Consent: defence

Consent: defence

1. Olugboja: D had sex with V who did not resist, struggle or scream, V had not consented as mere submission is not enough to amount to sconsent. Consent= positive yes, submission= not saying no. 4 general principles to consider (CIGI): Capacity of consent, informed consent, genuine consent, implied/express consent.

2. Capacity to consent: Gillick: means that V must have sufficient intelligence and understanding of the nature and consequences of what they are consenting to. Note: capacity to consent refers to ability, the elderly with mental problems may not have this capacity to consent.

3. Informed consent: for consent to be valid it must be informed. V needs to know the risks/possible consequences from D's act in order to give informed consent. Dica: 2 V's had not given informed consent as they weren't aware of HIV, a person consenting to sex was not consenting to the exposure of infection/injury of which she was unaware.

4. Genuine consent: V must be consenting to what D is actually doing. Tabassum: consent doesn't exist if V is consenting to something different than what is actually being done. Here, consented to a medical act not a sexual one. McNally: if D lies to V/deceives V about their identity, this will negate V's consent. Here, V was consenting to acts with a boy not a girl. Newland: same principle as above, consented to acts with a boy not a girl: NEW CASE: 2015.

5. Implied consent: on many occasions, V will give express consent, however there are some occasions where the law allows for implied consent to be given. There are instances of everyday touching to which the courts assume that a person gives implied consent- these are ordinary jostling of everyday life= Wilson v Pringle: e.g. of everyday jostling to which IC is given: contact sport, social contact at a party e.g. kiss on the cheek, crowded tube station, busy shopping centre.

6. Consent if a defence to battery. Slingsby: V had consented to touching so force applied was not unlawful. Murder: the defence can never be used in relation to murder: Pretty v UK: Courts reached this this due to a policy decision- crime too serious (wanted her husband to help her die as was suffering from motor neurone disease). S18 OAPA 1861: Consent can never be used as a defence: Leach: V asked Ds to crucify him, crime is too serious and has no social benefit so consent cannot be used. S20 OAPA 1861: consent cannot generally be used as a defence. Brown and others: 'consensually' inserting pins and hooks in each other for sexual purposes. Reason for general rule: not in public interest that people should try and cause others injury for no good reasons. Exceptions: male circumcision, piercing, violent sports, tattooing, S47: consent cannot generally be used. AG ref (no 6 of 1980): reason for general rule same as for s20. Exception: properly conducted games/sports, surgery,

   • dangerous exhibitions and lawful chastisement/correction. Exceptions to s20 and s47: properly conducted games and sports: Barnes: consent not a defence to intentional infliction of an injury, off the ball injury. E.g. something that wouldn't work is biting. Depends on reckless infliction of injury and injury incurred within rules and practice of the game is probably not criminal. Exception: rough horseplay: Jones: V's consent or D's honest belief of it to rough/undisciplined play could provide a defence as long as there was no intention to cause injury. Aitken: even D's drunken and mistaken belief in V's consent can be a defence. Exception: lawful activity: tattooing/branding: Wilson: husband and wife so wouldn't want to harm them, consensual within marriage, requested by v. Other lawful activities include: surgery e.g. operations, giving blood, tooth extractions. Dangerous exhibitions e.g. sword eating, lion training, knife throwing.

7. Murder: no. S18: no. S20, S47: maybe. Battery and assault: yes