GENERAL DEFENCES: CONSENT AO1
Definition:
This is a defence in non-fatal offences against the person meaning that no offence
has taken place (only available for assault and battery and covers some sexual
offences)
Elements of the defence:
Consent must be true
Fraud may vitiate consent if it deceives as to identity of defendant or as to
nature and quality of act – Clarence, Cuerrier, Dica, Konzani, Richardson,
Tabassum
Consent gained under duress vitiates consent–Olugboja
Consent must be valid
Age may negate consent – Burrell and Harmer, Gillick
An adult must have capacity to consent
Consent can be implied – Wilson v Pringle
An honest but mistaken belief in consent is effective as a defence – Morgan
Limited nature of the defence:
V can never consent to their own death - Pretty, Lamb, Nicklinson
Does not normally apply to any offence under OAPA 1861 unless one of
accepted exceptions –AG Ref (No 6 of 1980), Brown
Exceptions:
Ritual circumcision male circumcision for religious purposes is lawful where
both parents agree to it but female ‘circumcision’ is banned under the
Female Genital Mutilation Act 2003
Can be defence in physical contact sports if within the rules of the game.
Street-fighting and bare knuckle fighting are not lawful as the risks to the
fighters outweigh the entertainment value – Coney, Billingshurst, Barnes,
Ciccarelli
, Horseplay can give rise to defence as there was no intention to cause injury
and a victim can give effective consent to the risk of accidental injury in the
course of rough undisciplined play. - Jones, Aitken
Lawful chastisement. Reasonable and lawful chastisement (corporal
punishment) of children is lawful if ‘reasonable and proportionate in the
circumstances, involving no cruelty’. – A v UK
Reasonable surgical interference, injections, tattooing (or branding) and
body piercing give rise to consent – Wilson
Not always available in non-fatal sexual offences but is sometimes available -
Donovan, Brown, Wilson, Emmett, Slingsby
Risk of STD/HIV transmission - V can validly consent to the risk of infection
in a sexual encounter provided V was fully informed of the risk. Obviously, this
does not include situations where either party intends the infection to be
spread. – Dica
, CRIMINAL THEORY AO1
Actus reus:
A voluntary act – Hill v Baxter
Actus reus exists if the defendant is responsible for the state of affairs –
Winzar
An omission generally does not form the actus reus unless:
o There is a statutory duty – Road and Traffic Act 1988, s.5 Domestic
Violence, Crime and Victims Act 2004
o A contractual duty – R v Pittwood
o A duty based on a special (often familial) relationship – R v Gibbins
and Proctor
o An assumption of duty – R v Stone and Robinson
o An official position – R v Dytham
o A duty to avert a danger created – R v Miller, R v Evans
Causation
o Factual causation – ‘but for’ test – R v Paggett, R v White
o Legal causation – was the defendants conduct an operative and
substantial cause (or a significant contribution)? – R v Smith, R v
Hughes
Intervening act – a new intervening act may break the chain of causation.
o Medical negligence is not an intervening act unless it was so potent
(and independent of the D’s act) as to render D’s conduct insignificant –
R v Jordan
o Victims own act (self-neglect or suicide) is an intervening act - R v
Wallace
o A daft and unforeseeable act by victim is an intervening act – R v
Roberts (not an intervening act)
o Act of a third party can be an intervening act – R v Pagett (not an
intervening act)
o Drugs cases – free and voluntary act of self-injection by victim is an
intervening act – R v Kennedy
o Switching off life support is not an intervening act - Bland
o Thin skull rule – take your victim as you find them is not an intervening
, act – R v Blaue
Mens rea:
Mental or fault element of crime
Intention
o Direct intent – aim, purpose or desire to bring about the outcome – R v
Mohan
o Indirect intent – the jury can find the necessary intention if they feel
sure that the outcome was a virtual certainty of D’s actions and the D
appreciated this – R v Nedrick
Subjective recklessness
o D is aware of the risk but takes the unjustified risk – R v Cunningham
(was not reckless)
Negligence
o Gross negligent manslaughter – D’s negligence is so extreme that the
jury considers it ‘gross’ – R v Adomako
Strict liability
o No need to prove the defendant had the mens rea/was at fault
o Statute usually identifies the offence as strict liability
o If it is unclear if the offence is strict liability, the following principles are
followed:
There is a presumption that mens rea is required – Sweet v
Parsley
This presumption is stronger for offences which are truly criminal
Often in cases of social concern, such as misuse of drugs, road
safety, underage gambling and firearms control
Transferred malice
o Where the mens rea of one offence is transferred from its intended
victim to another victim – R v Latimer
o Mens rea for one offence cannot be transferred to an unintended
second, different offence – R v Pembilton
Coincidence of actus reus and mens rea
o This requires there to be a continuing act – Fagan v MPC
o There is a series of acts – Thabo Meli
o These acts are part of one transaction
