Codification and the Criminal Law (Lecture 3)
I turn as promised to Lord Mustill's judgment in Brown  1 AC 212, at 256-275 where he considers questions of law and policy relating to consent and violence: "... this is a case about the criminal law of violence. In my opinion it should be a case about the criminal law of private sexual relations, if about anything at all". He says that he need not spend time on the details of the bizarre sexual conduct of the co-defendants [sorry !]. The prosecution responded in three ways:
(1) conduct which fell squarely within the legislation governing sexual offences, including keeping a disorderly house and publishing an obscene article, were dealt with as such. Lord Mustill observed that "The pleas of guilty to these count ... might be regarded as dealing quite comprehensively with those aspects of ... sexual conduct which impinged directly on public order...".
(2) private acts, not necessarily the most disgusting, which were prosecuted under the Offences Against the Person Act 1861
(3) private acts, including the most disgusting, which were not prosecuted at all. Lord Mustill observed that " if repugnance to general public sentiments of morality and propriety were the test, one would have expected proceedings in respect of the most disgusting conduct to be prosecuted with the greater vigour. Yet the opposite is the case. Why is this so? Obviously because the prosecuting authorities could find no statutory prohibition apt to cover this conduct" . Indeed, going further, Lord Mustill concludes that the Offences against the Person Act 1861 was chosen as the basis for the relevant counts in the indictment only because no other statutory or common law could be found which could conceivably be brought to bear. Lord Mustill cited the opinion of Wills J. in Reg. v. Clarence (1888) 22 Q.B.D. 23 (husband - wife - ghonnorea) that no assault was disclosed on the facts. These charges under the Offences Against the Person Act, 1861 seemed "so inapposite" to Lord Mustill that they "cannot be upheld unless the language of the statute or the logic of the decided cases positively so demand ...[but] .. the language of the statute is opaque and the cases few and unhelpful".
Lord Mustill says that he was attracted by an analysis on the following lines.
First, construct a continuous spectrum of the infliction of bodily harm, with killing at one end and a trifling touch at the other. Secondly, with the help of reported cases identify the point ("the critical level.") on this spectrum at which consent ordinarily ceases to be an answer to a prosecution for inflicting harm. Lord Mustill quickly saw that "... this analysis is too simple ... [because] ... there are certain types of special situation" which do not fit, e.g. surgical treatment may require a degree of bodily invasion well on the upper side of the critical level will nevertheless be legitimate if performed in accordance with good medical practice and with the consent of the patient (as in the case of the singer, Cher). Conversely, there will be cases in which even a moderate degree of harm cannot be legitimated by consent (e.g. settling a dispute by means of a "square go"). That being so, the third stage is to identify the special situations by reference to the decided cases. Fourthly, decide whether the case in point either falls directly or by close analogy within one of these special situations. If "yes", that determines the outcome irrespective of "the crucial level"; if "no" then "the crucial level" is determinative. With exemplary intellectual honesty, Lord Mustill admits that "for all the intellectual neatness of this method I must recognise that it will not do, for it imposes on the reported cases and on the diversities of human life an order which they do not possess ... all or almost all the instances of the consensual infliction of violence are special. They have been in the past, and will continue to be in the future, the subject of special treatment by the law".
And there are other objections to any general theory of consent and violence. "... it is too simple to speak only of consent, for it comes in various sorts". First, there is an express agreement to the infliction of the injury which was in the event inflicted. Secondly, there is express agreement to the infliction of some harm, but not to that harm which in the event was actually caused. Thirdly, express consent not to the infliction of harm, but to engagement in an activity which creates a risk of the harm which was in the event suffered. Fourthly, express consent not to the infliction of harm, but to engagement in an activity which creates a risk of the some harm but not that which was in the event suffered. To these four, can be added four more where consent is not express but only implied. Lord Mustill defends his multiplication: "These numerous categories are not the fruit of academic over-elaboration, but are a reflection of real life. Yet they are scarcely touched on in the cases, which just do not bear the weight of any general theory of violence and consent. Furthermore, when one examines the situations which are said to found such a theory it is seen that the idea of consent as the foundation of a defence has in many cases been forced on to the theory, whereas in reality the reason why the perpetrator of the harm is not liable is not because of the recipient's consent, but because the perpetrator has acted in a situation where the consent of the recipient forms one, but only one, of the elements which make the act legitimate.
"In these circumstances I must accept that the existing case law does not sustain a step-by-step analysis of the type proposed above. This being so I have considered whether there is some common feature of those cases in which consent has been held ineffectual whose presence or absence will furnish an immediate solution when the court is faced with a new situation. The only touchstone of this kind suggested in argument was the notion of "hostility". Nevertheless I cannot accept it as a statement of the existing law which leads automatically to a conclusion  Hostility cannot, as it seems to me, be a crucial factor which in itself determines guilt or innocence, although its presence or absence may be relevant when the court has to decide as a matter of policy how to react to a new situation."
So Lord Mustill cannot extract any general theory of consent and violence from the case law and he "can see no alternative but to adopt a much narrower and more empirical approach". This narrower and more empirical approach involves a detailed consideration of the following:
Death, Maiming, Prize-fighting, sparring and boxing, Contact sports, Surgery, Lawful correction, Dangerous pastimes, bravado, mortification, Rough horseplay, Prostitution, Fighting.
Lord Mustill prefers "... to address each individual category of consensual violence in the light of the situation as a whole. Sometimes the element of consent will make no difference and sometimes it will make all the difference. Circumstances ... alter cases."
Accordingly, he concluded that the House was free to consider entirely afresh whether the public interest demands the interpretation of the Act of 1861 in such a way as to render criminal under section 47 the acts done by the appellants. The crucial question [is] whether there is good reason to impress upon section 47 an interpretation which penalises the relevant level of harm irrespective of consent, i.e., to recognise sado-masochistic activities as falling into a special category of acts, such as duelling and prize-fighting, which "the law says shall not be done." This is very important, for if the question were differently stated it might well yield a different answer. In particular, if it were to be held that as a matter of law all infliction of bodily harm above the level of common assault is incapable of being legitimated by consent, except in special circumstances, then we would have to consider whether the public interest required the recognition of private sexual activities as being in a specially exempt category. This would be an altogether more difficult question and one which ...[ Lord Mustill] would not be prepared to answer in favour of the appellants, not because I do not have my own opinions upon it but because I regard the task as one which the courts are not suited to perform, and which should  be carried out, if at all, by Parliament after a thorough review of all the medical, social, moral and political issues ..." So Lord Mustill asked himself, not whether as a result of the decision in this appeal, activities such as those of the appellants should cease to be criminal, but rather whether the Act of 1861 (a statute which I venture to repeat once again was clearly intended to penalise conduct of a quite different nature) should in this new situation be interpreted so as to make it criminal. Why should this step be taken?" Lord Mustill rehearses the "harm" arguments, and he concludes that they are not compelling as a reason for stretching sections 47 and 20, whatever the case may be for other criminality ..."
"The ... question is whether these consensual private acts are offences against the existing law of violence. To this question [Lord Mustill] return[s] a negative response". Accordingly, although in the minority Lord Mustill voted to allow these appeals and quash the convictions.
Now, by way of comment, this dissenting judgment might encourage us not to seek any general theory of consent and violence at all but in so far as we persist in seeking some such general theory at the very least we might be satisfied with a theory that does not fit all the cases on the grounds that some cases, such as Brown itself are wrongly decided. Further, this judgment rather suggests that the relationship of consent and violence is in practice very complex, and subtle, and that it cannot readily, if at all, be reduced to a simple general statement. That presents a serious challenge to the codification project in that what we have is a series of special situations - a wilderness wherein there is no discernible theory of consent and violence .... How can we ever produce a code which seeks to preserve the values and policies in the existing law of these values are so contextual or situation specific? The alternative is not to seek to base a new code on a few old cases but to start anew from principle although the difficulty with that is that there is no universally agreed principles.
Leng's 1994 Crim Law Review article is helpful in our continuing to explore whether consent is definitional or defensive in assault ? He points out that the original Bill contemplated definitions, with defences and exceptions to be left to develop at common law which, as we have seen, is the approach favoured by Professor Smith. However, that approach attracted criticisms. First, as we have seen , it may be inconsistent with [some of] the objectives of a code if it is conceived of as resolving uncertainties in the common law; and, secondly, Brown  2 All E R 75 raised further questions in so far as it is or may be taken as authority for the propositions that (a) one cannot consent to even minor harm; and (b) by implication that consent may be no answer to a charge of assault. On this latter Clause 6 would now appear to be reforming rather than restating the common law. But that was not the intention. As Leng sees it "the Law Commission appears to be trapped by the concepts and categories of the past" and was not seeking to reform the greatly, if at all. He criticises the Law Commission's exclusion from debate of three areas of concern in which consent may be a factor in negativing criminal liability: (1) lawful correction; (2) medical treatment; (3) boxing. Leng thinks that a closer study of these three areas was called for and is critical of the Commission's brusque dismissal of the there issues as (1) "having nothing to do with consent"; (2) "consent not the only or the controlling basis" (e.g. cases where patient autonomy trumped by community interest); (3) "pure policy", respectively. But here, at least, the Law Commission could now point to Lord Mustill's judgment in Brown as offering some support. However, if one is to propose a reforming, not a restating, codification, then matters of principle ought to be addressed rather than evaded.
The Law Commission's take on current law is that consent is no defence to either actual bodily harm or grievous bodily harm. The Law Commission's proposed new rule is that: "Consent would be a defence to actual bodily harm but not to grievous bodily harm". Now is this a defence proper or are we looking at a definitional element as in Clause 6 re assault ?
This is relevant to a consideration of mens rea and mistake as to consent. Here, the commission thinks that "the normal rule in relation to criminal defences should apply" and the person who [honestly] believes that the other party is giving relevant consent should have a defence. This treats mistake as a "positive defence" But if, as some writers suggests, lack of consent were treated as an element of the offence (as in Clause 6), the proposed rule would operate in the same way as mistake as to consent negatives mens rea in rape. Now I have already criticised the Morgan decision, and I am unenthusiastic about any extension of its reasoning to exclude liability for causing injury where the only defence is an unreasonable belief in consent. So my own preference is to treat consent as an external matter of defence. This preference is fortified by what I call definitional minimalism ... [extemporise] ****
A question which anyone codifying of the criminal law of England and Wales must face is whether "consent" or its absence is an external matter of defence or an internal matter of definition. What is clear historically is that "injuries short of maims are not criminal at common law unless they are assaults, but an assault is inconsistent with consent" Stephen's Digest of Criminal Law (3rd ed., 1983).
Again there are differences among defences - eg self defence and duress may preclude careful deliberation and one can hardly weigh circumstances on jeweller's scales; and calm reflection cannot realistically be expected in the presence of an uplifted knive. In such circumstances honest belief may be appropriate. But in contrast, non-emergency situations where there is ample opportunity for reflection might quite properly impose a reasonableness requirement. In addition, there are serious questions about the scope of consent (i.e. how far does it extend?)
Leng attributes these shortcomings to the "blind traditionalism" of the Law Commission and he proposes an "interests" analysis, and he identifies two important interests:
(1) avoidance of injury
(2) preservation of autonomy ("the Brown rule is objectionable because it contradicts the interest in personal autonomy" ) For Leng, a better rule would be one which says that acts of violence should be permitted only to the extent that they are manifestly consented to. But the Law Commission 9especially at Cl 6(2) appears to be proceeding on unreal assumptions;
1. We are free to assault or inflict injury on others unless positively aware of lack of consent
2. We are not required to consider consent, nor to seek positive indications before committing an assault or inflicting injury;
3. A conscious, sober individual, who does not manifest consent may nonetheless be presumed to consent to assault or injury.
This is because, on Leng's view, the Law Commission has based its analysis almost exclusively on four cases: Coney (1882) 8 Q B D 534; Donovan  2 K B 498; A-G's Ref (No 6 of 1980)  QB 715; and Brown  2 All E R 75. Perhaps Emmett (Court of Appeal 18th June 1999 but as yet unreported) might now be added to that list.
This way of approaching things leads to some bizarre conclusions e.g. religious flagellation apparently is and should remain lawful but alternative medicine, including acupuncture is not, and should not be lawful, nor is or should be cosmetic or sex change surgery. Generally there have to be a number of exceptions, such as for "recognised and organised sports and games" and most obviously for boxing. Overall the proposals are muddled and inconsistent. Leng, himself, thinks that a different starting point would produce more realistic and coherent results
However, he welcomes, as I do, the main thrust of the proposals that the consensual inflicting of non-serious harm should be decriminalised. But that question is better addressed in terms of the interests involved rather than gleaned from a small number of past cases, some, perhaps all, of which turn upon their own very peculiar facts. Leng rightly observes  "many suspect that the decision in Brown was less influenced by the objective seriousness of the injuries then by the unusual context in which they were inflicted". It seems to me, that on this as on much in the criminal law, Lord Mustill got it exactly right when he said: "... many people if asked whether the appellant's conduct was wrong, would reply, 'Yes, repulsively wrong', I would at the same time assert that this does not in itself mean that the prosecution of the appellant under ss 20 and 47 of the Offences Against the Person Act 1861 is well founded"  2 All ER 75, 116
But leaving these details to one side, it is far from clear what conception of codification informs the Law Commission. Is it (1) mere restatement; (2) restatement and some modest reform; (3) radical reform? Nor is it helpful that some of the proposals on consent contradict those made by the Criminal Law Revision Committee on Sexual Offences which are embodied in the draft criminal code. This is to some extent a function of the nature of the Law Commission and the turnover of commissioners responsible for different areas of the law and, in part a function of a failure to address questions about the precise style, objectives and addressees of the proposed code, in light of the four historical models already identified.
In any event, this discussion raises for consideration the question whether consent in assault and in inflicting injury, either non-serious or serious, is defence only or definitional. So long as there is doubt on this; Professor Smith's suggestion that offences should be exhaustively defined, but defences left open to development by common law may be meaningless simply because the division between defence and definitional elements is not clear cut in a number of common offences including rape, assault and inflicting bodily harm. And even if the distinction between defence and definition is crystal clear, it is clear that judges should never create new offences ? After all, R v R  1 All E R 747 was widely applauded and whilst one can describe that as the removal of a defence it can also be described as the creation of a new offence. And should judges create new defences ? The Court of Appeal though not in Sadie Smith 1982 Crim L R 531 as did the House of Lords more recently in Clegg  1 All E R 334.
In Smith (Sandie)  Crim.L R 531 the appellant, a woman aged 30, was charged with making threats to kill and having an offensive weapon. She alleged that her behaviour was attributable to pre-menstrual syndrome, a condition which could be, and was being, controlled by injections of the hormone progesterone but the dosage of which, at the time the offences were committed, had been reduced by her doctor. The trial judge directed the jury that automatism was not a defence open for them to consider and that there was no defence in law of irresistible impulse. The appellant was convicted and appealed on the ground, inter alia, that the judge's direction was wrong. Held, dismissing the appeal, that automatism as a defence applied within narrow and prescribed limits and was not applicable in this case. There was no authority for a defence of irresistible impulse due to a temporary medical condition. The appellant elected not to plead insanity but invited the court to declare that a special defence was available to a woman suffering from pre-menstrual tension if the jury decided on the evidence that she was morally blameless. However, the criminal law should protect society. If the appellant was entitled to be acquitted she would be discharged with no control through the courts. A trial judge had a wide discretion as to sentence, and this appellant (who had previous convictions for violence, including one of manslaughter) had been dealt with mercifully by being put on probation with provision for medical treatment. Commentary. "This state of affairs is not however one which ought to give rise to any degree of complacency. If a woman suffering from this condition is not blameworthy, she ought not to be convicted, much less rendered vulnerable to the possibility of punishment. Or suppose she "commits", an offence with a fixed penalty, such as murder. How then is her case to be dealt with "mercifully"? [D J B 532]
[I should add a note on Clegg here; until1999 I used to deal with it in other lectures, on excessive force, and simply cross-referred to it]
Since then the Law Commission has had another shot at consultation (in December 1995)... see Shute's article. This is an "impressive document" of 290 pages 4 times as long as its predecessor and it is altogether more radical in its conception of its objectives which are "to identify the principles which ought to underpin the criminal law in this area [Consent and Offences Against the Person] and to recommend appropriate reform if the present state of the law conflicts with these principles"
The Commission is eager to set its reform proposals on a "sound theoretical foundation" and it includes as an appendix a paper by an academic entitled "Consent and the Criminal Law: Philosophical Foundations" This is regrettably the wrong kind of theory ! What is needed is an analysis of the structure of a code, and the nature of defences and definitional elements rather than a generalised essay in jurisprudence discussing paternalism, liberalism and legal moralism, which general notions are altogether too broad to settle disputes about the matters listed in L Mustill's judgment
Despite that appendix (an optional add on it seems for those who wane "philosophy" with their law reform, the Commission does address the troubled issue of Mistaken Belief in Consent. Here the Commission is willing to reconsider the general rule about defences that a defendant should be judges on the facts as he believed (however unreasonably) them to be. Apparently three unnamed academic had responded critically to the conservatism of the 1994 paper. So the commission's new readiness to review Morgan however welcome will be a shock to committed subjectivists. (Satnam & Kewel cf Pigg) Now for my own part I think Morgan should be reconsidered and I accept that such a reconsideration calls for legislative intervention since the courts cannot gainsay the 1976 Sexual Offences (Amendment) Act. However in my view if Morgan is a rapist's charter then Williams is a charter for the paranoid and Beckford a terrorist's charter. If the (subjectivist) reasoning in Morgan is suspect (and it is) it is suspect too in these two cases.
Regrettably, then, and surprisingly, the Commission seems to indicate an adherence to the "normal rule" other than, perhaps in rape. But rape is not unique in this regard ... it is for that reason that I stigmatise the philosophical appendix as the wrong kind of theory ... What is needed is a closer attention to the structure of crimes and a general rather than ad hoc transcendence of subjectivist dogma ...
Despite breaking new (or perhaps old, if it is in effect a return to Turner) ground on consent and rape, the second paper is conservative in that it assumes that consent is a defence in the proper sense of that term . The difficulty is that the Commission has adopted the fragile position that defence and definition are clearly distinguishable and that belief in consent is a defence. But as L Mustill's judgment illustrates, it is much more complex, situational, and circumstantial than that. So we should be trying to develop a reason based account of the offence/defence nexus... (non)consent is essential to rape, but less obviously essential to assault, and even less obviously so the other offences against the person ...
So the impressive document is also a disappointment and there is a further, worrying element... the Commission actually disavows the principled theorising contained in its own appendix ... and favours a "pragmatic" approach . Clearly there is a concern that many Commission proposal have not resulted in legislation and the Commission is now saying that its law reform proposals must follow the "grain of contemporary majority attitudes within Parliament" even if those attitudes "do not fit into any consistent pattern of modern philosophy" Wow ! that really gives it all away ... There was once a very fine Law Commission in Victoria (Oz) It was abolished ... Perhaps the Law Commission should reconsider its role and attend to structure and principle ... in the context of O A P one must examine the individual issues in their context, identify the arguments ... assess their weight and accept that no one overarching philosophical theory - objectivist or subjectivist - will provide all the answers and then construct a coherent (re)statement of the law ... but to second-guess parliament rather than to offer guidance and intellectual challenge calls the very existence of the Law Commission into question ... So muddled thinking appears to be the order of the day.
Add Smith 1998 here: It is now 18 years since the CLRC recommended reform of offences against the person. Only now, writes Smith, is there " a real prospect of legislation. He refers to the Home Office Consultation Paper published earlier in 1998 and the draft Bill attached to it. You can find all that on the internet at http://www.homeoffice.gov.uk.oapdb.htm#1 At p 319 Professor Smith draws our attention to "the new offences" In fact there is an error in Smith's text where he rightly refers to "intentional serious injury" [Cl 1], "reckless serious injury" [Cl 2 and incorrectly refers to "intentional or reckless [serious] injury" which should, of course be "intentional or reckless injury" [Cl 3] but today (or rather tomorrow) I am more interested in what Professor Smith has to say about "Assault".
Home Office Consultation Paper (1998) (on handout)
Clause 4(1) of the Bill provides: "A person is guilty of an offence if -
(a) he intentionally or recklessly applies force to or causes an impact on the body of another,
(b) he intentionally or recklessly causes the other to believe that any such force or impact is imminent.