The defence of consent

  • Created by: 11simmt1
  • Created on: 20-12-17 10:56

Consent is not a defence to murder

A person cannot consent to being killed (murder) and euthanasia is against the law.  

Case- Petty (2002): Woman with motor neurone disease wanted husband to assist her suicide. Principle: Assisted suicide is a criminal offence, denying assisted suicide is not a breach of victim's human right.

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Consent as a defence to non-fatal offences

Consent is allowed in non-fatal offences up to the limit of common assault. ABH and greater cannot be consented to.

Case- Brown 1993: Homosexual men had been performing sado-masochistic acts in private. Principle: You can not consent to ABH or greater (s47, 20 and 18). Considered to be not in the public interest for peple to harm each other for no good reason.

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Exceptions for rule on consent to non-fatal offenc

While you can not normally consent to ABH or greater, there are exceptions where this is allowed.

Normal Sports Activities

Many sports involve physical contact and risk of injury from another. If the event is being poprely conducted and supervised within the rules then there is consent no matter how serious the injury. 

However, if the incident goes beyond rules and regulations of the sport then there is potential criminal liability. 

Normal social intercourse

This covers things such as shaking hands, tapping someone on the shoulder, hugging and so on. A person can withdraw their consent making the action potentially criminal.

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Exceptions for rule on consent to non-fatal offenc

Medical procedures, dentistry, pericing, tattooing and blood tests

Consent can be given to surgical treatment through signing consent forms or signed by parent or guardian for a child, and by implied consent in emergencies. This consent can be refused or withdrawn any time. Tattooing can be consented, but regulated by statute: Tattooing of Minors Act 1969.

Horseplay and sexual activities

Horseplay is allowed providing the actions do not go too far and the defendants were not intending to cause harm. Jones 1986 established this. In Dica 2004 the defendant had unprotected sex with the victim. He was aware he had HIV however the victim was not. They had not consented to the risk of infection.

In Slingsby 1995, the defendant caused internal injuries to a woman from a signet ring she was wearing. At the time neither the defendant nor the victim were aware of the injuries until the wound became a serious medical problem. As no mens rea was formed for this thre was no need to consent to be an issue.

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Is the consent genuine?

If the victim is a child or is mentally challenged, the consent may not be valid. 

Case- Burrel v Harmer 1967: Defendant tattooed two boys who were aged 12 and 13 with their consent. Defence of consent was not allowed as they could not appreciate the nature of the act.

Consent obtained by fraud will not be a valid consent. Fraud must be as to the nature of the act.

Case- Tabassum (2000): Women consented to a breast examination carried out by the defendant in the belief he was medically qualified. Woman consented purely for medical purposes, had not consented for any other purpose.

However, Richardson (1998): is contradictory to this in the sense that dental treatment was accepted a defence of consent even though the patients did not know the defendant was disqualified from practice.

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