Explain how and why the courts have restricted the availability of consent as a defence to non-fatal offences against the person?

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Explain how and why the courts have restricted the availability of consent as a defence to non-fatal offences against the person?

In theory consent is available to murder and all non- fatal offences against the person. However in reality, consent could not be used for anything more than assault & battery. This fact was stated by Lord Jauncy in Brown and others.  Therefore, consent is not available for euthanasia, even if the victim is critically ill. There are some situations where the courts imply consent to minor touching, these can be everyday situations where there is a crowd of people and it is impossible not to have some contacts.

   If V consents to D’s act, it does not necessarily mean that consent is valid. V must be able to comprehend the nature of the act, thus in Burrel v Harmer, D was convicted as V did not understand the nature of the act. In Richardson, the courts confirmed that fraud does not necessarily negative consent. It only does so where V is deceived as to the identity of the person or the nature and quality of the act. However, in Tabassum, D was convicted as court of appeal stated that V was consenting to the nature of the act but not to its quality. Thus, nature and quality are two separate elements. As a result of this, in the case of Dica, it was decided that Clarence was wrongly decided as in both cases, the victims did not consent to the quality of the act. This means that V had not consented to sex and as a result of this D should be liable for rape. However, in B, the court of appeal quashed D’s conviction of rape as it was held that parliament should decide on this matter.  

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   In Wilson, the court of appeal extended the proposition in Brown and others and stated that branding was no more hazardous than a tattoo. In Brown and others it was also decided that consent was available to lawful activities such as contact sports, surgery, tattooing, ear-piercing and horseplay. Consent in horseplay was accepted in Jones; honest belief in consent will negate the mens rea of the defendant. The courts have accepted that social life may involve some peril and law should distance itself from it. In surgery, bodily harm is not an issue, given that no harm is inflicted. However, wounding ...

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