Consent

• Interference with peoples free choice- Criticism

  Why should the law interfere with peoples free choice saying they cant consent to injury they chose to allow (R v Brown)
• However- Interfering with peoples free choice

  This could lead to serious injustice, where would the line be drawn?

  • Could people consent to serious harm and death?
  • May lead to victim intimidation, pressure and lack of real consent
  • Morally and socially unacceptable
• R v Brown/ R v Wilson- Criticism

  Why should the D's in R v Brown be found guilty when the D in R v Wilson was not guilty even though the injuries committed were similar

  In fact, the victims in Brown didn't need treatment, but those in Wilson did
• However- R v Brown/ R v Wilson

  • Wilson came under the exception for tattooing
  • Morality- allowed private moments between a man and wife compared to the less morally acceptable going on between 5 men
  • Harm in Brown more serious and more socially unacceptable and couldn't be categorised under existing exceptions
• Horseplay- Criticism

  Even when rough play has resulted in serious injury- R v Jones- the courts have ruled that consent can be a defence.

  This will even apply when V doesn't actually consent but D mistakenly believed he did.

  How can this be the case but R v Brown?
• However- Horseplay 


  • D may make an honest mistake over allowance of harm (R v Aitken)
  • Horseplay has no actual rules and is hard to define
  • Without the defence of horseplay- rough play would be too risky and society would be at too much to blame for over-protectiveness
• Sport- Criticism 


  The playing of sport should be fun and beneficial, the law shouldn't allow people to be injured and then give the person who injured them the defence of consent because the injured person was playing a game.
• However- sport 


  Must be balance, must be within the rules otherwise sport would be unplayable, too risky and even banned. Outside the rules of the game it is still unlawful so the protection is there and sport is very well defined with rules (R v Lloyd)
• Euthanasia- Criticism


  A person cannot consent to their own death- So if a terminally person wishes to die and receives help from someone, they do not have the defence of consent and will be guilty of murder (Pretty 2001)
• However- Euthanasia 


  • Allowing the defence of consent may be morally wrong, consent is only normally allowed for more minor matters
  • Difficult to prove V consented if V is dead, also difficult to know it was real
  • The DPP have issued guidelines on prosecutions in cases of assisted suicide which may mean that no prosecution takes place where true consent and compassion exists
• Reforms 


  DPP guidelines on assisted suicide- may allow in cases of true consent and compassion