The defence of consent to offences against the person does not rely upon particular legal principles or legal notions of acceptable harm. Rather, it has evolved as a matter of public policy. This allows for an unprincipled approach to determining whether the defence of consent is lawful, as was clearly illustrated in the case of R v Brown  1 AC 212 .’
The defense of consent for non-fatal offences against the person has developed from society’s consciousness rather than from established legal basis. It lies at the heart of the controversial function of criminal law to balance preservation of personal autonomy and public protection. When determining whether consent is an appropriate defense for non-fatal offences against the person, the liberal and the paternalist visions of criminal law are in tension. This explains the consideration of public policy in determining the circumstances in which an individual may consent to otherwise criminal harmful activities. The lack of a rigidly established threshold makes the Courts’ approach largely based upon moral perceptions, undermining the fairness which the law ought to guarantee. This is why “borderline cases”1 like R v Brown2, constitute problematic precedents not consistently applicable.
The cases of R v Donovan3and Attorney General’s Reference (No. 6)4establishedthat consent constitutes a defense to assault or battery as both offences do not require proof of harm inflicted on the victim. The latter, however, recognizes exceptions in which, despite the occurring of harm, consent may still constitute a valid defense for public interest purposes. This demonstrates an attempt of the law to maintain a balance and avoid being overly restrictive. The mainissue with the recognized exceptions concerns injuries occurred during sexual activities, involving harm willfully inflicted for sexual pleasure, as in Brown. The majority refused to allow consent as a defense for homosexual sadomasochist conduct, yet its rationale results controversial and reveals the moralistic conclusions of the judges, concealed behind poorly justified public policy reasons.
Relying on the case of Brown, this essay will attempt to demonstrate how public policy induces inconsistency in Courts’ decisions, undermining the essential aim of the law to ensure impartiality. The paper will: first, assess the majority and minority judgments of the case relying on the Hart/Devlin debate to reveal the opacity of the majority’s decision in using public policy to impose moral conclusions; second, by comparing Brown to other cases of the recognized exceptions, it will reveal the law’s failure to strike a balance between public protection and individual autonomy, ultimately generating inconsistency.
The deceitful employment of Public Policy in R v Brown and its relationship with the Hart/Devlin debate
The debate between Herbert Hart and Lord Devlin arouse following the Wolfenden Report’s5 publication which found extensive expression in the contrasting positions of the Majority and Minority judgments of Brown on the legitimacy of private homosexual behavior and the relationship between public morality and the law. However, it should be recognized that Hart’s clear-cut rejection of morality and public interest as assessment parameters constitutes a better approach to ensure avoidance of unprincipled conclusions and preservation of personal autonomy. He observes that when dealing with private consensual activities, its public regulation “may be almost as destructive of its value for the participants as its outright prohibition”6.
The Minority in R v Brown
Hart was relied on by the minority of R v Brown. He did not recognize the morality of the reasonable man as a solid ground for criminal punishment because“law is an immensely useful device for making our lives predictable and manageable”7. Hart refused to base the criminalization of conduct on public morality, appreciating instead established legal principles. Similarly, the dissenting judgments of R v Brown suggested a deferential approach towards Parliament in recognizing that “if society takes the view that this kind of behavior, even though sought after and done in private, is either so new or so extensive or so undesirable that it should be brought now for the first time within the criminal law, then it is for the legislature to decide”8. This position appears reasonable in recognizing that public policy should not constitute an excuse for the judiciary to render unlawful an otherwise lawful act. The attempted distortion pursued by the majority reveals the precariousness of public policy, which Hart sought to emphasize in pursuing his main objective of avoiding cruelty.
The Majority in R v Brown
In contrast, Devlin, defended the enforceability of “Clapham omnibus”9 moral views by criminal sanctions. He recognized the ineffectiveness of legal notions when dealing with consent and “thought the law was clumsy and ineffectual”10. Devlin believed morality to be of an underlying public nature because society is a “community of ideas. These ideas are its morality”11, thus he made “no distinction between private morality and public morality”12. Similarly, the majority in R v Brown, refused to regard the appellants’ conduct as entirely private and recognized the need to apply public morality. Janice Tsang argued that the majority’s paternalistic approach constituted a “poorly-disguised way of imposing the society's or the majority's view of what is good”13, highlighting the easiness with which public policy leads to unscrupulousness. The public policy assessment appears influenced by judges’ distaste for the acts questioned. First, the need for a civilized society to be protected from acts comprising a substantial degree of harm was emphasized. In addition, it was defined as “a cult of violence”14. Judges stressed the uselessness of distinguishing between actual and potential harm by finding the appellants merely lucky. This enabled them to “consider the possibility that these activities are practiced by others and by others who are not so controlled”15; a consideration which falls within the realms of public policy. Second, Lord Lowry relied on the potential dangerousness of “the free flow of blood”16, to suggest that such activities “cannot be regarded as conducive to the enhancement or enjoyment of family life or conducive to thewelfare of society”17. The judge probably concealed his personal disregard for homosexual activities behind the contemporary instilled fear of sexual infectious diseases like HIV or AIDS, and used them to justify public policy necessity.
Finally, Art 8 of the ECHR was described as not constituting “part of our law”18 to legitimize crossing the boundaries of privacy. In the absence of established boundaries, the threshold of lawfulness was deliberately set low at a point which inevitably would be crossed by the appellants, despite not involving impairing wounding.
The deceitful use of Public Policy and its relationship with the controversies on the recognized legal exceptions to Consent as a Defense
The establishment of accepted categories in A-G Reference (No. 6)19, ultimately demonstrated that “paternalism, and even disgust, seem to take over as sources of guiding reasons to restrict liberty”20.
Determining whether consent may constitute a lawful defense on public policy grounds proved controversial also when comparing Brown to other cases. This illustrates a failure of the criminal law to establish a balance between public protection and individual autonomy preservation. Indeed, the legally recognized exceptions do not constitute an exhaustive list, nor do those categories set identifiable parameters of what may be included. The most contentious categories for the purposes of this essay are: sexual pleasure and sport.
Cases involving sexual activities between heterosexual couples took opposite approaches to the majority in Brown, generating incoherency.
R v Slingsby21involved a decease which, despite incidental, evidently caused more serious consequences than the appellants’ conduct in Brown, nevertheless consent constituted a valid defense to actions which did not involve the deliberate infliction of injury, with neither party foreseeing harm. The controversy arises from the Court’s lowering the threshold of consent despite the more serious consequences.
This reasoning may reveal the judges’ prejudices on homosexuality, not as customary at the time, favoring heterosexual relationships. Similarly, in the subsequent decision of R v Wilson22, distinguished from Brown, individual autonomy overrode public protection: branding was considered analogous to tattooing which belongs to the recognized exceptions; there was no sexual intent and, most importantly, it would not be in the public interest to interfere “in the privacy of the matrimonial home”23. This, however, casts major doubts as to judges’ reliance on public policy to limit the privacy issue to husband-wife heterosexual relationships also in light of the decision of the ECHR following Brown, which refused to recognize a breach of Art. 8. In concluding that there is no public interest, judges adopted the approach of the minority in Brown and “it is hard to see on what basis Wilson can be distinguished from Brown”24. Subsequently, Emmett25 rendered the approach further unclear because distinguished Wilson and re-affirmed Brown. The ambiguity of consent as a defense comprises “the absence of clear boundaries to the exceptions”26. The principle of fair warning appears disregarded by the absence of clear legal notions, generating erratic conclusions that violate personal autonomy in the name of public protection.
R v Barnes27recognized that in highly competitive sports, conduct outside of the rules might be expected and the threshold of unlawfulness was allowed flexibility. Where the conduct fell within a “grey area”, “a tribunal of fact was to make its own determination as to which side of the line the case fell”28. However, on what grounds was the threshold of consent allowed flexibility for competitive sports, against homosexual activities’ heavy penalization? The coeval negative perception of homosexuality appears to have overridden a need for individual autonomy to be preserved and allowing this discretion contributed to broadening the uncertainty.
Sports involving the inevitable infliction of harm, such as boxing, result even harder to be justified through the defense of consent. R v Coney29outlawed prize fights and, most importantly, established the legal basis for boxing. Consequently, Lord Templeman in Brown referred to Coney to conclude that “rightly or wrongly the courts accepted that boxing is a lawful activity”30. However, since harm is present in both boxing and in sadomasochism, on what grounds are opposite conclusions reached despite applying the same reasoning? Unreasonable excuses were relied on to justify the lawfulness of boxing, revealing pervasive morality. Given the frequency of fatal brain injuries in boxing, “the question why boxing is still lawful needs to be approached with circumspection”31.
This essay attempted to illustrate how policy considerations weight on the determination of consent as a defense to offences against the person and revealed the underlying failure of the law to balance public protection and personal autonomy. The resulting unprincipled approach crystallized in Brown and in its comparison with other cases.
Simon Cooper and Mark James recognize that “it is time to rethink the law in this area to reflect what society chooses to tolerate, how it reaches that decision and who is representative of society”32. They suggest an alternative of three wider categories to the existing exceptions whose standards of assessment would be based on societal tolerance, thus change in relation to society’s development of its perception of those issues. Nevertheless, they recognize that determining the “standards of tolerance” for activities involving infliction of pain for the purposes of entertainment is an “insoluble”33 issue, which at present remains unsolved. In light of this, if individual autonomy is respected, harm does not matter as relying on it would be “too crude and unsophisticated”34, only consent does.
'Offences against the Person, incorporating the Charging Standard | The Crown Prosecution Service' (Cps.gov.uk, 2020) accessed 21 February 2020.
2 1 AC 212.
3 2 KB 498.
9Alan Ryan, ‘Hart and the Liberalism of Fear’ in Matthew Kramer, Claire Grant, Ben Colburn and Antony Hatzistavrou (eds), The Legacy of H.L.A. Hart: Legal, Political and Moral Philosophy (OUP 2008) 322.
13Janice Tsang, ‘State interference and sadomasochism’ (2005) 12 UCL Jurisprudence Review 161, 173.
14Brown (n 2) 237.
19A-G Reference (n 4).
20Horder (n 6) 335.
21 Crim LR 570.
22 QB 47.
24Horder (n 6) 153.
25 All ER (D) 641.
26Horder (n 6) 335.
27 1 WLR 910.
29(1882) 8 QBD 534.
30Brown (n 2) 232.
31Horder (n 6) 332.
32Simon Cooper and Mark James, ‘Entertainment – the Painful Process of Rethinking Consent’  Crim LR 188.
33Cooper and James (n 32) 198.
34Horder (n 6) 154.
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