Lawful force- consent.
For many offences the conduct (conduct crime) or outcome caused (result crime) must be
done UNLAWFULLY.
Murder.
S18/20 OAPA.
Psychic assault.
Assault by beating.
Criminal damage.
Defences operate by making d’s conduct lawful.
Consent:
Defence to assault.
Exceptionally, defence to injury or risk of injury.
NB rules in relation to sexual consent are different- sexual offences act 2003 s74 to 76.
TWO MAIN ISSUES
1. Is consent available as defence to this conduct at all?
Available as defence to conduct which doesn’t cause injury- assault.
Not available as defence to conduct which causes injury unless ‘it is a foreseeable
incident of a lawful activity- Brown [1994]’
Not in public interest to cause bodily harm without good reason- attorney general’s
reference no.6 1980 [1981]
Permitted acts:
Surgery including cosmetic surgery- Brown.
Tattooing including amateur branding- Wilson [1996]
Sports including fighting sports and martial arts- Barnes [2004]
Horseplay and banter- Jones [1987], Aitken [1992], Richardson and Irwin [1999]
Risk of STD where not intended- Konzani [2005]
Not permitted:
Sadomasochism- Brown, domestic abuse act 2021. Any injury suffered as result of sexual
activity isn’t valid in eyes of law. Can’t cause injury without good reason.
Street fighting- Brown, Coney [1882]
Extreme body modification- BM [2018]
Euthanasia- R(Nicklinson) v ministry of justice [2014]
Cutting someone’s hair can be bodily harm- DPP v Smith.
2. If it is, is there:
Valid consent by V or,
Genuine belief in consent by d?
Valid consent from v:
Can be express or implied.
Capacity- Burrell v Harmer [1967], s8 family law reform act 1969, Gillick v west
Norfolk area health authority [1986], bell v Tavistock and portman NHS trust [2021]
Mistakes or deception as to nature of d’s identity- Richardson [1998], melin [2019]
Knowledge or informed consent- Konzani.
Sports and rules- Barnes ‘can only be what a player can reasonably be regarded as
having accepted by taking part in the sport’.
Daily life- Marland [2023]
For many offences the conduct (conduct crime) or outcome caused (result crime) must be
done UNLAWFULLY.
Murder.
S18/20 OAPA.
Psychic assault.
Assault by beating.
Criminal damage.
Defences operate by making d’s conduct lawful.
Consent:
Defence to assault.
Exceptionally, defence to injury or risk of injury.
NB rules in relation to sexual consent are different- sexual offences act 2003 s74 to 76.
TWO MAIN ISSUES
1. Is consent available as defence to this conduct at all?
Available as defence to conduct which doesn’t cause injury- assault.
Not available as defence to conduct which causes injury unless ‘it is a foreseeable
incident of a lawful activity- Brown [1994]’
Not in public interest to cause bodily harm without good reason- attorney general’s
reference no.6 1980 [1981]
Permitted acts:
Surgery including cosmetic surgery- Brown.
Tattooing including amateur branding- Wilson [1996]
Sports including fighting sports and martial arts- Barnes [2004]
Horseplay and banter- Jones [1987], Aitken [1992], Richardson and Irwin [1999]
Risk of STD where not intended- Konzani [2005]
Not permitted:
Sadomasochism- Brown, domestic abuse act 2021. Any injury suffered as result of sexual
activity isn’t valid in eyes of law. Can’t cause injury without good reason.
Street fighting- Brown, Coney [1882]
Extreme body modification- BM [2018]
Euthanasia- R(Nicklinson) v ministry of justice [2014]
Cutting someone’s hair can be bodily harm- DPP v Smith.
2. If it is, is there:
Valid consent by V or,
Genuine belief in consent by d?
Valid consent from v:
Can be express or implied.
Capacity- Burrell v Harmer [1967], s8 family law reform act 1969, Gillick v west
Norfolk area health authority [1986], bell v Tavistock and portman NHS trust [2021]
Mistakes or deception as to nature of d’s identity- Richardson [1998], melin [2019]
Knowledge or informed consent- Konzani.
Sports and rules- Barnes ‘can only be what a player can reasonably be regarded as
having accepted by taking part in the sport’.
Daily life- Marland [2023]
