

Question 3

What is the evidential purpose of distinguishing between consent as a defence and non-consent as part of the offence definition?

Answer 3

It determines whether the prosecution must prove lack of consent or if the defence must raise consent.

Question 4

What are the three elements that must be fulfilled for consent to be a defence?

Answer 4

• Expressed or implied consent by the victim (V)
• Effective consent
• The offence must be one to which the law recognizes consent as a defence or an exception.

Question 5

What constitutes V’s consent?

Answer 5

Consent can be expressed (explicit agreement) or implied (assumed in everyday interactions).

Question 6

What limits exist on implied consent?

Answer 6

Contact must be within realms of everyday activity.

Question 7

What makes consent ineffective?

Answer 7

• V lacked capacity to consent
• V lacked knowledge
• Consent was obtained by fraud
• Consent was obtained through duress.

Question 8

In what case was it determined that minors cannot consent to tattooing?

Answer 8

Burrell v Harmer: Minors were found not capable of understanding the nature of the act.

Question 9

What was the ruling in Konzani regarding consent and knowledge?

Answer 9

V cannot consent to something they are ignorant of; lack of knowledge about risks (e.g., HIV) means no valid consent.

Question 10

What does the CPS charging standards indicate about offences against the person?

Answer 10

It outlines which offences (e.g., s.18, s.20, s.47) consent may be recognized as a defence.

Question 11

What was the outcome of Attorney General’s Reference (no. 6 of 1980)?

Answer 11

Consent of the victim was not a defence to a charge of s. 47 ABH because it is not in the public interest.

Question 12

What did the House of Lords decide in the Brown case regarding consensual sado-masochistic acts?

Answer 12

The majority held that such acts did not constitute a good reason for consent to be a defence to charges of ABH or wounding.

Question 13

What was Lord Templeman’s view on society’s protection against violence?

Answer 13

Society is entitled and bound to protect itself against a cult of violence.

Question 14

What is the significance of the dissenting opinion in the Brown case?

Answer 14

Lord Mustill argued that questions of sexual morality are private matters and not for criminal law to judge.

Question 15

What was held in Laskey v UK regarding the prosecution of consensual acts?

Answer 15

The prosecution interfered with the right to privacy but was deemed necessary for protecting public health.

Question 16

What was the outcome of R v Wilson regarding consent in private acts?

Answer 16

The CA quashed the conviction, ruling that consensual acts akin to tattooing did not constitute an offence.

Question 17

What was the court’s stance in R v BM on body modification and consent?

Answer 17

Consent could not provide a defence in cases causing ABH, affirming the ruling in Brown.

Question 18

What exceptions exist where consent is recognized as a defence?

Answer 18

• Surgery
• Body modification (e.g., tattoos)
• Religious rituals
• Regulated sports.

Question 19

What is the distinction between legitimate and illegitimate foul play in sports?

Answer 19

• Legitimate foul play: Implied consent exists through participation.
• Illegitimate foul play: No consent is recognized.

Question 20

What is the ruling on horseplay and consent?

Answer 20

Consent to rough play among children is recognized as a defence to assault charges.

Question 21

What is horseplay?

Answer 21

General undisciplined play between children

Not recognizing horseplay would criminalize thousands of acts in playgrounds.

Question 22

What case established that consent to rough and undisciplined play is a defense to assault?

Answer 22

Jones [1986] 83 Cr APP R 375

Consent is a defense where there is no intention to cause injury.

Question 23

In the absence of consent, what can provide a defense for a defendant in cases of horseplay?

Answer 23

Genuine belief that consent was present

Even if the belief is not reasonably held, it is still a valid defense.

Question 24

What is the significance of the case A [2005] All ER 38 regarding belief in consent?

Answer 24

The belief must be genuinely held, regardless of whether it is reasonable

This emphasizes the defendant’s state of mind.

Question 25

What are the legal implications of STI transmission in consensual sexual intercourse?

Answer 25

V can consent to known risk of STI transmissions ## Footnote Dica [2004] QB 1257 (CA) and Konzani [2005] EWCA Crim 706 (CA) establish this.

Question 26

What is the condition under which the risk of STI infection is permissible?

Answer 26

V must be fully informed of the risk ## Footnote This applies to consensual sexual intercourse.

Question 27

What does the lack of an exception for STI transmission imply for policing?

Answer 27

It would lead to impracticality of enforcement and invasion of private life ## Footnote Referenced in Dica.

Question 28

What can provide a defense if D makes a mistake regarding V's consent?

Answer 28

Honest belief that V gave valid and effective consent ## Footnote D's mistake does not need to be based on reasonable grounds.

Question 29

What is the focus when considering a defense based on belief in consent?

Answer 29

D's state of mind regarding V's consent ## Footnote The actual consent of V is not the primary concern.

Question 30

Is the defense of belief in consent commonly pursued in practice?

Answer 30

No, it is rarely pursued ## Footnote This indicates a potential gap in legal defenses.