Consent
Consent is always a defence to common assault or battery
because there is injury caused. If injury is caused which then consent can only
be a defence if it comes under one of the activities that the law will consent
to.
There are two questions we ask:
1.
Was the consent genuine in terms of capacity and nature?
2.
Was the activity something the law will allow you to consent to?
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Genuine (real) consent?
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R v Tabassum
– Consent to the operation was allowed but not touching V’s boobs. There must
be a true consent where the defendant is consenting exactly to what is being
carried out and the consequences. V cannot consent to having a tattoo done by
an unclean pen if they have consented to a clean one.
R v Olugboja – if the victim
submits to the defendants conduct through fear then this does not prove the
consent is real.
R v Richardson
– You can consent to something being done if D has not misrepresented their
identity or purpose.
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Capacity?
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Gillick v
West Norfolk Health Authority
Scarman stated that consent is only true if the defendant has
“a sufficient understanding and
intelligence to enable him or her to understand fully what is being
proposed”
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Was the act something the law
would allow you to consent to?
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Disease transmission
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R v Dica
overruled Clarence stating that the victim had to consent to the risk of
being infected by the disease, for D to be able to rely on the defence of
consent.
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Implied consent
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Generally consent to minor touching e.g. everyday jostling’s cannot
constitute a battery, Wilson
v Pringle. This also applies to contact sports where a person
agrees to the contact which is part of that sport. However if the contact
goes beyond what is allowed within the rules then it is possible for an
offence to be committed, e.g. rugby player consents to being tackled not
having his head stamped by an opposition player.
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Minor injury
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Attorney general reference no 6 held that consent to s47 under
the OAPA cannot be consented to (usually street fights etc) since
“it is
not in the public interest that people should cause or try to cause each
other bodily harm for no good reason”
But the sado masochism
experienced by brown where none needed medical attention could not be
consented to since SM’s have no way of fortelling the degree of harm that
could come from their encounters – Templeman.
So
consent is not a defence to s47 offences.
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Public policy exceptions – contact
sports
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Public policy exceptions where consent can be a defence to bodily
harm include mutual manly contests and rough and undisciplined sport or play.
This applies to sports like rugby or judo, however the defendant may not be
able to rely on consent if:
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The contact goes beyond what is allowed within
the rules then it is possible for an offence to be committed.
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The breach of rules Is a serious one since Barnes stated that
where an injury is caused during a match then a criminal prosecution should
be reserved to situations where the
conduct was sufficiently grave to be properly categorised as criminal.
(This was not the case in Barnes since D suffered a leg injury in a
football match)
Most organised sports generally have their own disciplinary
procedures for enforcing their particular rules and standards of conduct. So
contact sports where bodily injury is commonplace, D can plead.
D can’t rely on consent if:
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Intended injury
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For reckless,
after play in a moment of excitement and anger
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Off the ball injuries
If play is within the rules of the game and does not go beyond its
likely D can use the defence since what he has done isn’t criminal.
Things to consider; nature of the act, degree of force, extent of the
risk of injury, D’s state of mind.
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Body adornment
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Tattooing is accepted as body adornment, it is accepted that people
can consent to it, R v Wilson - D had
no aggressive intent.
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Horseplay
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Can consent to rough and undisciplined horseplay since they don’t
usually intend to cause injury, R v Jones.
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Mistaken belief?
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Where D genuinely but mistakenly believes that V is consent, then
there is a defence to an assault, R v Aitken (set fire drunk to a man)
Can even be a drunken mistake that the victim was consenting to
horseplay for a charger under s20, R v Richardson and Irwin.
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Euthanasia
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You cannot consent to someone actively ending your life, but an
informed adult can consent to life-saving treatment being withheld, Pretty
v UK
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