“Public policy and public interest considerations will become increasingly important in deciding whether it is
appropriate to criminalise consensual activity, giving rise to even greater uncertainty in this area.” [Source 6 Lines
36-38]
Discuss the development of the defence of consent to non-fatal offences by the courts in light of the above
statement.
Section
AO1
AO2
LTS
Introduction
Quote as a response to the decision of the CA in Wilson, and its apparent
deviance from the HL in Brown, considering also the recognised exceptions to
the criminal law.
Need to balance personal autonomy and V’s decision to take a harmful course of
conduct.
Wilson making it clear develops on a case by case basis
S.7
Implicit
reference
l.35
General
Rule
Attorney General’s Reference No.6
Of 1980 CA
Lack of consent a general
ingredient of NF offence
Ordinarily consent a defence
Unless ABH intended or caused.
Approved in Brown
“transient and trifiling”
Link to MR problems – what if D intends a
lesser amount of injury than that which
occurs?
Slingsby says has to foresee the harm
Very narrow approach.
Low level of harm.
Source 2
l2-3
Nature of
the consent
Sometimes appears to give consent,
but not allowed, either on public
policy grounds or to protect V
Tabbassum
Richardson
Dica/ Konzami
Clarence
Gillick v West Norfolk AHA
Burrell v Harmer
Oluboja
Easy to tell apart ‘nature’ and quality’?
Artificial distinction?
Obiter in Dica (catholic couple, pregnancy)
Causing
wound or
harm for
“good
reason”? l.
15-16
Recognised exceptions and
limitations
Boxing Coney
Sport Bradshaw, Billinghurst,
Barnes, Chapman
Sexual Activity Donovan,
Slingsby, Brown, Wilson Emmett
Approved of by the majority in Brown, as
society still sanctions it.
Implied consent to harm within the rules of
the game, but the criminal law on top – when
is something criminal? Subjective nature of
the sport and the level of harm? Benefits
outweigh the need to protect V
Need to differentiate between sex with
violence, or violence with a sexual motive.
Limitations on right to private life under
ECHR art 8 – exception on the grounds of
public health and morals, but the overtones
of the cases, and differences between the
cases – can they really be distinguished
(Emmett approach was approved in Brown)
Also, branding one of the activities in Brown,
and the distinction between cases on the
basis of the level of harm V was exposed to
s.2 and 7
