Criticising Consent and Insanity


Applied Inconsistently (Consent)

In Brown: homosexual men were unable to plead consent to their sado-masitistic activities due to it having no social value. 

Charged with ABH-no medical treatment was needed.

However, in Wilson- man branded his name onto his wife using hot metal- judge allowed consent even though the woman needed medical treatment. 

Examples shown + Law is inconsistent, this leads to uncertainty in the law because each outcome of the cases are different and so future outcomes cannot be predicted. 

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Public Policy Exceptions (Consent)

Dangerous sports (like boxing) accept consent as a defence, fighting on the street doesn't = Confusing that some dangerous sports are legalised and others aren't. Some people consider street fighting a sport just like boxing. 

Horseplay is a defence- used when people of a similar age use friendly violence towards eachother.

Can also be applied when there's a mistaken belief in consent. 

Aitken- man wearing fireproof suit fell asleep, friends set him on fire, causing serious harm. D's allowed to plead mistaken belief in consent. 

Compare what happened in Aitken to the case of Brown (all the men consented)- hard to find the values in the public policy exception of horseplay as it would appear that D's in Aitken didn't have consent at all. 

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Not Available to s.5 of the Sexual Offences Act 20

Girl is under 13 she cannot consent to sex. 

In the case of G, a boy genuinely believed a girl he had sex with was 15, when she was actually 12. 

The boy was convicted of statutory **** despite the girl having lied about her age. 

Criticised because the boy had no MR to have sex with an under aged girl yet was still punished. 

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Overlaps with automatism (Insanity)

Must be decided if a persons automatic state is due to internal/external factor. 

Any internal cause maounts to insanity- D's in a automatic state can only plead insanity. 

Insanity and automatism are differenent- plead automatism the BofP is on prosecution to prove beyond all reasonable doubt the defence applies. For insanity- BofP on D. 

Also, if Insanity applies D is found not guilty by reason of Insanity- arguably not a guilty verdict. This allows for confusion. This is illistrated clearly in cases of Quick and Hennessey. 

Quick- D took insulin but forgot to eat- attacked someone (automatism)

Hennessey- D didn't take insulinm stole a car (insanity) 

Criticise because they are both similar, but have different defences. This is because of the external/internal factors attached to insanity and automatism. Seem more consistent to have the same outcomes for cases involving diabetics, and any illnesses for that matter. 

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The decision in Windle (Insanity)

To plead insanity the D must not know the nature and quality of his act or must not know what he was doing was wrong. 

Windle- D said '' '' after killing his wife. 

HL said this showed he knew what he was doing. 

CA- wasn't sure if this was ''good law'' as the man had a mental illness and may not have intended, under normal circumstances, to do what he did. 

They were forced to follow the HL showing uncertaincy in legal decisions. 

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Proposals of reform for Insanity

Butler Committe suggested the verdict of ''not guilty by reason of insanity'' should be replaced by the verdict of ''not guilty on evidence of a mental disorder'' (The 1989 Law Commission Drafts Criminal Code supported this. 

More resently the Law Commission published a discussion papper in July 2013 setting out several proposals for reforms...

  • Said that people should be exempt from criminal responsibilty if they could not have avoided committing the crime. 
  • The defence would only be avilable to a total lack of capacity not a partical one. 
  • The accussed must not be at fault of their lack of capacity (such as drinking( 
  • The defence on Insanity should involve all psychological or psychiatric conditions, like epilepsy or Alzheimers.
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