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Criminal | Defences

Consent: Criteria

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[Flash Card 1 of 3]

  • arguably not a defence / no unlawful act if there is consent
  • relevant considerations / in what circumstances person able to give consent / whether consent is genuine


  • generally if injury caused no consent defence / defence to assault or battery as no injury / principle law not interfere individual freedom


  • person cannot consent to being killed / issues with life support machines & euthanasia / lack of clarity
  • life prolonging treatment / Lord Goff:.. crucial distinction between cases in which a doctor decides not to provide, or to continue to provide, for his patient treatment or care which could or might prolong his life, and those in which he decides.. actively to bring his patient's life to an end... (Airdale NHS Trust v Bland)
  • patient in minimally conscious state / family argued she in pain & life support be withdrawn / opposed by doctors / High Court judge ruled life sustaining treatment not be stopped / .. although not an absolute rule, the law regards the preservation of life as a fundamental principle... (W v M and S and NHS PCT)
  • illegality of euthanasia challenged / HoL & ECtHR found Article 2 of ECHR not provide right to die / protection of vulnerable citizens of paramount importance (Pretty)
  • assisted suicide unlawful under Suicide Act 1961 / unclear if assist someone to travel abroad to commit suicide / may be liable for prosecution (Purdy)
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[Flash Card 2 of 3]


  • consent when injuries occur / only defence if activity in category of recognised exceptions / public policy exceptions developed through case law / .. properly conducted games and sports, reasonable surgical interference and dangerous exhibitions...(Brown)
  • implied consent / everyday minor touching / ordinary jostlings in crowd not battery (Wilson v Pringle) / person can withdraw consent / such actions may lead to liability
  • medical procedures /surgery expressly consented (signing form) / emergencies implied consent /medical consent may be refused or withdrawn at anytime / may be statutory consent to blood tests (Police Reform Act 2002)
  • tattoos & piercings / can be consented / regulated by statute (Tattooing of Minors Act 1969) / even if injury caused (Wilson)
  • horseplay / Lord Mustill: .. As a matter of policy the courts have decided that the criminal law does not concern itself with these activities, provided that they do not go too far... (dissenting in Brown) / even if injury caused (Jones)
  • sexual / no consent if V not realise risk of catching a disease (Dica confirmed in Konzani)
  • D had consensual sex with V / signet ring caused small cuts leading to blood poisoning & V's death / no unlawful act / not guilty of manslaughter (Slingsby)
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[Flash Card 3 of 3]


  • many involve physical contact / risk injury inflicted by another
  • D inflicted serious leg injury upon V / D attempted slide tackle during amateur football match / D accepted tackle was hard but fair & injury accident / CoA quashed D's GBH S20 conviction / held implied consent if situation is within what can reasonably be expected / & game played conventionally (Barnes)
  • public interest to provide consent defence / not create criminal liability / allow for participation in contact sports
  • criminal prosecutions in grave situations only /considerations set out in Barnes/ type of sport / level it was played at / nature of the act / degree of force / extent of injury / state of mind of person who caused injury

Genuine Consent:

  • consent must be genuine / fact V appears to consent may not be sufficient
  • insufficient understanding / age may affect understanding / factor in determining genuine consent (Burrell v Harmer)
  • if V consents purely through fear / whether threats sufficient to induce the consent / in line with duress / question for jury / CoA found distinction between real consent & submission (Olugboja)
  • fraudulent medical examination & treatment / case law unclear / found V must understand basis on which consent is given (Tabassum) / conversely found exact basis of consent to treatment not relevant (Richardson)
  • mistaken belief V consented may be sufficient / students indulged in horseplay / Ds dropped V from balcony / believed V consented / CoA overturned Ds' GBH S20 convictions (Richardson & Irwin)
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