Consent Revision PDF

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Summary

Looks at all statutory provisions and case law affecting consent in criminal offences ...

Description

CONSENT: - S.74 = STATUTORY DEFINITION OF CONSENT = “a person consents if he agrees by choice, and has the freedom and capacity to make that choice” (further definitions in S.75(1) and (2), as well as S.76(1) and (2)). - R v Malone = it isn’t required that consent is demonstrated or communicated - R v Olugboja = submission is not consent - R v Robinson; R v Ali = acceptance, acquiescence and compliance is not consent - R v C = consent must be real - R v Doyle = consent may be reluctant – there is a line between reluctance and free exercise of choice and unwilling submission to demand in fear - Freedom and Choice = R v Jheeta – deceptions such as money are insufficient but facts to do with fake schemes are sufficient, , common-sense way of using evidence (F v DPP), as to the gender of an individual (R v McNally, R v Newland), use of a condom (Assange v Sweden). - Capacity = R v A = lack of capacity to consent = no consent – burden of proof on prosecution to prove that B did lack the capacity to give consent. Capacity and intoxication – if B loses the capacity to consent via the voluntary intoxication she is still not consenting. - Drunken consent = R v Bree – “Drunken consent is still consent” - Informed consent = R v B – HIV case, consent wasn’t given with full information provided. - CONSENT = S.75(1) AND (2) : o A) Using violence against B or causing B to fear immediate violence – R v Mba o B) Causing B to fear that violence is or would be used against another person o C) B was unlawfully detained o D) B was asleep or otherwise unconscious – R v Bree: o E) B was unable to communicate because of physical disability o F) Someone had administered to B / caused B to take, without B’s consent, a substance which was capable of causing or enabling B to be “Stupefied or overpowered”. - EVIDENCE?: R v Ciccarelli – “evidence beyond the fanciful or speculative had to be adduced to support the reasonableness of his belief in her consent”. - CONSENT: S.76(1) AND (2): “The circumstances are that – [a] intentionally deceived B as to the nature or purpose of the relevant act, (b) intentionally induced B to consent to a relevant act by impersonating a person known to B. - MEDICAL TREATMENT: R v Flattery, R v Tabassum, R v Linekar, R v Jheeta - PURPOSE: R v Devonald, R v Bingham – hard to “ascertain the purpose of a sexual act” - IMPERSONATION – S.76(2)(b) requires the impersonation to be of someone known to B – R v Elbekkay - celebrities?...