Consent Essay Model Answer

• A potential defence that may be available for D is consent. Consent is when a victim willingly agrees to suffer an injury by the defendant.
• Firstly, the consent must be real, ie the person must not be consenting because they are scared as in the R v Olugboja. The consent must also be informed (R v Dica) and not obtained by fraud (R v Tabbassum). This means that the V must be fully aware of all the circumstances and have all of the information. Next, the type of consent will be looked at as to whether it has been given expressly or if it's implied.
• Also, the V must be of a sound mind (Re F) and not a child who doesn't understand what they are consenting to as in the case of Burrell v Hamer. However, if they are Gillick competent then they can give valid consent.
• Consent is only available in relation to certain offences such as assault and battery. However, according to the case of Brown, once an offence goes beyond battery, a victim cannot consent to it unless it falls within one of the special exceptions to this rule for public policy reasons. It is in the public interest to protect society from a cult of violence and prevent corruption of young people. These exceptions include sporting activities, horseplay and medical treatment. If the offence goes beyond battery and doesn't fit into one of the exceptions then the defence will fail.
• *If battery consider implied consent - Wilson v PRingle 'everyday jostling's of life' *

  * Defence not available to murder, manslaughter, including assisted suicide - Pretty v UK*
• *Apply if in scenario*

  • Rough horseplay - R v Jones, Court said the victim's consent (or the defendants honest belief in that consent) to rough and undisciplined play could provide a defence as long as there was no intention to cause injury. In R v Aitken 1992, the court said that a victim can also give consent to the risk of accidental injury during rough undisciplined play. If the defendant honestly but mistakenly believed that the victim had consented, that would be a defence.
• *Apply if in scenario*

  • Sport - In R v Barnes, the Court of Appeal stated that 'prosecution should only be reserved for situations where the conduct was sufficiently grave to be characterised as criminal.' It set out the following guidelines: intention to cause injury in sport and injury caused due to bad temper will be criminal. 'Off the ball' incidents are likely to be criminal but if the d's actions are within the 'rules of the game' then they are not criminal.
• *Apply if in scenario*

  • Medical treatment - Most surgical treatment can be readily consented to, either expressly by signing consent forms or having forms signed by a parent or guardian on behalf of a child and by implied consent in emergencies.
• *Apply if in scenario*

  Piercing and tattoos - With respect to piercing and tattooing this can be consented to but is regulated by statue such as the Tattooing of Minors Act 1969 which made it an offence to tattoo a person under the age of 18 save for medical reasons. In R v Wilson, the CA held that the branding of the d's wife's buttocks was not an unlawful act as this was a situation of personal adornment like having a tattoo, as well as no aggressive intent.
• Therefore, the D would/would not be able to rely on this defence and he would/would not be guilty of (state offence).