For the purposes of this Part, a person consents if he agrees by choice, and has the freedom and capacity to make that choice.
Cases considering section 74 25
A Local Authority v JB
The section defines consent by reference to choice, freedom and capacity but does not define capacity. The judgment left broader comparisons with the civil capacity test to individual criminal cases. (see paras [108]-[112])
R v BVA
The court interpreted consent as agreement by choice, with freedom and capacity to make that choice. Non-disclosure of filming can negate consent where the filming is sufficiently closely connected with the touching’s nature, purpose and performance rather than merely its surrounding circumstances. (see paras [28]; [46]-[52])
Lawrance, R. v
Section 74 requires agreement by choice with freedom and capacity to make that choice. A deception must be sufficiently closely connected with the performance of the sexual act to negate consent; a lie about fertility concerns its risks and consequences and did not remove freedom of choice here. (see paras [34]-[38]; [41]-[42])
- GA, R. v
- McNally v R.
- Ciccarelli, R. v
- White, R. v
- Doyle, R. v
- Jheeta, R. v
- Bree, R v
- EB, R. v
- Sex Matters, R (on the application of) v Director of Public Prosecutions
- Rashpal Samrai & Ors v Rajinder Kalia
- JH v MF (Rev 2)
- F v M (Appeal: Finding of Fact)
- Monica, R (on the application of) v Director of Public Prosecutions
- F, R (on the application of) v The Director of Public Prosecutions & Anor
- Assange v Swedish Prosecution Authority
- X City Council v MB & Ors
- R v C (Respondent) (On Appeal from the Court of Appeal (Criminal Division))
5 more judgments, and what each says about section 74, are in the case-law panel in the full Act.
139.Section 74 defines "consent" for the purposes of this Part. This definition is relevant to many sections in the Part including, for example, the offence of rape (section 1). The section refers to a person’s capacity to make a choice. A person might not have sufficient capacity because of his age or because of a mental disorder.