CONSENT
DEFINTION: Consent is not really a defence. This is because if a person consents, there is no
unlawful force for an offence. However, when pleaded successfully it is a complete defence.
GENERAL RULE
Consent is a complete defence that Consent can be a defence to minor non-fatal offences
(Donovan) but not fot a s47 OAPA offence or above unless recognised exception is met (R v
Slingsby)
EXCEPTIONS
IMPLIED CONSENT: there are situations in which the courts imply consent to minor touchings, which
otherwise would be a battery (Wilson v Pringle)
A-G Ref No 6 1980 exceptions include: sports and games, surgery, body modification, dangerous
exhibitions BUT NOT street fighting and sadomasochism.
R v Brown – the defence of consent could not be relied on in offences under s47 and s20 OAPA
1861 where the injuries resulted in sadomasochistic activities
R v Wilson – the consent was valid, the branding was akin to tattooing rather than infliction of pain
for sexual gratification. Court further held that consensual activity between husband and wife in
the privacy of their matrimonial home was not a matter for the courts.
SPORT
Under R v Barnes, the courts considered the following:
1. Intentional infliction of injury will always be criminal
2. For reckless infliction of injury, did injury occur during play or in a moment of temper, or in
over-excitement after the game had finished?
3. ‘off-the-ball’ injuries are likely to be criminal
4. If play is in the rules and the game does not go beyond those boundaries, then it will not be
criminal
R v Barnes – D’s conviction for s20 GBH was quashed as sports convisctions should only occur
where the conduct is sufficiently grave to properly categorise it as criminal. The conduct must be
beyond the rules of the game.
MEDICAL PROCEDURE
Mentally capable adults can consent to reasonable surgical treatment. If a person is unconscious
medical practitioners will try to obtain consent from relatives. If this is not possible and the
operation needed is one of utmost importance, then such an operation can be performed without
actual consent.
MISTAKEN BELIEF (HORSEPLAY)
A genuine belief in someone’s consent in horseplay can be a defence even if it is unreasonable.
R v Jones – D’s claimed V consented to this horsing around as it was done before as a joke. S20
convictions quashed.
REAL CONSENT
Consent must be real and obtained without deception or fear.
R v Dica – no defence allowed as D knowing he has HIV recklessly spread it to his victims, causing
s20 injuries.
R v Tabassum – the act consented to was not the act done, so no real consent to it (consented to
medical examination, not sexual gratification)
DEFINTION: Consent is not really a defence. This is because if a person consents, there is no
unlawful force for an offence. However, when pleaded successfully it is a complete defence.
GENERAL RULE
Consent is a complete defence that Consent can be a defence to minor non-fatal offences
(Donovan) but not fot a s47 OAPA offence or above unless recognised exception is met (R v
Slingsby)
EXCEPTIONS
IMPLIED CONSENT: there are situations in which the courts imply consent to minor touchings, which
otherwise would be a battery (Wilson v Pringle)
A-G Ref No 6 1980 exceptions include: sports and games, surgery, body modification, dangerous
exhibitions BUT NOT street fighting and sadomasochism.
R v Brown – the defence of consent could not be relied on in offences under s47 and s20 OAPA
1861 where the injuries resulted in sadomasochistic activities
R v Wilson – the consent was valid, the branding was akin to tattooing rather than infliction of pain
for sexual gratification. Court further held that consensual activity between husband and wife in
the privacy of their matrimonial home was not a matter for the courts.
SPORT
Under R v Barnes, the courts considered the following:
1. Intentional infliction of injury will always be criminal
2. For reckless infliction of injury, did injury occur during play or in a moment of temper, or in
over-excitement after the game had finished?
3. ‘off-the-ball’ injuries are likely to be criminal
4. If play is in the rules and the game does not go beyond those boundaries, then it will not be
criminal
R v Barnes – D’s conviction for s20 GBH was quashed as sports convisctions should only occur
where the conduct is sufficiently grave to properly categorise it as criminal. The conduct must be
beyond the rules of the game.
MEDICAL PROCEDURE
Mentally capable adults can consent to reasonable surgical treatment. If a person is unconscious
medical practitioners will try to obtain consent from relatives. If this is not possible and the
operation needed is one of utmost importance, then such an operation can be performed without
actual consent.
MISTAKEN BELIEF (HORSEPLAY)
A genuine belief in someone’s consent in horseplay can be a defence even if it is unreasonable.
R v Jones – D’s claimed V consented to this horsing around as it was done before as a joke. S20
convictions quashed.
REAL CONSENT
Consent must be real and obtained without deception or fear.
R v Dica – no defence allowed as D knowing he has HIV recklessly spread it to his victims, causing
s20 injuries.
R v Tabassum – the act consented to was not the act done, so no real consent to it (consented to
medical examination, not sexual gratification)
