Consent as a General Defence
Key issues
Definition and key issues
• A defence established by common law principals based
on the fact that the V has agreed to the criminal
activity being done to them.
• If successful results in an acquittal
• Can be used for any offence.
• As a general principal the courts only allow the defence
for Common Assault.
• All other offences cannot use the defence as a matter
of public policy – criminal law should protect society.
• The courts have identified 6 exceptions to the general
rule, where consent can be allowed as a defence.
Murder and defence of consent
Can use the defence
• In the best interests of the V
to end life, e.g. Bland was in
a persistent vegetative state
• Courts recognise quality of
life.
• To contact sports such as
boxing.
Can’t use the defence
• Pretty – The right to a quality
of life does not extend to a
right to death.
• Art 2 Human Rights Act is
interpreted to protect
vulnerable V’s.
• Coney – Where sports don’t
follow recognised rules and
safeguards then no defence.
So bare knuckle fights or fights
that don’t follow boxing
regulations cannot be
consented to.
Assault and Battery
• Generally allowed defence of consent as minor injuries
only.
• Slightest Touch:
• Consent wouldn’t be allowed when there is the
slightest touch which V _______ ______ to.
• Everyday _________ in the street are impliedly
consented to, Cole v Turner.
• Collins v Wilcock: Said what could not be classed as
impliedly consented to by the prostitute?
•
AG’s Reference (No 6 of 1980) 1981
• Facts: D had an argument and decided to settle this
with a fight outside the pub. D charged with ABH.
• Should the defence of consent be allowed?
•
Lord Lane went on to identify a number of exceptions:
• “Properly conducted games and sports, lawful
chastisement, reasonable surgical interference,
dangerous exhibitions etc” = rough sex as a private
matter.
• Where the violence is in the public interest then
consent as a defence is accepted.
Horseplay and sexual activity
Can consent
• Jones: Rough sport or play with
consent of V was in the public
interest.
• Why?
•
Wilson: Violent acts similar to
those of tattooing and where the
aim is personal adornment and
not to seek thrills from pain and
injury are private matters that
can be consented to?
• What was the private matter in
Wilson?
Can’t consent
• Brown & others: Sado
masochistic sex encouraged
violence in society which
criminal law aims to
discourage.
• One argument against this
view?
•
To be a defence consent must be
genuinely obtained from the V.
• Consent obtained by fraud from the V is not a defence.
• Tabassum: A man impersonated a doctor and told patients that by
fondling their breasts it would aid medical research. Did the V
consent?
•
The D’s cant give genuine consent unless they understand what act
they are consenting to involves, such as level of pain.
• Burrell v Hamer: Two 15 year old boys consented to having tattoos
and the tattoo artist was prosecuted.
• What was the offence?
• Could the tattoo artist use the defence of consent?
•
Mistaken belief as to consent
• Where the D mistakenly believes the V has
given consent the jury are asked to consider
the issue of consent from the D’s mistaken
point of view.
• This is so long as the jury believe the D’s
mistake is genuine, even if the belief as to
consent is unreasonable.
Encouraged by their friends whilst they were all being rowdy,
Henry and Jack took part in a ‘boxing match.’ in which each had
one glove and both wore blindfolds. During the match, Henry
had struck Jack twice in the face, leaving him with red marks and
a small swelling under his eye. Jack then took out a knife which
he had hidden in his pocket. Before anyone could intervene, Jack
lashed out in Henry’s direction but missed him and, instead,
inflicted a deep cut on the arm of Karim, one of the friends who
was watching. The cut required a large number of stitches.
Consider the liability of Henry for the injuries to Jack, and the
liability of Jack for the injuries to Karim. (25 marks)
Henry & Jack plan for defence of consent
1. Define consent – Only allowed for Common assault – Cole v Turner – as Jack agreed to
the play fight implied from wearing blind fold and glove then can consent to being struck
twice, lawful touch.
2. Swelling makes ABH by Henry– AG Ref (no6 1980) – says Jack cannot consent as general
rule to this level of violence as crim law designed to deter this behaviour.
3. Unless Henry can show an exception to gen rule
4. Properly conducted sport – Boxing – Could be argued. However Coney says bare knuckle
fights are not properly conducted sport even though both agreed to one glove missing so
no exception. Plus even if regarded loosely as boxing doesn’t follow accepted rules as
wore blind fold so anything outside of rules of boxing cant be consented to – Billinghurst.
5. Horseplay – Similar to this case as friends were watching and encouraged play fight,
blindfold meant chances of hitting each other were small and if Henry can show he didn’t
intend any harm, as shown in Jones in throwing V up in air, then the fact that the injury of
a swelling took place would be included as an exception of horseplay and consent
allowed.
6. Conclude
7. Jack slashing Karim with knife – Clearly Jack is reckless in using a sharp weapon to try and
cause injury and does not fall under any exceptions in AG ref. Therefore for min of S20
offence he would be charged with the general rule would stop him successfully arguing
this defence, clearly Karim as a spectator gave no consent actually or legally to the
wound.