Consent

Consent - General Not really a defence as it could be argued that there has been no unlawful act 2 issues to consider: What offences can a person consent to? Is the consent genuine?

1. What offences can a person consent to?

Murder - No Consent is not a defence to murder Person cannot consent to being killed and euthanasia is against the law – even where V has consented, law does not permit this Pretty – confirmed this – Pretty suffered from motor neurone disease, paralysed. Wanted husband to be able to assist her suicide without fear of prosecution. Court did not allow this.

Non-Fatal Offences – Usually Only Battery Brown – consenting gay men who performed sado-masochistic acts in private. Question before courts was whether they could consent to these activities. Court confirmed, consent is allowed as a defence to battery, but not to more serious injuries (i.e. S.47, S.20. S.18 OAPA) – not in the public interest for people to harm each other for no good reason. But there are “recognised exceptions” where defence could be available for injuries more serious than battery.

Recognised Exception - Normal Sports Activities Many sports involve physical contact and risk of injury. When event is being properly conducted and supervised within the rules, there is consent Where incident goes beyond the rules and regulations of the sport, there is potential for criminal liability Barnes – V suffered serious leg injury following a tackle during an amateur football match. CA accepted defence of consent and held criminal proceedings should only take place in situations where the conduct was sufficiently serious. Must take into account the following before considering prosecution: Type of sport Level at which it was played Nature of the act Degree of force used Extent of risk of injury State of mind of the person causing the injury Court also noted that in the heat of the moment, excessive force might be used but that is unlikely to be criminal Billinghurst – defence of consent accepted even though injury suffered was serious and D was acting outside the rules of rugby

Recognised Exception - Normal Social Intercourse Think back to exceptions for battery Shaking hands Tapping someone on the shoulder to draw their attention to something Hugging Etc. But, person can withdraw their consent thus making the action potentially criminal

Recognised Exception - Medical Procedures, Dentistry, Piercing, Tattooing, Blood Tests Most surgical procedures expressly consented to by signing consent forms (yourself or parent/guardian), or by implied consent in emergencies. Consent can be refused or withdrawn at any time Giving consent means patient agrees to the harm and any associated risks, therefore medical practitioner cannot be charged with any offence

Recognised Exception – Horseplay Brown – criminal law does not concern itself with horseplay provided it does not go too far Relevant for unregulated sports and games Includes pushing and shoving between friends, arm wrestling etc. Usually not an issue but can be if it gets out of hand or is not consented to – i.e. bullying Jones – group of boys gave another the “bumps” causing serious injury. Held – no offence committed if D’s were not intending to cause harm and genuinely believed the injuries which occurred did so with V’s consent Aitken – Drunken RAF officers soused another officer with white spirit and set fire to him. Court held there was implied consent to “rough and undisciplined horseplay”

Recognised Exception – Lawful Chastisement or Correction Corporal punishment in schools illegal since 1986 Children Act 2004 – smacking by a parent is illegal where is causes bruising or cuts But consent still a defence to common assault

Not a Recognised Exception – Sexual Activities Law is concerned on moral grounds with respect to extreme sexual activities, however consensual, and the transmission of diseases such as AIDS. Brown – D and Vs involved in consensual sado-masochistic homosexual activities that did not result in permanent injury or hospitalisation . But D’s found guilty – not in the public interest that people should cause each other actual bodily harm for no good reason Wilson – man branded his initials on wife’s buttocks and injuries were severe enough to need medical treatment. Defence succeeded – therefore cases are not always consistent

2. Is the Consent Genuine?

Genuine Consent – Age and Mental Capability If V is a child or mentally challenged, consent may not be valid Question of whether V had sufficient understanding and intelligence to give consent Burrell v Harmer – D tattooed 2 boys who were 12 and 13 with their consent. Defence of consent not allowed as boys unable to understand the pain involved Age in itself does not mean there is no consent, but failure to appreciate the nature of the act does

Genuine Consent - Fraud If consent obtained by fraud, not valid Fraud must be as to the nature of the act Tabassum – women consented to a breast examination carried out by D who claimed he was medically qualified when he wasn’t. No consent as women had only consented to being touched purely for medical purposes Dica – D had unprotected sex with Vs knowing he was HIV positive. Vs had consented to sex but as they didn’t know he was HIV positive they had not consented to the risk of infection – lack of knowledge meant consent was not a defence to S.20 OAPA Richardson – defence of consent to dental treatment accepted even though patients did not know D had been disqualified from practice – but this case seems inconsistent with Dica and with Tabassum so perhaps should be disregarded

Need AR and MR for Original Offence First Slingsby – consent only relevant where AR and MR established. D caused internal injuries to partner from the signet ring he was wearing. Neither D or V was aware of the injury or the cause until the wound became septic. D charged with UAM but V’s death was not the result of an unlawful act as there was no MR for the unlawful act so issue of consent irrelevant

Questions on Consent Remember, need AR and MR for the original offence Is it an offence that D can consent to? Fatal offence – no Non-fatal offence – usually no more than battery But “recognised exceptions”: Normal sports activities Normal social intercourse Medical etc. Horseplay Lawful correction Sexual Activities – not normally a recognised exception if more than battery (but inconsistent case law Is the consent genuine? Consider age and mental capability Fraud