2017-03-08 10:51

然而,在法律上的假设应该集中在犯罪的本质,或体现,在这种情况下,是针对对他们有伤害的人对他们的意志。按照这个假设是有效的抗辩的同意。布朗辩护律师表示,控方的职责是证明同意缺席。然而,某些情况下,还有,在同意将是不可接受的,如欺诈、胁迫、无行为能力的未成年人,和公共利益,为这类评委建议布朗的情况应考虑。这就要求辩护律师证明犯罪的本质是不受这一豁免类别和作用,不幸的是棕色的人,这是解释由法官咆哮,公共利益肯定是一个因素。此外,在这种情况下,行动开展私人成为视为公众关注,根据哈特与德夫林的论战: 一个既定的道德和良好的政府对社会福利一样必要…对恶的压制与镇压颠覆活动一样是法律的事务“[ 53 ]。 相反,虽然它往往假定同意总是需要行动之前,对另一个人的身体,这并不总是被认为是在公众的最佳利益[ 54 ],有一种情况下,可能导致违反和平[ 55 ]。同意是普通法上的攻击或电池允许辩护,但预兆裁决布朗[ 1993 ] [ 56 ]和[ 1996 ] [ 57 ]威尔逊造成额外的混乱。布朗在上议院强调同意不会接受的实际身体伤害的罪行的法律辩护,伤人或重伤[ 58 ]。然而,在Wilson的情况下,辩护的同意是允许实际的身体伤害。


The assumption in law should, however, focus on the essence, or embodiment of the crime, in this case being against the person who has had injury inflicted on them against their will. In accordance with this assumption is the valid defence of consent. Counsel for the defence in Brown suggested it was the Prosecution’s role to prove consent was absent. There are certain situations, however, in which consent would be unacceptable, e.g. fraud, duress, incapacity of minors, and public interest, into which category the judges suggested the case of Brown should be considered. This had the effect of requiring the Counsel for the Defence to prove that the essence of the crime was not subject to one of these exempt categories and, unfortunately for the appellants in Brown, it was construed by Judge Rant that public interest most definitely was a factor. Moreover, in such cases, actions carried out in private become treated as public concern, according to the Hart-Devlin debate:
“an established morality is as necessary as good government to the welfare of society ... The suppression of vice is as much the law's business as the suppression of subversive activities”[53].
Conversely, whilst it is often assumed that consent is always required prior to actions being perpetrated on another individual’s body, this has not always been considered to be in the best interests of the public[54], one occasion being in situations liable to cause a breach of the peace[55]. Consent is an allowable defence to assault or battery at common law, but the adumbrate rulings in Brown [1993][56] and Wilson [1996][57] resulted in additional confusion. In Brown the House of Lords emphasised that consent would not be accepted as a legal defence for the offences of actual bodily harm, wounding or GBH[58]. However, in the case of Wilson the defence of consent was allowable for actual bodily harm.