Consent

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  • Created on: 21-04-15 19:25
What is the general rule of consent?
There is no liability if a person inflicts minor harm with the consent of V.
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Where should the line be drawn for consent?
[A G's reference No 6 of 1980]
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[A G's reference No 6 of 1980]
There was a street fight to settle differences. There was no consent based on public policy.
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Capacity to consent?
A question of competence, intelligence and understanding [Gillick v Wisbech and West Norfolk]
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[Gillick v Wisbeck]
A girl under 16 went to a doctor and was put on the pill. Mrs Gallic challenged this and argued that she should have been asked for consent. HLDs ruled that age is irrelevant, maturity was more important.
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What must consent be?
Valid. The fact that V apparently consents does not mean the law will treat the consent as valid. [Burrel v Hamer]
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[Burrell v Harmer]
2 boys aged 12 and 13 consented to having a tattoo. They had a reaction and the tattooist was convicted of s47 ABH. Court held that what the boys expected was the tattoos to wash off, so there was no consent as they did not understand the nature.
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Ways consent isn't valid? (6 ways)
Decieved as to nature and identity, nature and quality, identity of person, fraud as to quality, consent must be informed.
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Consent must be informed, consent induced by fraud is no defence. Case?
[Clarence]
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[Clarence]
D had sex with his wife and gave her an STD. It was deemed that there was no defence as wife consented. However this was in 1888. New case is [Dica].
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Deceived as to nature and identity. Case?
[Clarence]
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Decieved as to nature and quality of the act. Case?
[Bolduc and Bird]
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Significant points in [Clarence]
Sexual intercourse amongst a married couple was lawful so there was no unlawful violence under s20. She did not find out she had genera for a period of time thus if there was violence it wasn't immediate. Husband did not deceive as to nature of act.
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[Bolduc and Bird]
A doctor told V that a third person in a room was a medical student. Later is was found that the third person was not a doctor. However court held that there was no assault as they only focused on nature and identity of the act. Didn't focus on ident
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Decieved as to identity of person. Case?
[Richardson]
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[Tabbasson]
D felt womens breasts saying he was making a medical database. Women consented believing D was medically qualified. D committed an offence as women only consented to medical examination.
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[Richardson]
D was a dentist but then had been struck off the register. However she continued to practise dentistry and was convicted of a number of charged of ABH. CA quashed conviction as V's hadn't been defrauded as to her identity, she was infact a dentist.
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Fraud as to quality. Case?
[Tabasson]
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Consent must be informed?
By consenting to sexual intercourse, they do not consent to any disease [Dica] [Konzani] [Golding]
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[Dica]
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 informed consent.
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[Konzani]
D was HIV positive and had unprotected sec with a number of women. They consented to sex but he concealed his HIV. Charged with s20. Conviction was upheld on public policy grounds.
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[Golding]
D charged with s20 after knowingly giving his girlfriend herpes. Conviction upheld as biological GBH.
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There is implied consent in some situations.
[Collins v Wilcock]
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[Collins v Wilcock]
Police asked women to get into a car for questioning but she walked off. Officer grabbed her but she scratched the officers arm. Conviction of assaulting a police officer quashed as held arm unlawfully and women was entitled to get free.
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A person cannot consent to their own death
[Pretty v DPP] [Nicklinson V Ministry of defence]
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[Pretty v DPP]
D sought declaration that her husband not be prosecuted if he assisted her suicide. HL refused as there is no consent to death.
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Cannot consent to more than a battery except for some exceptions.
[Coney] [Leach]
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[Coney]
Prosecutions were brought against various spectators at a bare-knuckle fight for aiding and abetting the unlawful activities.
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Where were the boundaries of consent set out?
[Brown]
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Recognised exceptions to consent?
Sports and games [Barnes] [Millinghurst] [Moloney] [Grey], horseplay [Jones] [Aitken] [Richardson and Irwin], consensual sexual activity [Brown] [Wilson] [Slingsby] [Emmett], tattooing [Wilson], surgery [Bravery v Bravery]
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[Brown]
D convicted of s20 and s47 as part of sadomassochist group where all consented and no medical attention required. No consent based on public policy. "Violence resulting in sexual gratification. If primary focus is violence then it is unlawful.
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[Barnes]
D was convicted of s20 during a football match. The D argued that it was a 'late tackle' (i.e. whistle had blown). His conviction was not upheld as it was not grave enough to be criminal.
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[Billinghurst]
D punched V in an 'off the ball' incident during a rugby match fracturing his jaw. D argued that V had consented to punch due to rugby match. The distinction was made between during and outside a game and the jury convicted.
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[Moloney] [Grey]
Ice hockey players implied consent to bodily contacts, boarding and even fighting during a game. However the position is different when the whistle has blown.
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[Ciccarrelli]
D was a professional ice hockey player. The whistle had blown for offside when D hit V over the head with his stick 3 times. Convicted of s47. Appealed but it was upheld.
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[Jones and Others]
Boys in playground got hold of some kids and threw them in the air. They were badly hurt and the boys thrown in the air did not consent. However were acquitted as if D holds an honest belief that V consents, this negates MR.
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[R v Aitken]
In an initiation ceremony it involved setting fire to someone. Unfortunately, due to intoxication it went wrong and V was burned. Charged with s20. Conviction was quashed as it was just 'what lads do'.
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[Richardson and Irwin]
2 students lifted another over a balcony and dropped him about 12 feet to the ground, causing him serious injuries during horseplay. Not guilty.
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[Boyea]
Inserted hand into V's ****** causing injuries equivalent to s47. Conviction was quashed. Such harm in consenting sexual activity wasn't a crime. To prosecute was not in public interest.
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[Slingsby]
During sexual intercourse, D's ring was caught and she got blood poisoning and died. Not convicted as it was done out of love not violence.
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[R v Wilson]
D branded his initials on partners buttocks with hot knife. She asked him to do so. The doctors reported matter to police and D was charged with s47. On appeal the consent was valid as it was no different to a tattoo.
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[R v Emmett]
A woman agreed to have a plastic bag tied to her head and then lighter fuel being put on breasts and set alight. Partner convicted of s47. Consent was no defence as injury was unlawful and contrary to public interest.
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[Bravery v Bravery]
Where there is a wound, consent must always occur.
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Other cards in this set

Card 2

Front

Where should the line be drawn for consent?

Back

[A G's reference No 6 of 1980]

Card 3

Front

[A G's reference No 6 of 1980]

Back

Preview of the front of card 3

Card 4

Front

Capacity to consent?

Back

Preview of the front of card 4

Card 5

Front

[Gillick v Wisbeck]

Back

Preview of the front of card 5
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