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Defences - Consent


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Consent
A case law developed defence, used mainly for non-fatal and sexual offences. It cannot be used for murder.
Controversy of consent
This defence has caused many debates due to the conflict of interests which arises from public policy versus individual freedoms.
Leach
In this case, V was crucified on Hamsptead Heath - he survived but had planned to die. D, who assisted him in doing so, argued that V had consented to the act. The court held that nobody could consent to their own murder, and therefore the defence was not allowed.
Elements of consent
Three elements are required for consent: the consent must be valid, the consent must be informed, and consent can be invalidated if obtained by fraudulent means.
Valid consent
V must know the exact nature to which they are consenting; V must also have the mental capacity to make the decision for themselves.
Burrell v Harmer
D was convicted of assault occasioning ABH after tattooing two boys aged 12 and 13 (the result of this was that their arms became inflamed and painful) - consent was not valid as the boys did not understand the nature of the act
Gillick
D, a Roman Catholic mother of five daughters sought a declaration that a doctor would be acting unlawfully if he gave contraceptives to her daughters without her consent. The controversy surrounding this case arose from the fact that one one hand, teenage pregnancies may increase if the courts decided that parental consent was necessary - however if they did not, the judges would be encouraging under-age sex. A majority of 3:2 (highlighting the controversy of the situation) held that a doctor could prescribe contraceptives to a girl under 16, in order to prevent damage to her health. A child under 16 who can fully understand the implications of the proposed treatment (i.e. Gillick competent) may give their own consent to medical treatment.