Consent

Question 1

What are the two elements of consent?

Answer 1

• either V consented or D believed V consented even if wrongly believed
• offence is one which V can consent to

= for prosecution to proce that V did not consent and that D did not believe in V’s consent

Question 2

When is consent a defence to an offence against the person?

Answer 2

General rule is consent is only available as a defence to assault and battery but was extended to where ABH or worse is caused provided D:
* intended only to commit battery with consent of V
* and did not see risk of inflciting ABH

= so if D intended to cause ABH, consent is not available as defence even if V consented (unless conduct falls within exceptions)

Question 3

What are the exceptions to relying on consent where V can consent to ABH and above?

Answer 3

• medical treatment
• sport
• horseplay
• tattooing
• sexual gratification

body modification is not included in exception such like branding or removal of an ear

Question 4

What is the rule on medicial treatment and sport?

Answer 4

Medicial treatment:
* consent can be given for surgery and other medical treatment that causes harm

Sport:
* incidental injury caused while playing within rules of game will not be an offence as participants have consented to injury
* consent to force of ‘a kind which could reasonably be expected to happen during the game’

Question 5

Sexual gratification exception?

Answer 5

• defence of consent to accidental injuries sustained during consensual sexual activity
• cannot consent to infliction of harm that results in ABH or more

Question 6

Limitation on extending categories of exception?

Answer 6

Said that categories should not be extended by courts and new exceptions should be recognised on a case by case basis