The lack of statutory regulation on the issue of consent in relation to assault and battery has left it exposed to much criticism. Although it was hoped that the Offences Against the Person Bill would propose a statutory basis for consent, it simply endorsed adherence to the common law1. In accordance with common law reasoning, it would be expected that some general principles could be drawn from the initial case law2. This would serve to explain the law, an example of such being the 'neighbour principle' derived from Donoghue v Stevenson3. This has not occurred.
The case law concerning consent contains no coherence and fails to establish any consistent principle, which contravenes the rule of law. In order to determine whether "The law is in urgent need of clarification"4, case law will form the basis for discussion. This will then be analysed and linked to the rule of law in order to assess its clarity. A study of the impact upon democracy and possible reforms will then be scrutinised. Examination of these factors will enable an assessment of the degree of efficiency to which the common law on consent operates, and whether reform of this area is necessary.
Whilst it seems "appropriate to safeguard the… person against physical harm"5, the case law conflicts as to the correct standard of harm that a person may consent to. The decision in R v Brown6 (hereafter Brown) has been labelled controversial and uncertain7, unprincipled and incoherent8, and unconvincing9. The defendants, a group of sado-masochistic homosexuals, were charged with assault occasioning actual bodily harm under s. 47 of the Offences Against the Person Act 1861 (hereafter OAPA), and unlawful wounding under s. 20 of the same Act, despite all parties consenting to the exploits.
The decision drew principles from R v Donovan10, determining that the defence of consent was unavailable to harms that were more than "transient and trifling". However, it was decided that a defence of consent was available to charges of an s. 47 assault, but not in the case of sado-masochism. This overruled Donovan11, which had ruled that a plea of consent was unavailable to a charge of common assault under s. 47 of the OAPA. In Brown12, sado-masochism was held not to fall within the ambit of the public interest and, accordingly, the defendants were convicted.
The court relied on a notion displayed in A-G's Reference (No. 6 of 1980)13, stating that it was not in the public interest for people to wound one another. There would have to be a good reason, such as a public benefit, for consent to apply in this instance; the court held that sado-masochism did not constitute a good reason because it was dangerous, injurious and unpredictable14. The court also held that whether the actions occurred in private or public was irrelevant, as public interest could override consent in both instances15. R v Wilson16 contrasts with the above cases.
Here, a wife asked her husband to brand her buttocks with a knife because he did not know how to tattoo her. The court acquitted the defendant of an s. 47 charge, stating that branding was no more dangerous than tattooing. An implicit policy agenda appears to figure in the decision following the verdict in R v Emmett17, where the defendant was convicted under s. 47 OAPA after asphyxiating and burning his fianci?? for pleasure. The court ruled this to be distinct from the facts of Wilson18 because the injuries "plainly went far beyond that… in Wilson"19.
It seems that public policy did not demand that the activity in Wilson20 be criminalised; it did in Emmett21. This draws a distinction between the level of consent that applies to married and unmarried couples. Indeed, in Wilson22, Russell LJ stated that sado-masochism would probably be lawful if consenting married couples engaged in it. This is a prejudice that should not be allowed. However, Emmett23 did serve to suppress some of the criticism levelled at Brown24, namely that it contained bias against homosexuals, by convicting the defendant.
Brown25 also established exceptional cases in which consent acts as a defence, despite the infliction of assault occasioning actual bodily harm under s. 47 OAPA and unlawful wounding under s. 20. These include lawful sports and 'rough horseplay'. The latter takes the 'boys will be boys' attitude, allowing injuries caused during 'manly games'. This was evident in the acquittal of the defendant in R v Aitken26, who burnt thirty-five per cent of his friend's body. A possible reason for this is the lack of a sexual element but it is difficult to comprehend how, in an area dominated by public policy, this activity is in the public interest27.
The legality of boxing was also considered; the court held that, applying R v Coney28, boxing was a lawful sport and it would be contrary to the public interest to criminalise it. It seems inconsistent that sado-masochistic acts are criminalised; yet sport potentially leading to death or grievous bodily harm is held to be of public interest. It is evident that public policy is the key influence over the law in the area of consent, as it can override even private actions. There is debate as to whether this is acceptable. The libertarian view of Hart and the authoritarian stance of Devlin provide commentary on this topic.
The former states that society should not interfere with individual liberty by imposing restrictions on behaviour, unless the prevention of harm to others necessitates it. The latter, in contrast, sees suppression of vice as the business of the law29. Authoritarianism was the approach adopted by the majority in Brown30. However, Lord Mustill, favouring libertarianism in his dissent, claimed that this standpoint contravened Article 8 of the European Convention on Human Rights, the right to privacy. Lord Templeman rejected this view, concentrating on protecting society from violence.
The difference of opinion in this sphere seems to undermine the common law31. The narrow majority in Brown32 supports this; it demonstrates uncertainty in the law33. The majority were not willing to create a new defence of consent for the purposes of sado-masochism because there was no good reason34 for doing so35. Templeman also advanced technical reasons for not extending the common law, stating that it would create an anomalous distinction within s. 20 OAPA, whereby consent would be a defence to wounding but not to grievous bodily harm36. He further asserted that, on grounds of policy, the acts were immoral and deserved to be criminalised.