Introduction
The law on consent in relation to non-fatal offences against the person, particularly following the landmark case of R v Brown [1994] 1 AC 212, remains a contentious area within criminal law. In Brown, the House of Lords held that consent is not a valid defence to actual bodily harm (ABH) or more serious injuries unless the activity falls within a recognised exception. Samantha Pegg critiques this framework, arguing that the exceptions to Brown are developed on an “ad hoc basis” with no clear legal principles to explain why certain activities are exempted or to predict future exceptions (Pegg, 2019, p. 582). This essay critically evaluates Pegg’s assertion by focusing on two recognised exceptions—sport and surgery—and assesses whether the current law on consent requires reform. It argues that the lack of coherent principles underpinning these exceptions creates inconsistency and uncertainty, thereby necessitating legislative or judicial reform to ensure clarity and fairness.
The Framework of Consent Post-Brown
In R v Brown, the defendants were convicted of ABH and wounding for engaging in consensual sadomasochistic activities. The House of Lords ruled that public policy considerations override personal autonomy in such cases, limiting the scope of consent as a defence to non-fatal offences unless the harm occurs within a socially accepted context. The exceptions to this general rule include activities such as sport, surgery, tattooing, and horseplay, deemed to serve a public interest or social utility (Herring, 2020). However, as Pegg (2019) contends, the absence of articulated legal principles guiding these exceptions results in a patchwork of judicial decisions that lack predictability. This ad hoc approach undermines the rule of law by failing to provide clear guidance on what constitutes a permissible activity.
Exception 1: Sport as a Public Interest
Sport is one of the most prominent exceptions to the Brown principle, justified on the grounds of public interest and social value. Physical contact sports, such as boxing and rugby, often involve significant risk of ABH or grievous bodily harm (GBH), yet participants’ consent is generally accepted as a defence to criminal liability. For instance, in R v Barnes [2004] EWCA Crim 3246, the Court of Appeal clarified that injuries caused within the rules of a sport do not attract criminal liability unless the conduct exceeds what is reasonably expected in the game. This reflects a pragmatic acknowledgment of sport’s role in promoting health, discipline, and community cohesion (Ormerod and Laird, 2021).
However, the rationale for sport’s exemption remains vague. Pegg (2019) argues that the distinction between acceptable harm in sport and unacceptable harm in other consensual activities, such as sadomasochism, lacks a principled basis. Why, for instance, is a boxer’s consent to potentially life-altering injuries deemed valid, while consensual harm in a private context is criminalised? This inconsistency suggests that the exception for sport may be rooted more in cultural acceptance than in any coherent legal framework. Furthermore, the boundaries of this exception are unclear—amateur or unregulated sports may not always benefit from the same protection, creating uncertainty for participants (Herring, 2020). This lack of clarity supports Pegg’s critique and highlights the need for a more systematic approach to defining exceptions.
Exception 2: Surgery and the Medical Necessity
Surgery represents another well-established exception to the Brown rule, grounded in the concept of medical necessity and public benefit. Surgical procedures inevitably involve harm, often amounting to GBH, yet consent is typically valid provided the operation is performed by a qualified professional for therapeutic purposes (Ashworth and Horder, 2013). The justification here is clear: surgery serves a vital social function by preserving life and health. However, even this exception reveals ambiguities. For example, non-therapeutic surgeries, such as cosmetic procedures, blur the line between medical necessity and personal choice, yet they remain largely exempt from criminal liability.
Pegg’s (2019) contention that exceptions are ad hoc is particularly evident when considering cases at the margins of medical practice. In R v BM [2018] EWCA Crim 560, a body modification practitioner was convicted of GBH for performing a consensual procedure without medical qualifications, despite the client’s informed consent. This decision suggests that the surgical exception is narrowly construed, prioritising professional oversight over individual autonomy. Arguably, this creates an arbitrary distinction between harm caused by a surgeon and harm caused by a layperson, even when both are consensual. Such inconsistencies fuel the argument that the law lacks clear principles to guide the application of exceptions, thereby undermining predictability and fairness.
The Case for Reform
The ad hoc nature of exceptions to Brown, as critiqued by Pegg (2019), poses significant challenges to the coherence of the law on consent. First, the absence of overarching legal principles creates uncertainty for individuals engaging in activities that may cause harm. Without clear guidelines, it is difficult to predict which consensual acts will be deemed lawful and which will attract criminal liability. This unpredictability is particularly problematic in a criminal law context, where the principle of legality demands that individuals have fair notice of prohibited conduct (Ashworth and Horder, 2013).
Second, the current framework appears to prioritise societal norms over individual autonomy. The exceptions for sport and surgery reflect culturally ingrained values rather than a consistent application of legal reasoning. This raises questions of fairness: why should some consensual harms be criminalised while others are excused based on subjective perceptions of social utility? Indeed, Pegg (2019) suggests that the law’s reluctance to recognise new exceptions—such as for consensual body modifications—demonstrates a failure to adapt to evolving societal attitudes.
Reform could take several forms. One option is legislative intervention to codify the exceptions to Brown, providing a clear list of permissible activities alongside criteria for recognising future exceptions. Alternatively, judicial clarification of underlying principles—perhaps through a focus on informed consent and proportionality—could reduce inconsistency. Either approach would address the uncertainty highlighted by Pegg (2019) and ensure that the law better balances individual rights with public policy concerns.
Conclusion
In conclusion, the law on consent in relation to non-fatal offences against the person, as shaped by R v Brown, suffers from a lack of clear legal principles governing its exceptions. As Samantha Pegg (2019) argues, the ad hoc development of exemptions for activities like sport and surgery creates inconsistency and unpredictability, undermining the rule of law. By critically examining these exceptions, this essay has demonstrated that cultural biases and vague justifications often underpin judicial decisions, rather than coherent legal reasoning. Consequently, there is a compelling case for reform, whether through legislative codification or judicial clarification, to ensure that the law on consent is fair, predictable, and reflective of contemporary values. Without such reform, the tension between individual autonomy and public policy will persist, leaving the boundaries of lawful harm uncertain.
References
- Ashworth, A. and Horder, J. (2013) Principles of Criminal Law. 7th edn. Oxford: Oxford University Press.
- Herring, J. (2020) Criminal Law: Text, Cases, and Materials. 9th edn. Oxford: Oxford University Press.
- Ormerod, D. and Laird, K. (2021) Smith, Hogan, and Ormerod’s Criminal Law. 16th edn. Oxford: Oxford University Press.
- Pegg, S. (2019) Not So Clear Cut: The Lawfulness of Body Modifications. Criminal Law Review, 7, pp. 579-590.
(Note: The word count for this essay, including references, is approximately 1,050 words, meeting the required minimum of 1,000 words.)
