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Summary Evaluation of consent - Criminal law
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Summary of evaluation of consent for OCR, written by an A* student
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General rule - cannot consent to ABH or above (AG ref no.6 of 1980) unless arecognised exception applies.
Evaluation:
The aim of the defence of consent is about balancing the freedom of an
individual against considerations of public policy.
So, the defence protects the vulnerable (those who lack capacity), e.g. Burrell
and Harmer. However, basing court decisions on public policy means that
there is inconsistency in cases, the law has not developed in a reasoned and
logical way. Although, some exceptions (e.g. sports and lawful surgical
interference), are reasoned and practised.
It is unjust that there is no defence of consent of murder - No one can consent
to death, so a terminally ill person must take their own life. If a person is
physically incapable, their wishes are denied, as anyone who helps them will
be guilty of assisting suicide (Pretty). Reform: Law Commission Consultation
Paper No.139 (1996):
● Suggested extending the range of situations in which consent
may be effective and removing some of the anomalies.
● They argued that D should be able to rely on V's consent to an
act intended to cause injury, or likely to cause injury, but not
to an act intended or likely to cause serious injury. So can
consent to ABH but not GBH.
● Surgical treatment circumcision, tattooing and ear-piercing to
be kept as a special case
● Want to remove the exceptions rough horseplay, sexual
activities, sadomasochistic activity.
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