Consent

• What is consent?

  Where the V agrees to suffer an injury. It isn’t actually a defence as with consent, there is no offence. This consent must not be given under duress and the must have the capacity to make the decision. The V must be informed to what they are consenting to
• What cases can be used for real consent?

  R v Olugboja: The V was subjected to the fear as her friend was raped so V also consented to sex out of fear. It was found where the V consents due to fear or duress there is no real consent

  R v Golding: D contracted genital herpes and entered a sexual relationship with the V and didn’t tell her. V contracted the herpes and the D was charged with S.20 OAPA. Held the V cannot consent if they are not fully informed 

  R v Tabassum: D had deceived women to allow him to measure their breast for a breast cancer survey where the D induced the women to allow him to demonstrate how to carry out a self exam. D was getting sexual gratification form this yet argued that the women had consented. The D was convicted of sexual offences as the consent wasn’t real as the women weren’t fully informed
• What is implied consent?

  These are situations in which the courts imply consent to minor touching which would otherwise be battery. So consent does not need to be given expressly. These are the ‘jostlings of every day life’ which were defined in Wilson v Pringle.

  Implied consent is given contact sports but if the contact goes beyond the rules of the game then the implied consent doesn’t apply
• What case can be used for implied consent?

  R v Barnes: D inflicted a serious leg injury that was not permitted within the rules as the D made a hard but fair sliding kick. V didn’t give implied consent. Courts held that implied consent exists where the situation is within what can be reasonable
• What case can be used for consent to minor injuries?

  Attorney General’s Reference (No.6 1980): 2 men had an argument and agreed to settle it with a fight in the street, one was injured and the other was charged with S.47 ABH. It clarified that consent cannot be a defence to ABH. Also, the act was in public so not permissible in the public’s interest
• What is consent to medical procedure?

  Consent by mentally capable adults must be granted for surgical procedures and if someone refuses treatment this must be followed otherwise it would be a criminal act. If a patient is unconscious, medical staff must try to obtain consent from relatives but if this isn’t possible the medics must act quickly in the interests of the patient so an operation can be performed without consent
• What case can be used for consent to medical procedures?

  R v BM: D was a tattooist and a body piercer who also provided body modifications. He had no formal qualifications but no qualifications for body mods were required or available. He removed an ear, a nipple and split a tongue in half. He was charged with 3 counts of S.18 GBH. It was held these activities could only be performed legally by medical professionals for medical purposes, not for personality 
• What cases can be used for the 'rough sex' defence?


  R v Donovan: D caned his girlfriend for sexual gratification and caused bruising so was convicted of assault. D appealed as the V consented and the conviction was quashed

  R v Slingsby: D and the V taken part in sexual activity in which the D’s signet ring caused cuts to vagina which then led to blood poisoning. D was charged with UAM and as the V consented to the act there was no intent to cause harm.

  R v Brown: Ds were men engaging in BDSM. The injuries suffered were consented to and desired for sexual gratification. The House of Lords held that consent cannot be a defence of harm above ABH

  R v Wilson: D branded his wife with a knife with consent and was charged with ABH when it got infected. The charges were later dropped as similar to a tattoo
• What is Airesdale NHS Trust v Bland?

  Bland was injured in the Hillsborough Disaster and was left in a constant vegetative state and he was in the state for 2 years with no improvement. Doctors were granted permission to remove the tubes feeding him but was appealed by Bland’s solicitor. It was held that the doctor’s have a duty of act in the patients best interests but doesn’t require them to prolong their lives. It is not lawful to accelerate his death but was lawful to withhold life extending treatment
• What is Pretty v DPP?

  Diane Pretty had motor neurone disease and was become more incapable to movement and would eventually suffocate to death. She wanted her husband to assist in her suicide so she could have dignity in death. The House of Lords refused the declaration and her husband’s act would be criminal under the Suicide Act 1961
• What is Nicklinson v Ministry of Justice?

  Tony Nicklinson suffered a stroke and was paralysed from the neck down he wanted to end his life but couldn’t without help. He applied for a declaration that made the courts say it could be legal for a doctor to assist and declare the current law is incompatible with Art.8 of the ECHR. The Supreme Court didn’t rule that the law was incompatible and also was denied request to be assisted in his death