Problems result from this. Firstly, Lord Mustill disagrees with Lord Templeman's statement, declaring that the "decks were clear"37 for the court to clear up the issue of consent within s. 47 OAPA38. Criticism has been levelled at the existing statute, branding it "ripe for reform". The question is raised as to why a person should be convicted because of an outdated statute; it is unjust and unprincipled39. Furthermore, the culpability of the defendants was not examined. Instead, the culpability of sado-masochism as a concept seemed to be on trial.
This is dissatisfactory and prejudiced against the defendants because of their sexual preferences40. It seems that, in Brown41, the court never acknowledged the sexual nature of sado-masochism, focusing on the violence of assault, despite the two concepts being entirely separate. Thus, the court has ignored an aspect central to the case and proved itself incompetent. Each member of the court expressed their distaste for the defendants' activities, yet only the dissenting judges decided the case on the law rather than on morality42; this is highly inconsistent.
This is emphasised in the distinction between Brown43 and Wilson44. The cases were decided on policy grounds, the infliction of harm for sexual gratification outside marriage falling outside the ambit of consent, whilst harm for personal adornment within marital bonds was held lawful. These cases were not decided on any clear principle of law, simply the public interest in the eyes of the court. In Wilson45, it was held that the husband's desire to give his wife something she wanted was analogous to tattooing and, therefore, lawful.
However, desire is conjoined to motive, an irrelevance to liability. Instead, culpability should be determined by the intention of the defendant. Therefore, the principles in the cases of Brown46, Wilson47 and Emmett48 were the same. The people involved wanted the acts to happen; the court failed to understand that people would enjoy pain for sexual pleasure. This stresses an inconsistency in the law. A-G's Reference49 supports this statement. The issue of consent in the case was affirmed by reference to R v Savage50.
However, this case failed to address the issue of consent, demonstrating that the common law is founded on unclear principles51. Another contentious issue throughout the common law on consent is where the line should be drawn in terms of the maximum level of harm that people can consent to. The court in Brown52 ruled that assault occasioning actual bodily harm or greater could not be consented to unless there was a good reason for it. However, this is common law authority.
Therefore, if there is no express legislation to criminalise sado-masochistic activities, why should the law be allowed to interfere in private consensual acts? 53 It seems wrong to convict someone for carrying out the 'victim's' wishes; no rights have been infringed and so it is purely an issue for policy to decide upon. It seems that policy provides a useful tool for the court to impose its moral opinions. This conflicts with the judgement in A-G's Reference54, which stated that consent as to the act, and whether the act was one that could be legally consented to, was a matter of law for the court to decide55.
In terms of the rule of law, the common law authority contravenes it. All laws should be open, prospective and clear, meaning that people should be able to determine the law in order to abide by it56. However, the current law is so inconsistent and devoid of principle that it fails to guide people as to what they are permitted to do. The independence of the judiciary must also be guaranteed, and there must be an absence of bias. The conflicting decisions in Brown57, Wilson58 and Emmett59 seem to highlight a distinct bias towards married couples.
The independence of the judiciary is also questionable because they appear to base their decisions on pre-conceived morals, not the law. This indicates that the common law is unclear, devoid of principle and riddled with inconsistency. If people are unaware of their fundamental rights, it restricts their freedom and breaches the basic principles of democracy and the rule of law. This casts illegitimacy over Parliament and the judiciary, as they are responsible for ensuring that we live in a non-discriminatory environment. Thus, "the existing law is… inadequate"60.
A more appropriate standard would be to impose liability only if the force applied is greater than that assumed by the recipient, and this results from an intention to exceed the limits, or recklessness as to either the level of harm, or continuation of the act after consent is withdrawn. This would avoid convicting those who exceed the expected harm by mischance61. The Law Commission has also suggested extending the boundary of consensual activity to anything below 'serious disabling injury', as defined in paragraph 4. 51 of Consultation Paper No. 134.
This would allow more scope for consensual acts to occur, such as sado-masochism, without fear of breaking the law62. In conclusion, analysis of the case law has provided a mechanism for assessing the effectiveness of the common law regarding consent. The respective case law has highlighted great uncertainty, a lack of principle, some prejudice and inconsistency; if the rule of law is to be respected within a democracy, reform must ensue. Putting the issue of consent on a statutory basis would adhere to the rule of law and expectations of a democracy, as people would be aware of their rights.
Although an incremental approach to the law of consent would also provide benefits, namely that the courts could adapt to the changing opinions of society when delivering judgements, a repeat of decisions such as Brown63 cannot be risked. The case law illustrates that consent is a complicated matter. It would seem favourable to have a statutory basis to rely upon, to guide the courts towards clearly defined decisions, which are consistent, lack prejudice and prevent miscarriages of justice.