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CONSENT - Coggle Diagram

- - - - consent is not real if it was obtained by:
        
        (1) force or fear
        
        in Olugboja 1982 (a rape case) accused tried to use the fact that V had not struggled as evidence of consent. this was rejected because she was afraid to resist him so the consent wasn't real.
        
        (2) Fraud
        
        if accused is tricked into consent the the consent is not real.
        
        Tabassum (2000) - accused posed as a medic involved in a study of women's breasts. he couldn't use consent as defence to indecent assault because the consent was obtained by fraud
        
        however, in R v Richardson (1998), dentist carried out work on patients after being suspended by the dentist' governing body. patients wouldn't have consented to treatment if they'd know she'd been suspended. however, Court decided the patients had consented to the treatment. there was no fraud related to D's right to practice dentistry (they knew she was a dentist just not that she was suspended)
        
        also consider R v Melin (2019)
        
        (3) Withholding the full facts
        
        if consent is gained by not giving V important info then it isn't real consent.
        
        Dica 2004 - accused transmitted HIV to women during intercourse with them. they'd consented to unprotected sex. consent wasn't real because Dica hadn't told them he had HIV. their consent gave him no defence to his s.20 GBH charge.
        
        Confirmed in Konzani 2005
        
        (4) lack of capacity of the victim
        
        consent given by mentally retarded or young victims may not be real consent
        
        Burrell v Harmer 1967 - tattooist was convicted of ABH because his clients, who were only 12 & 13, were too young to give proper consent.
  - - - the main authority for this is Brown & others 1994 - sadomasochist case
      - exceptions
        
        in Brown, HL said consent could be a defence to statutory assaults causing injury if:
        
        (A) they involved "socially useful activities
        AND
        (B) The courts had previously recognised these activities as exceptions (as listed in Attorney General Reference No.6 1980 and confirmed in Brown)
        
        the previously recognised exceptions
        
        activities where consent may be a defence to ABH and GBH
        
        medical and dental treatment
        
        doctors and dentists may wound us as part of the treatment e.g. an operation, but they obviously have our express or implied consent as a defence
        
        Body enhancement
        
        this includes piercing and tattooing. wilson 1996 accused branded his initials onto his wife's buttocks with her consent. he was able to use the defence partly because the branding was regarded as a kind of tattooing.
  - - - R v Donovan (1934) - D caned 17 year old girl for the purpose of sexual gratification. this caused bruising and D was convicted of indecent assault and a common assault. He appealed on the basis that V consented. D's convictions were quashed
      - -R v Slingsby (1995)
- - - - Wilson v Pringle 1987 - was held that everyday jostling was not a battery. hence if we are pushed or bumped into whilst in a crowded street/lift, the other person would be able to use our implied consent as a defence to what was otherwise be a battery.
        
        there's also implied consent to battery when you play sport.
  - - - **this may be so even if you broke the rules of the game by committing a bad foul
        
        Barnes 2004
    - - Billinghurst 1978
    - - boxing = sport where consent is almost always a defence even to GBH - same may apply to martial arts contests
        
        if bout is unlicensed then consent is no defence Coney 1882
      - consent is no defence to fights outside the ring
        
        if you injure someone in a brawl you cannot use the defence of consent even if the other was willing to fight
        
        A.G. Ref. No.6 1980 - after a quarrel 2 teenagers had agreed to a fight in the street. one received minor injuries. Defence of consent was rejected as a defence to ABH. CoA said that allowing it would encourage violent behaviour
    - - those participating in play fighting or practical jokes are deemed to consent to resulting injuries e.g. teenagers often push or trip each other up in friendly play.
        
        Jones & Others 1986 some schoolboys threw V in the air and then failed to catch him as he fell. it caused serious injury to V.
        
        Aitken & others 1992 new RAF recruit was badly burned when "for a joke" he had his "fire-proof" flying suit set on fire by his colleagues.
        
        in both cases consent was a defence to s.20 GBH (even though the accused belief in the victim's consent was mistaken)
    - - e.g. assistants to knife throwers or circus acts may consent to the risk of injury. the same may also apply to people in TV programmes who assault each other for the entertainment of viewers.
- - - - therefore in UK in cases where people wish to commit suicide are physically incapable of doing so, then anyone who helps them will be guilty of an offence. there have been a number of attempts to challenge this rule including Tony Nicklinson 2014. in this and other cases that have come before the court it has been held that this is an issue for parliament to consider.
        
        as yet Parliament has been unwilling to legislate, despite there being broad public support for their doing so.
        
        **R (on the application of Nicklinson and another) v Ministry of Justice (2014). in 2005 Tony Nicklinson suffered severe stroke & became paralysed from neck down. he described his life following stroke as a 'living nightmare'. he wanted to end his life but was unable to commit suicide without assistance which was an offence under s2 of the Suicide Act 1961. he applied for a declaration that either:
        
        (1) it would be legal for a doctor to assist his suicide; or
        (2) the present legal regime concerning assisted suicide is incompatible with Article 8 of the ECHR. (rights to respect for private and family life).
        
        the cases were appealed to Supreme Court (though Mr Nicklinson refused food & died during the course of the proceeding). Court refused his request for a declaration saying that this issue is a matter for Parliament (not the courts) to legislate on. the request for a declaration of incompatibility was also refused as the court considered that the issue was within the UK's margin of appreciation, and was therefore a question for the UK to decide.
- - - - this was confirmed in Emmett 1999 - in order to increase her sexual pleasure, the accused's gf agreed to have a plastic bag put over her head and her breasts set on fire. blood vessels in her eyes were ruptured and she had minor burns. CoA said her consent was not defence to ABH.