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Explain how and why courts have restricted the availability of the defence of consent to
non-fatal offences against the person.
Consent is to allow the application of force and may be a defence to battery and other offences
against the person. Consent is not strictly a defence as when the victim consents there is no offence
because the force applied is not unlawful. This means that part of the actus reus is missing so the
effect of consent means that the defendant is not guilty and it is, therefore, a complete defence. The
defence of consent has been developed through case law which covers a variety of situations.
There are many uncontentious cases where consent is allowed as a defence. For example, a
surgeon whose patient has explicitly consented to an operation will not be guilty of any non-fatal
offence against the person, even though grievous bodily harm is inflicted. This is to protect surgeons,
as well as others in similar professions such as dentists, from being prosecuted for doing their job.
However, doctors and those in similar professions do have a duty of care so to protect patients,
and any consent given must be genuine and informed.
Implied consent is consent which is not expressly granted by a person, but rather inferred
from a person's actions and the facts and circumstances of a particular situation. Implied consent can
be used for touchings, which would otherwise be battery, in everyday situations. In Wilson v Pringle
(1987) it was held that the ordinary "jostlings" of everyday life do not constitute the actus reus of
battery. It is inevitable that, when in a large crowd or in public, you will be touched or have some
force applied to you.
This also applies to contact sports. When a person agrees to take in a sport, such as rugby or
football, he is also agreeing to the contact which is part of this sport. However, if the contact goes
beyond what is allowed in the game it is possible for an offence to be committed. In Barnes (2004),
the Court of Appeal said that where an injury is caused during a match then criminal prosecution
should only be reserved for situations where the conduct was serious enough to be categorised as
criminal. It must be stressed that a foul is not necessarily a crime as it must be sufficiently serious. It is
important that there is a defence of consent for regulated and properly conducted sports because if
there wasn't then contact sports would be illegal. For example, boxing is a sport where there is
intention to hurt the opposition but if there was no defence of consent and it was made illegal then
there would be a lot more unregulated fights. This would lead to more injuries and matches without
first aiders. The defence of consent is a compromise to allow boxing, and other contact sports, to
occur without there being legal implication as it is the lesser of two evils.
The consent given must be true consent. In Tabassum (2000) the victims agreed to let the
defendant measure their breasts but were under the impression that he had medical qualifications.
The Court of Appeal approved the trial judge's direction when he said "consent in such cases does
not exist at all", therefore even when consent is given, it must be for the act performed. This concept
also applied to consent because of fear; the fact that a defendant submits to the defendant's
conduct through fear does not mean the consent is real, as shown in Olugboja (1982).
In Attorney-General's Reference (No 6 of 1980) (1981) it was decided that consent is not a
defence to a s47 offence, unless the offence is one of the exceptions recognised by the court, such
as surgery and properly conducted sport. Consent may be allowed in other cases not explicitly
stated; it depends whether it is in the public's interest or not. For example, in Brown (1993) the
House of Lords held that sado-masochistic acts done by homosexuals, even though all of the
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Templeman said, "society is entitled and bound to protect itself against a cult of violence". In one
respect you could argue that this decision was in order to protect the public, but the facts of the case
all participants were consenting may suggest that it was a decision based on homophobia. This
argument can be seen through the case of Wilson (1996) where the Court of Appeal decided that a
husband branding his own wife is not an unlawful act.…read more
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NB. Other areas where consent is allowed but not regarding non-fatal offences against the person:
There are specific problems for offences under the Sexual Offences Act 2003 as the defence of
consent is not always available. One such offence is s5 of the Act which covers the offence of rape of
a child under 13. For the purposes of this offence, a girl who is under 13 is presumed never to be
able to consent to sexual intercourse.…read more