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Evaluate defence of consent (Lack of clear rationale (E.g: If horseplay…
Evaluate defence of consent
Consent allowed for some situations involving injury
If there was no defence, contact sports would be illegal. A-G REF (1981): CoA held generally consent is unavailable for more serious non-fatal offences.
Unless situation is an exception recognised by the courts. List includes 'properly conducted sports' and 'horseplay'.
These exceptions are based on public policy. Social benefit for the injury so in public interest to allow consent.
Lack of clear rationale
E.g: If horseplay causes serious injury, there may be a defence: JONES AND OTHERS.
Goes against principle from A-G REF (1981) regarding no public interest for ABH for no reason.
Argued that horseplay shouldn't be an exception. Law would not offer protection should joke go wrong.
In JONES AND OTHERS, Seemed more like bullying than horseplay but defence accepted.
Difficult to reconcile
BROWN AND OTHERS (BO) v WILSON (W)
In BO, House of Lords held consent wasn't a defence for sadomasochism.
Seems odd that despite medical attention, consent was granted in W and wasn't in BO where no medical attention.
1 Law for homosexuals and another for heterosexuals? Judiciary imposing their morals?
In W, the CoA held that defence was available where a husband branded his wife's buttocks.
No-one can consent to their own death
Law doesn't allow euthanasia for suffering patients incapable of suicide
Anyone who helps could be guilty of assisted suicide: PRETTY v DPP.
Law allows for suicide so terminally ill patients can take their life
Parliament v Judges...which is better?
Parliament should legislate the defence of consent
Judges are better to look case-by-case than Parliament laying down general principles