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  • Consent
    • what is consent?
      • may be a defence to battery and other offences against the person
      • never a defence to murder or situations where serious injury is caused
      • where other person consents to being touched there is no battery due to no unlawful touching
        • Donovan (1934) - canned girl for sexual gratification causing bruising
          • conviction for common assault and indecent assault quashed as consent given
    • consent must be real
      • Tabassum (2000) - D measured women's breasts saying making medical database
        • women consented thinking D medically qualified or training
        • committed battery - women only consented to medical examination
      • consent cannot be induced by fear
        • Clarence (1888) - D had sex with wife and gave her sexually transmitted disease
          • even though disease unknown to wife, no offence as wife deemed to consent to sex with husband
        • Olugboja (1982) - V already raped by D's companion and had seen D rape another woman so allowed him to have sex with her.
          • D held that this meant real consent
          • CA held that there is a crucial difference between real consent and mere submission
      • Dica (2004) - D infected 2 women with HIV after unprotected sex. D did not tell them he was HIV positive
        • D committed offence as women did not give real consent
        • overruled previous decision in Clarence (1888)
    • consent can be implied for the reality of everyday life
      • Wilson v Pringle (1987) - held that ordinary 'jostling's' of everyday life were not battery
        • no one can complain about the jostling's on the underground
      • can be implied consent for contact sports within the rules of the game
        • Barnes (2004) - made late tackle on player during amateur game leading to serious injury
          • conviction was quashed as not grave enough to be criminal
    • consent can be given for minor injuries, with limits set by public policy
      • AG Reference (NO 6 of 1980) (1981) - two men agreed to fight in street to settle their differences
        • CA held that consent could not be a defence to street fighting as it was not in the public interest
        • now accepted consent not available to s.47 unless...
          • properly conducted games and sports
          • lawful chastisement or correction
          • reasonable surgical interference
          • dangerous exhibitions
          • court added 'etc' so that it may be able to cover new situations in the future
      • limits to consent
        • Brown (1993) - HL held that consent not a defence to sado-masochistic acts done by homosexuals
          • All V's had consented and none needed medical attention
          • no consent based on public policy
        • Wilson (1996) - D branded wife's buttocks with his initials. she needed medical attention
          • no offence as she asked him to do it
          • case not in public - like having tattoo
    • can be an honest mistake as to a belief in consent
      • Jones (1986) - two boys tossed into air by older brother's. suffered broken arms and ruptured spleens
        • conviction quashed by CA
        • held that a genuine mistaken belief in consent to ‘rough and undisciplined horseplay’ could be a defence, even if the belief was unreasonable. 
      • Aitken (1992) - RAF officers poured white spirit over drunk and sleeping friend wearing fire-resistant flying suit who suffered major burns
        • conviction for s.20 quashed as the mistaken belief in the V's consent should have been left to the jury
    • extent of consent
      • Emmett (1999) - D and GF had sex which resulted in hemorrhage to GF's eye and burns on breast
        • CA upheld D's conviction as harm caused more than transient or trivial


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