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Criminal | Defences

Consent: Criteria

Model Answer | A Level

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Discuss the defence of consent

Arguably consent is not a defence because if there is consent it means there has been no unlawful act. Relevant considerations are in what circumstances a person is able to give consent and whether genuine consent is given.


Consent can only become a factor when considering certain offences. Generally, if an injury is caused then consent is not a defence.

Consent is always a defence to assault or battery because there is no injury. Under the principle that the law will not interfere with people’s rights to do what they wish.


A person cannot consent to being killed.

This raises important issues in relation to life support machines and euthanasia and decisions can be seen as unclear.

Commenting on life prolonging treatment Lord Goff noted .. the law draws a 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 [1993]).

However, a the family of a patient suffering from minimally conscious state condition argued that she was in pain and her life support should be withdrawn but this was opposed by the doctors. High Court judge ruled that the life sustaining treatment could not be stopped, stating: .. although not an absolute rule, the law regards the preservation of life as a fundamental principle... (W v M and S and NHS PCT (2011)).

The illegality of euthanasia has been challenged in number of cases.. The House of Lords and European Court of Human Rights have that found Article 2 of European Convention on Human Rights does not provide right to die and the protection of vulnerable citizens is of paramount importance. (Pretty (2002)).

Assisted suicide remains unlawful under the Suicide Act 1961. It is unclear if those who assist someone to travel abroad to commit suicide may be liable for prosecution (R (on application of Purdy) v DPP (2009)).


Defence of consent is only available in cases involving injuries more serious than common assault if in a category of recognised exceptions, eg. .. properly conducted games and sports, reasonable surgical interference and dangerous exhibitions...(Brown (1993)).

Areas where a public policy exception applies have been developed through case law.


Many sports involve some physical contact and risk injury inflicted by another.

In Barnes (2004), the defendant inflicted serious leg injury upon the victim after an attempted slide tackle during an amateur football match. Defendant accepted tackle had been hard but maintained it was fair and that the injury caused was accidental. He was convicted of a S20 offence under Offences Against The Person Act (OAPA) 1861.

On appeal it was found there is there is implied consent where the situation is within what can reasonably be expected and game is conventionally played and criminal prosecutions should be reserved for grave situations. It was suggested the following should be considered before a prosecution is brought: the type of sport, the level it was played at, the nature of the act, the degree of force, the extent of the injury and the state of mind of the person who caused the injury.

It is in the public interest to provide consent defence, so not to create criminal liability in normal sporting activities and to allow for participation in contact sports.

Social intercourse

There is implied consent in everyday minor touching. Ordinary jostlings experienced in a crowd cannot amount to battery (Wilson v Pringle (1987)).

A person can withdraw their consent and then such actions may lead to liability.

Medical procedures

Surgical treatment can usually be consented to expressly, by signing a consent form. In emergencies there is implied consent. Medical consent may be refused or withdrawn at anytime.

There may be statutory consent to blood tests, in some situations (Police Reform Act 2002).

Tattoos and piercings

Tattooing and body piercing can be consented and is regulated by statute such as Tattooing of Minors Act 1969.

May be able to be consented to even if injury is caused in the process (Wilson (1996)).


Horseplay can be seen as a public policy exception.

Lord Mustill stated .. 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 (1993)).

Consent to horseplay may be enough despite injuries (Jones (1986)).


No consent to sexual activities if the victim did not realise risk of catching a disease (Dica (2004)) and Konzani (2005)).

Defendant had consensual sexual activity with the victim, his signet ring caused small cuts on her, leading to blood poisoning and her death. The victim’s consent meant there was no unlawful act and the defendant was not guilty of manslaughter (Slingsby (1995)).

Genuine consent

Consent must be genuine. The fact a victim appears to consent may not be sufficient.

Insufficient understanding

Age may affect understanding and so be a factor in determining genuine consent (Burrell v Harmer (1967)).


If victim consents purely through fear, the question is whether threats are sufficient to induce the consent, in line with the defence of duress. It is a question for a jury.

Court of Appeal have found that there is a distinction between real consent and mere submission (Olugboja (1982)).


Case law regarding consent to fraudulent medical examination and treatment is unclear

It has been found a found the victim must understand the basis on which consent is being given (Tabassum (2000)). Conversely it has also been found exact basis of consent to treatment is not relevant (Richardson (1998)).

Mistaken belief

Mistaken belief that the victim consented may be sufficient for defence (Richardson and Irwin (1999)).

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