defence of consent - general intro
- used in realtion to non-fatal defences
- In general person can consent to no greater harm than common assault
- But: if public interest category applies e.g. tatooing then person may consent to to harm that fallswithin s47 or s20 OAPA 1861
- can never consent to deliberate serious injury (s18)
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basis for allowing defence?!
- level of harm caused?! > Leach (consent to crucifixtion not valid)
- then why allow boxing where very purpose is to inflict serious injury
- serious injury very common in horseplay - Aitken
- intention of parties > justify contrasting decisions > Brown and Wilson
- (wilson = incedental) , (Brown = intended)
- Protect inncocent groups?! > but then why lawful chastisment of young children?!
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Case of Brown
- H.O.L > deny defence of consent by 3/2 margin to group of homosexual males engaged in sado-maschestic activities > would "breed and glorify" cruelty
- But not to disamiliar from Brown - husband brand initlas on wifes bum - C.O.A - "tattooing"
- similarities: level of harm, carried out in private and with full consent
- Arguably D's of brown denied their basic rights of "respect for private and family life under article 8 of the HRA
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- they decide what it in the "public interest"
- leads to inconsistencies and confusuion!!!!
- left to judges will apply subjectivly > personal and moral considerations = deciding factor!!!
- Brown = homophobic decision?!
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- genuine (informed consent)
- Richardson - consent to dental treatment not allowed although patients did not know that the D had been disqualified from practicing
- Tabussam - defence not allowed women had consented to a breast examination under the false belief that the D was medically qualified
- 2nd decison incompatible with the 1st
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rough and undisciplined horseplay
- vague justicication for the defence
- Jones - perhaps it could be whown tht young boys can fool around
- But in Aitken grown men relying on drunken belief of consent - extent of injuries = bizzare allowed!!!!
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Consultation paper no. 139 - law comission - propo
- horseplay nad sexual activities should not be given specail consideratiion - surgery tattooing, ear piercing, circumcision should still be given it
- remove some of inconsistencies by extending range of situations in which it can be a defence
- if act "likely to cause serious injury" then D should not be able to rely on defnce - may amount to removing it other than in specific cases from s20 charges
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- general involuntary intoxication (i.e unknowingly becoming inxtoxicated complete defence to any crime as long as D could not form the MR)
- Majewski - voluntary intoxication - (knowingly becoming inxoxicated) no defence to crimes of basic intent but may be partial defence of crimes of specific intent (MR only intention) - where D could not form MR
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basic and specific intent
- basic intent defined negativly i.e. any crime not specific intent - sooo... lawyers/academics have to play guessing game as to its usefulness > protracated discussion in court as to which offence - basic/specific
- basic intent anything other than intent, so MR could be be fulfilled wiith something below intention i.e. recklessness therefore perverse to include word recklessness in title where it is actually interpreted to mean the complete opposite i.e. no intent
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- person becomes voluntary inxoxicated > assumption that public would regard their conduct as reckless (under ordinary and everday meaning of the word) - deemed as prrof of mR of offence when it only recquires recklessnesss
- Public policy resaon for this majewski
- But law changed since 1976 - now only judged subjectivly as in G&R
- Recklessness conduct can be equated to reckless state of mind > avoid P having to proce MR. this counters the normal burdern of proof which is that P must prove AR and MR beyond "all reasonable doubt"
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Case of kingston
- despite involuntary inxotication (D not morallly to blame in becoming inxoticated - deprived of defence as still able to form MR)
- confusing judgements seem to suggest drugged intent still intent
- If applied consistently then in the case of Lipman D would be guility of murdering his GF whilst on LSD
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law commission report no 314 - "intoxication and c
- remove terms "basic and specific" intent > replace them with subjective fault element that must always be proven by prosectution (e.g. intention, fraud, dishonesty, knowledge and belief of something)
- Majewski rule is restated > sufficent fault to establish MR of recklessness presumed if D voluntarily intoxicated
- no practical change and preserve public policy status of offence > despite confusing termilogy basis of defence sound one!!!!
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