consent

• not a defence for physical injury unless it is an exception recognised by the courts 


  balancing individuals against considerations of public policy

  • this has provoked the criticism that by trying to base decisions on public policy it has not been developed in a reasoned and logical way, however some of the exceptions such as properly conducted sport and lawful surgical intervention are logical from common sense and practical point of view
• lack of coherence over reasoning behind allowing or denying d of defence of consent

  (richardson) distinction was artificial - deception as to quality of act or identity of the person should make no difference should not have had a defence

  (leach) decisions based on level of injury caused, inconsistent:

  allowed for boxing, appropriate for horseplay - (jones) victim not actually consenting, but court said mistaken belief as to consent is allowed, despite serious injury being inflicted, horseplay for children not adults - fine line between bullying and what is passed off as horseplay
• distinct between (Wilson) and (brown)

  (Wilson) - carving considered mutilation not body adornment

  (brown) - consenting to injury for sexual gratification=unacceptable, some say homophobic decision yet same injuries in (emmet) with heterosexual partners

  judges overstepped their constitutional role and interfered in right of adults with full mental capacity to do what they like in privacy
• no defence of consent to murder

  terminally ill people must take their own lives, physically incapable - wish denied, anyone who helps - guilty of assisting suicide (pretty)

  law commission consultation paper - suggested extending range of situation in which consent effective and removing some anomalies

  agued d should rely on v's consent to an act intending to cause injury but not intending to cause serious injury

  circumcision, tattooing, ear piercing kept as special case

  suggested adopting rules for boxing

  not available for horseplay or sexual activities