Consent as a General Defence

1. Consent as a General Defence Key issues

2. 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.

3. Murder and defence of consent Can use the defence 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. • 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.

4. 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?

5. 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.

6. Horseplay and sexual activity Can consent Can’t consent Brown & others: Sado masochistic sex encouraged violence in society which criminal law aims to discourage. One argument against this view? • 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?

7. 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?

8. 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.

9. Encouraged by their friends whilst they were all being rowdy, Henry and Jack took part ina ‘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 underhis eye. Jack then took out a knife which he had hidden in his pocket. Before anyone couldintervene, Jack lashed out in Henry’s direction but missed him and, instead, inflicted a deep cuton the arm of Karim, one of the friends who was watching. The cut required a large number ofstitches.Consider the liability of Henry for the injuries to Jack, and the liability of Jack for the injuries to Karim. (25 marks)

10. Henry & Jack plan for defence of consent • 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. • 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. • Unless Henry can show an exception to gen rule • 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. • 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. • Conclude • 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.