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The Criminal Justice System and Health Care$
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Charles A. Erin and Suzanne Ost

Print publication date: 2007

Print ISBN-13: 9780199228294

Published to Oxford Scholarship Online: January 2009

DOI: 10.1093/acprof:oso/9780199228294.001.0001

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The Rightful Domain of the Criminal Law

The Rightful Domain of the Criminal Law

(p.237) 14 The Rightful Domain of the Criminal Law
The Criminal Justice System and Health Care

Charles A. Erin

Oxford University Press

This chapter provides a lay perspective on the law, and constitutes a plea for consistency in the law, or, at the very least, a plea for reasonable explanation and resolution of why the inconsistencies the lay eye perceives are not just that, inconsistencies. Using the case of R v Brown, in which the mutual consent of the actors was not allowed as a valid defence, it is shown that consent is the core issue. It is argued that it is the harm principle that sketches the rightful domain of the criminal law. Applying jurisprudential considerations to Brown, it is shown that the defendants there did not fall foul of the harm principle. The presumption in favour of liberty and autonomy should prevail, and, thus, not that we should see more doctors in the dock, but, rather, that they should be freed of the risk of criminal law penalties.

Keywords:   R v Brown, harm, consent, offence, Offences Against the Person Act 1861, aesthetic surgery

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