Criticisms and Reforms of General Defences

Consent and Self-defence.


V can't consent to death

The defence states that V can consent to D's behaviour and D will not be liable as long as the consent is genuine and V understands the nature and degree of harm being given. However, V cannot consent to death, which seems very inconsistent.

An Assisted Dying Bill was recently introduced by Lord Falconer, which proposed that a person who is teminally ill and expected to die within 6 months should be able to request and lawfully be provided with assistance to end their own life. This must be approved by two doctors and a High Court Judge, and the patient will have 14 days to reconsider before the euthanasia can take place.

The Bill ran out of time before Parliament was dissolved, and was reintroduced in the same year, but 74% of MPs voted to reject it in September 2015, so it does not seem like the law will change any time soon regarding this issue. However, this does not seem to reflect the views of the general public, as a 2010 survey by Dignity in Dying found that 82% of the general public supported euthanasia for the terminally ill.

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Restricting consent on 'public policy' grounds

The courts generally overrule anything where public policy is concerned, presumably because it is in the best interest of the public. The conduct has to be 'socially useful' before V can consent to it, so the courts are willing to interfere if the harm is above the level of an assault or battery.

However, the concept of 'socially useful' has been inconsistently applied, with the courts deciding that D branding his initials into his consenting wife's buttocks was 'socially useful' (R v Wilson), but a group of homosexuals engaging in consensual sadomasochistic activities in private was not (R v Brown).

As a reform, many people believe that as long as the consent is genuine then the courts should not interfere in private matters. Dr Dennis Baker of Kings College London said that "those who regularly inflict ABH on themselves by smoking and drinking excessively are not criminalised".

Marianne Giles evaluated the judgement in R v Brown, saying "this is judicial law making at its worst (...) paternalism triumphs".

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Genuineness of consent inconsistently applied

The law states that V must have a full understanding of all the circumstances and risks in order for consent to be considered 'genuine', however this has been inconsistently applied. The Vs in R v Richardson were not aware that their dentist had been struck off the register, and continued to receive treatment from him, but the courts decided that they had consented. Contrariwise, D in R v Tabassum had never been a qualified medical professional, and so the courts decided the Vs in this instance had not consented.

In their Consultation Paper 134, the Law Commission concluded that V should be able to consent to anything as long as the injury was not intended to be serious, and if the action does not infer that serious injury could occur.

In their 2000 report 'Consent in Sex Offences', the Law Commission proposed a statutory definition of consent, that is "a subsisting, free, and genuine agreement to the act in question, express or implied, and evidenced by words or conduct, whether present or past". This would stop the genuineness of consent being inconsistently applied because it would make the defence more objective and therefore less open to judicial interpretation. However, this report was from 2000 so it is unlikely that such a change would be implemented any time soon.

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All or nothing defence

Self-defence is an 'all or nothing' defence, so if D used reasonable force he is not legally blameworthy, but if the force is excessive he will be guilty. This has caused controversy in a number of cases, most famously those of Lee Clegg and Tony Martin, both of whom were deemed to have used 'excessive force' and were therefore convicted.

The Law Commission has repeatedly expressed support for a partial defence, whereby D who used excessive force in defence of themselves or another would be convicted of a lesser offence, e.g. manslaughter instead of murder. This was proposed in their 2004 report 'Partial Defences to Murder', in which they also recommended changes to loss of control, which were later introduced in the Coroners & Justice Act 2009.

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