Despite the characterisation of my previous post (and I will answer the questions that have been asked in due course), I am not satisfied with the outcome of the Ian Tomlinson case. Something wrong happened, we don’t quite know what, and the experience has left a bitter taste in the mouth for many. The family have suffered a practical injustice, and as I said above, are no closer to finding out what happened.
From what I can see, the case raises three points that warrant further research and discussion. I haven’t researched them fully as my LexisNexis and Westlaw accounts have just expired; I’m more interested in raising them to start a discussion.
1. Should Consent be Widened as a Defence?
As I said previously, the likely reason an ABH charge was not pursued is because of ABH’s status as the threshold of consent. After R v Brown, one could only consent to injuries constituting ABH or worse in specific defined circumstances. The obvious examples are sports and surgery.
R v Brown is a controversial case. To very briefly summarise it, a group of adults engaged in extreme consensual sado-masochistic sex. You can read the judgment here. It is controversial because it is criticised as a paternalistic limitation of the freedom of consenting adults. There is also a glaring inconsistency in the idea that responsible S&M sex is criminal, but “rough and ill-disciplined horseplay” is not. What we have also seen is that it creates what might be viewed as an arbitrary scale of injuries to which some might be able to be consented to, but others cannot. More relevant to this case is that where someone has been injured, but not sufficiently on this scale, proceeding under a genuine ABH charge may not be possible because of this policy consideration.
Given that we are moving towards more liberal social attitudes and a greater acceptance of the idea that we are free to do what we like with our bodies, one could argue that this part of the law needs updating. Would we be better by lifting the threshold for consent from ABH to, for example, GBH or wounding (this would still have resulted in convictions in Brown)? Or perhaps we should reverse the current situation, and have a general rule in favour of a defence of consent, with specific exemptions?
2. Poor PR
As I noted in my conclusion, the CPS have not done enough to explain the issues clearly to a lay audience. They have not adequately explained why they have not brought a misconduct charge, nor why the investigation took as long as it did. The decision statement was not one that could walk a layman through each issue step-by-step. It left too much open to speculation. The result is that confidence in the authorities has been shaken more than it ought to be amid accusations of a cover-up.
Even if they had done this though, I’m not sure how much of a difference it would have made. Comments have already suggested that the CPS overstepped the mark, or that in a case perceived as borderline (even if it actually isn’t), it should go to a jury to satisfy the public interest. In theory, this could be possible if we returned to the Grand Jury system (abandoned in 1933). This would, however, be expensive, time-consuming, and an even greater burden on our courts. The system barely exists outside the US now. Suggesting such a large change to the system on the back of one case is excessive, and the merits are unclear. Nonetheless, it remains a possibility that may merit part of a wider discussion.
3. Extending the Six Month Limit?
The biggest point of practical injustice here was that a common assault charge could not be brought because of the statutory six-month limit. This arises because common assault is a “summary offence”, triable only before a magistrate’s court. Under section 127 of the Magistrates’ Courts Act 1980, summary charges have to be brought within six months of the alleged event, unless certain specific exceptions apply. There seems little reason to change this as a general principle. In this specific case, however, it has let an alleged assailant go untried. It presents prosecutors with a gamble: hold out on getting the more serious charge at the risk of losing the whole case, or settle for a lesser charge that may not reflect the seriousness of the crime. It seems that a specific exemption where a delay is caused by investigating a more serious allegation (with reasonable grounds for doing so) might be a solution that doesn’t undermine the purpose of the statute.
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