Consent 2011

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Consent 2011

  1. 1. G153 Criminal Law<br />2010-11<br />Non-fatal Offences Against the Person:<br />Consent<br />
  2. 2.
  3. 3. Some Basics...<br />What canyou consent to?<br />How does consent operate?<br />As a defence?<br />As part of the AR of assault?<br />Whyis it a defence at all?<br />
  4. 4. Both these women helped their children to die. <br />One was convicted of murder<br />One was convicted of assisting suicide... But not guilty of attempted murder.<br />Why the difference?<br />
  5. 5. What do we mean by consent?<br />It must be real<br />Informed?<br />Duress?<br />Capacity?<br />Mistake?<br />
  6. 6. General Rules:<br />“implied consent”<br />Collins v Willock 1984<br />AGs Ref No 6 of 1980<br />R v Leach 1969<br />What if D and V consent to the fight?<br />Basic rules of the case...<br />Any unlawful touching of V with out his consent is enough for ‘assault’<br />An assault must be done contrary to the will, and without the consent of V.<br />Ordinarily if V consents, D is not guilty<br />However, there can exceptions to this rule, due to public interest. <br />“transient and trifling”<br />R v Brown 1993<br />
  7. 7. So what is a “recognised exception”?<br />or<br />
  8. 8. How much do you remember from last lesson?Match the answer to the question<br />What is the general rule on consent?<br />Nature & Quality<br />On what grounds may there be exceptions to this rule?<br />Mere submission<br />Ordinarily if V consents, D has a defence to harm less than bodily <br />On what grounds is it a defence?<br />Who cannot consent?<br />Public policy<br />What type of action may not be enough for consent?<br />Acts as an excuse for D’s actions<br />What should D know for the consent to be “informed” <br /> Children, and those who lack capacity<br />
  9. 9. A new development:Conviction for on-the-ball in football.<br />Read the report: <br />Does he meet the Barnes test?<br />R v Chapman 2010<br />
  10. 10. Sexual Activity<br />R v Slingsby<br />R v Donovan<br />R v Brown<br />R v Wilson<br />R v Emmett<br />
  11. 11. Which other cases regarding harm with sexual aspects could you also include in any discussion on this area?<br />So: Can you consent to harm which is more than transient and trifling and is imposed during sexual intercourse?<br />
  12. 12. What about another jurisdiction?<br /> These are the facts of the American Browncase....<br />1. V is an alcoholic, who has tried everything to give up alcohol, but nothing has worked. She has lost one marriage to it, and can not hold down a job. <br />2. She marries a guy<br />3. She, in absolute desperation, says to her husband, "Whenever you see me drunk, you have to hit me. I'll start to associate it with the drink and I'll give up."<br />4. Her husband protests, and refuses, but eventually decides he has to help her. <br />5. One day, she comes back drunk, and he hits her a number of times, injuring her extensively.<br />6. The neighbours call the police, and the husband is arrested and charged with the equivilant of GBH<br />7. He argues, as his defence, that she consented to the violence, and she supports this in court.<br />Does he have a defence?<br />
  13. 13. Can you identify all of these cases?<br />Which are exceptions?<br />
  14. 14. Evaluation How good is the current law?<br />
  15. 15. Another definition of consent?<br />Sexual Offences Act 2003 s.74<br />a person consents if he agrees by choice, and has the freedom and capacity to make that choice.<br />Mental Capacity Act 2005<br />A person is unable to make a decision for himself if he is unable—<br />(a)to understand the information relevant to the decision,<br />(b)to retain that information,<br />(c)to use or weigh that information as part of the process of making the decision, or<br />(d)to communicate his decision (whether by talking, using sign language or any other means).<br />These are two of the definitions, with relation to health and sexual decisions<br />
  16. 16. Wayne is the captain of Northport United Football team. During an important match against their local rivals, Wayne is involved in a clash of heads in an incident with an opposing player, Andrew. Wayne receives a nasty bruise above the right eye and is badly concussed. Wayne insists upon continuing after treatment with a cold sponge but is obviously still in a very dazed condition. A few minutes later Wayne jumps wildly into a foul tackle on Andrew. Andrew is carried off in agony and x-rays later reveal that he has a broken ankle. <br />Assessing your knowledge... How much do you know?<br />Section C questions.<br />
  17. 17. Statement A: Andrew is liable for occasioning actual bodily harm to Wayne. <br />Statement B: Wayne is liable for intentionally causing the broken ankle sustained by Andrew.<br />Statement C: Andrew has a defence of consent for any charge brought by Wayne<br />Statement D: Wayne has a defence of automatism for any charge brought by Andrew. <br />
  18. 18. Understanding...Answer the Questions on the Cards... These will end up creating a basic essay plan!<br />Why is consent a defence?<br />Name three exceptions to the general rule<br />Give one reason why the current law should change<br />Explain why the courts have imposed limitations on the defence<br />Name one limitation on the defence<br />Give one reason why the current state of the law may be acceptable<br />
  19. 19. “The law on consent as a defence against the person recognises that the causing of deliberate harm may sometimes be justified.”Consider the truth of this statement (50)<br />You are going to use your mock as a starting point for improvement in essay writing. <br />Go back through your mock answer to section A with a highlighter:<br /><ul><li>Highlight each case you have used
  20. 20. Highlight each time I have put “AO2” in the margin (different colour!)</li></li></ul><li>What are you missing?<br />AO2?<br /><ul><li>Have you linked your cases back to the question?
  21. 21. Have you evaluated each legal rule and their development?
  22. 22. Have you developed your discussion (a paragraph, rather than a sentence)
  23. 23. Have you discussed the reforms to that area of the law, and the impact they may make?</li></ul>AO1?<br /><ul><li>Have you used only a few cases?
  24. 24. Have you failed to explain the key facts of your cases?
  25. 25. Have identified the area of law covered by your case?
  26. 26. Have you forgotten to mention the legal test or decision which came out of the case?</li></ul>Improving your response<br />
  27. 27. Now, you are going to write one section of the essay<br />“The law on consent as a defence against the person recognises that the causing of deliberate harm may sometimes be justified.”Consider the truth of this statement (50)<br />We are going to write the section on rough and tumble horseplay.<br />Start: Which cases would be useful?<br />Next: What rules come out of them?<br />Then: What justification is there for these rules?<br />And: What problems may there be with justifying this?<br />

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