Consent and Offences against the Person: Law Commission Consultation Paper no. 134
| Published date | 01 November 1994 |
| Author | David Ormerod |
| Date | 01 November 1994 |
| DOI | http://doi.org/10.1111/j.1468-2230.1994.tb01984.x |
REPORTS
Consent and Offences against the Person: Law
Commission Consultation Paper no.
134
David
Ormerod”
In
what circumstances should the acts of the accused which cause injury to the
victim’ be punished when that victim has expressly consented to, or at least
knowingly taken the risk
of,
the injury occurring? The main proposal of the Law
Commission’s Consultation Paper,
Consent and OfSences Against the Persod
is
that:
[TJhe victim can consent to any act likely to cause such injury, but
no
more. that would
exclude any act likely to cause serious injury. It also follows that it should not be possible
to
consent to any act that is intended by its doer to cause serious injury. It should
also
be the
case that the victim can exclude
from
his consent to
likely
injury the
intentional
infliction of
that
or
any injury by the defendant. (para
18.3)
In its Consultation Paper on
Ofences Against the Person and General
principle^,^
in 1992, the Law Commission felt it unnecessary to deal with the
problem of the limits of consent in relation to offences of violence, believing that
the ‘courts should be free to develop new
defences
to criminal liability, either to
recognise the demands of changing circumstances or to piece out unjustified gaps
in
the existing defen~e.’~ Whilst defending the 1992 Paper’ as ‘entirely
complete and coherent in itself (para 1.6) the Commission felt is necessary to
address the question of consent and offences against the person. This review was
prompted by two factors: first, the comments received on the 1992 Paper; and,
secondly, the decision of the House of Lords in
Brown.6
The proposals are,
generally, to be welcomed; not least the implicit overruling of
Brown.
The success
of the Paper lies in the practical workability of the suggestions rather than any
complex analysis of the issue
of
consent itself. However, a major flaw in the Paper
appears to be its superficiality. There are many issues which are not considered,
and of those that are, there is often insufficient depth of discussion.
~ ~
*Lecturer in Law, University of Nottingham.
I
am
grateful
for
comments from Prof. M.J.
Gunn
and my colleagues at Nottingham, especially Dr P.
Bartlett,
on
earlier drafts. The responsibility for errors is mine alone.
Despite the rather unsatisfactory nature of the term ‘victim’, in some settings, it will be used to
describe the person
on
whom the harm is inflicted.
No.
134
(hereafter the
1994
Paper). Paragraphs
in
the text refer
to
this Paper.
Law Commission Consultation Paper No
122,
Legislaring
rhe
Criminal
Code,
Offences
Against
rhe
Person and General
Principles
(hereafter the
1992
Paper).
For
an analysis see Gardner, ‘Reiterating
the Criminal Code’
(1992)
55
MLR
839,
and Clarkson, ‘Violence and the Law Commission’
I19941
Crim. LR
324.
1992
Paper, para
3.4
(emphasis
in
original).
And the subsequent Report No
128 (1993)
(hereafter the
1993
Report).
[1994]
1
A.C.
212.
On
which see: Giles, ‘R v Brown: Consensual Harm and the Public Interest’
(1994)
57
MLR
101;
Mullender, ‘Sado-Masochism, Criminal Law and Adjudicative method: R
v
Brown in the House
of
Lords’
(1993) 44(4)
NILQ
380;
Bibbing
&
Alldridge, ‘Sexual expression, body
alteration and the defence of consent’
(1993) 20(3)
J.
Law and
Soc.
356;
Kell, ‘Social Disutility and
the Law’
(1994) 14
OJLS
121;
Ormerod, ‘Sadomasochism’
[I9941
5
J.
For.
Psych.
123.
0
The
Modern
Law
Review
Limited
1994
(MLR
57:6,
November).
Published
by
Blackwell
Publishers.
108
Cowley
Road,
Oxford
OX4
1JF
and
238
Main
Street,
Cambridge,
MA
02142.
USA.
928
To continue reading
Request your trial