R v Brown: Consensual Harm and the Public Interest
| Author | Marianne Giles |
| Published date | 01 January 1994 |
| Date | 01 January 1994 |
| DOI | http://doi.org/10.1111/j.1468-2230.1994.tb01924.x |
January
19941
R
v
Brown
defamation, false imprisonment, trespass to goods, breach of copyrightg3 and
private nuisance for which exemplary damages are available. It would seem that
they will not now be available for negligence, sexual discrimination, racial
di~crimination,~~ deceit, procuring a breach of contract, secondary picketing,
malicious prosecuti~n~~ and conversion.86 The division between the two groups
of nominate torts is logically unjustifiable. Why should exemplary damages be
available for trespass to goods but not for their conversion; for libel but not for
malicious prosecution; for abuse by the police of their power to arrest but not for
refusing to return confiscated property or malicious process The latter
inconsistency is notably bizarre given the origins of the doctrine as a means of
deterring abuses of state power.
The Court of Appeal has taken a decision with entirely arbitrary results. What is
particularly disappointing is that the arguments against the plaintiffs' succeeding
were
so
clear cut. There was no need to think deeply about the validity of the
remedy within the structure and development
of
the law. Had the issues been more
marginal things may have been different. We must now wait, perhaps indefinitely,
for the House of Lords or ParliamenP to reopen the door which should never have
been closed.
R
v
Brown:
Consensual Harm and the Public Interest
Marianne Giles
*
In the case of
R
v
Brown
and
Others,' the House of Lords was asked to consider
the relevance of consent to the offences of assault occasioning actual bodily harm
and unlawful wounding.2 It was undisputed that consent to the causing of such
harm was sometimes relevant to liability
.3
The main issue was whether consent
to private sado-masochistic activities meant either that the activity was lawful in
the first place or that there was a valid defence.
~
83 In
Secretary
of
State for the Home Department
v
Central Broadcasting
(1993)
The Times,
27
January,
Aldous
J
gave
obiter
support to this view.
84
The Employment Appeal Tribunal has already applied the Court of Appeal's cause
of
action test to
hold that exemplary damages are unavailable for racial discrimination:
Deane
v
London
Borough
of
Ealing
(1993) EAT/33/91 unreported.
There appear
to
be no pre-1964 cases of malicious prosecution which provide clear authority for the
award of exemplary damages. Damages were, however, frequently very high, eg
Selby
&
Firman
v
Maclenmn
(1961)
The Times,
9 May, and
could
be explained on an exemplary basis.
86
The position in respect of conversion is less than clear because it is arguable that some pre-1964 cases
involving
goods
may now best
be
explained as conversion.
See
eg
Brewer
v
Dew
(1
843)
11
M&W 625.
87
Discussed in Clayton and Tomlinson,
Civil Actions Against the Police
(London: Sweet
&
Maxwell,
88
Since this note was written the Law Commission has produced a working paper on exemplary damages
which suggests extensive reforms. See Law Com WP 132 (1993).
*Connecticut, USA.
[I9921 2 All
ER
552 (CA); [I9931
2
All
ER
75
(HL).
s
20
of the Offences Against the Person Act 1861 provides: 'Whosoever shall unlawfully and
maliciously wound or inflict any grievous bodily harm upon any other person, either with
or
without
any weapon
or
instrument, shall be guilty of [an offence], and being convicted thereof shall be liable to
[imprisonment for not more than five years].'
S
47
provides: 'Whosoever shall be convicted upon an
indictment of any assault occasioning actual bodily harm shall be liable
. . .
to
[imprisonment for five
years].
'
3
For
example, in cases of surgical operations. Lord Templeman lists examples
-
see
[
19931 2 All
ER
75.
79.
85
1992) pp 303-306.
1
2
0
The Modem Law Review Limited
1994
101
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