their Caldwell test, which is an objective test and

their preferred test. The subjective test, also known as Cunningham test, makes the judges look at the case from the defendant’s perspective (Martin & Storey). Contrary to the Cunningham test, there is the Caldwell test, which is an objective test and looks at the case from the view of a reasonable man, making use of the reasonable person standard (Martin & Storey, 2015). After switching back and forth between the two test, current UK criminal law utilises the subjective Cunningham test since 2003 (Martin & Storey, 2015). 6. Identify the circumstances in which the defence of consent would and would not be available.In order to be able to consent to something, one must be capable to do so and comprehend the nature of the act (Martin & Storey, 2015). This is often not the case with children and mentally challenged adults. To establish the defence of consent and whether a child was able to comprehend the act it was consenting to, courts created the Gillick competence test. (Martin & Storey, 2015). If someone is not capable to properly consent or does not understand the act they are consenting to, the defence of consent will not be available for the defendant. Additionally, this will be the case if one consents to something one is not aware of as it was the case in R v Dica (2004) where the wife consented to sexual intercourse yet unknowingly and unwillingly contracted an STI from her husband (Martin & Storey, 2015). Consent through fraud will also not uphold in court, as it was ruled in R v Tabassum where women revealed their bare breasts to the defendant, thinking they did so for a medical examination while the defendant was not trained to give aforementioned examination (Martin & Storey, 2015). It is also noteworthy that the defence of consent can never be used as a defence for murder cases (Elliott & Quinn, 2016).However, the defence of consent will uphold in court when it is genuine consent, i.e. when practicing a sport, one consents to the risk of injury. This is also the case during a reasonable surgical interference as well as when body modification (piercings, tattoos, brandings) is taking place (Elliott & Quinn, 2016).