Consent

Consent

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Intro to Consent

  • Consent of the victim may operate to prevent the defendant from incurring liability for what would otherwise be an offence.
  • No liability is incurring if a person inflicts minor harm with the consent of the victim.
  • Consent operates as a defence because the courts recognise that individuals have autonomy over their own lives.
  • There are limits as to what a person may consent to, while consent may be available as a defence to non-fatal and sexual offences it isnt available for murder or manslaughter, as no one can consent to their death at the hands of another.

CASE: Pretty v UK (2002)

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consent elements.

CONSENT MUST BE VALID

  • The victims consent to the harm will only be valid if the victim understands the nature of the act and knows exactly what he or she is consenting to.
  • The victim must have the capacity to consent.
  • Children and those with mental illnesses cant give vaild consent.
  • Following Gillick v West Norfolk and Wisbech AHA (1986) parents can give consent on behalf of their child under the child understands what is going on. 'Gillick competence'. CASE:Burrell v Harmer (1967)

CONSENT MUST BE INFORMED

  • Such as having sexual contact with someone if you know that you have HIV and not telling them.

CASE: R v Dica (2004)

 

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Consent elements

CONSENT BY FRAUD

  • If the defendant has obtained the victims consent by fraudulent means, this will not always render the consent invalid.

 

  • Fraud will only invalidate consent if the victim is decieved as to the identity of the defendant or the nature and quality of their acts.

CASE: R v Richardson(1998), R v Tabassum(2000).

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Limitations of consent.

  • A victim may cosent to assult or battery.
  • In Collins and Wilcock (1984) it was stated that people are also taken to consent impliedly to the 'physical contacts of ordinary people'.

EXPECTATIONS

  • Certain activities mean the victim will sustain injury beyond assult or battery.
  • The defendant may still be able to rely on consent, but provided that the activity is deemed to fall into a category of recognised exceptions.
  • These are surgery, tattooing, piercing, sports, horseplay or sexual acts.

Surgery

  • These require that a wound be inflicted in order to facillitate an operation, the patient can consent to this level of injury as the surgery is for their benefit.

 

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Limitations of consent.

Tattooing or Piercing

  • Adults can consent to tattoos or piercings, this extends to branding.

Sport

  • As sports are socially beneficial, participants are able to consent to injuries sustained during the course of a game.

CASE: R v Bilinghurst, R v Barnes (2004)

Horseplay

  • The court accept consent as a defence even to serious injury sustained through horseplay. This is is in an area in which the courts do not want to see criminal prosecution.

CASE: R v Jones (1986), R v Aiken (1992)

 

 

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Limitations of consent.

Sexual Acts

  • Any injury through sexual acts is consented to.

CASE: R v Brown and others (1993), R v Wilson (1996), R v Slingsby (1995).

CONSENT EVALUATION AND REFORM

  • Irrational distinctions
  • The law should not determine limits of personal autonomy.
  • Euthanasia
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