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Published: Wed, 07 Mar 2018

CASES ON CONSENT

CONSENT TO ACTUAL BODILY HARM

R v Wilson (1996) Times Law Report March 5 1996

The defendant had been charged with assault occasioning a.b.h. contrary to

s47 of the O.A.P.A. 1861. The activity involved the defendant burning his

initials onto his wife’s buttocks with a hot knife because she had wanted his

name on her body. The Court of Appeal held that consensual activity between

husband and wife in the privacy of the matrimonial home was not a proper matter

for criminal investigation or criminal prosecution. The court believed that the

defendant had been engaged in an activity which in principle was no more

dangerous than professional tattooing. Thus, the court was of the opinion that

it was not in the public interest that his activities should amount to criminal

behaviour.

CONSENT TO RISK OF UNINTENTIONAL A.B.H.

R v Billinghurst [1978] Crim LR 553.

During a rugby match and in an off-the-ball incident B punched an opposing

player, in the face fracturing the jaw. B was charged with inflicting grievous

bodily harm contrary to s20 of the Offences Against the Person Act 1861. The

only issue in the case was consent. Evidence was given by the victim that on

previous occasions he had been punched and had himself punched opponents on the

rugby field, and by a defence witness, a former International rugby player, that

in the modern game of rugby punching is the rule rather than the exception.

It was argued by the defence that in the modern game of rugby players

consented to the risk of some injury and that the prosecution would have to

prove that the blow struck by B was one which was outside the normal expectation

of a player so that he could not be said to have consented to it by

participating in the game. The prosecution argued that public policy imposes

limits on violence to which a rugby player can consent and that whereas he is

deemed to consent to vigorous and even over-vigorous physical on the

ball, he is not deemed to consent to any deliberate physical off the

ball.

The judge directed the jury that rugby was a game of physical

necessarily involving the use of force and that players are deemed to consent to

force “of a kind which could reasonably be expected to happen during a

game.” He went on to direct them that a rugby player has no unlimited

licence to use force and that “there must obviously be cases which cross

the line of that to which a player is deemed to consent.” A distinction

which the jury might regard as decisive was that between force used in the

course of play and force used outside the course of play. The judge told the

jury that by their verdict they could set a standard for the future. The jury,

by a majority verdict of 11 to 1, convicted B.

R v Jones (Terence) (1986) 83 Cr App R 375.

The defendants were convicted of inflicting grievous bodily harm on two

schoolboys, who had been tossed high in the air and then allowed to fall to the

ground by the defendants. The defendants’ evidence was that they regarded this

activity as a joke. There was some evidence showing that the victims, likewise,

so regarded this. The judge declined to direct the jury that if they thought

that the defendants had only been indulging in rough and undisciplined play, not

intending to cause harm, and genuinely believing that the victims consented,

they should acquit. On appeal, their appeals were allowed on the basis that

consent to rough and undisciplined horseplay is a defence; and, even if there is

no consent, genuine belief, whether reasonably held or not, that it was present,

would be a defence.

R v Aitken and Others [1992] 1 WLR 1066.

The three defendants and a man named Gibson were all RAF officers attending a

party to celebrate the completion of their formal flying training. During the

course of the evening the defendants had, in jest, tried to ignite the fire

resistant suits of two fellow officers. When G indicated that he was leaving the

party to go to bed, the defendants manhandled him and set fire to his fire

resistant suit. Despite the rapid efforts of the defendants to douse the flames,

G suffered serious burns. Although it was accepted that the defendants had not

intended to cause injury to G, the defendants were court martialled, and

convicted of inflicting GBH contrary to s20 of the Offences Against the Person

Act 1861.

An appeal against conviction was allowed. The Courts-Martial Court of Appeal

held that the judge advocate should have directed the court to consider whether

G gave his consent as a willing participant to the activities in question, or

whether the appellants may have believed this, whether reasonably or not.


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