English law does not recognise the defence of obedience to superior orders. Recent years have seen voices calling for reconsideration of the law and for the adoption of a defence in some form. One of the reasons for this stance is the fact that the defence is recognised in the Rome Statute constituting the International Criminal Court (ICC). This article examines whether the law should be changed and the defence of superior orders introduced into English law. As the title suggests, the article concludes that such a change is not desirable and that the current position of the law is correct. Over the years very little has been written on the defence of superior orders in the domestic context but, not surprisingly, the subject has been widely discussed in international law in the context of the laws of war. Thus, the article starts (Section I) with the debate in international law, presenting the two main approaches regarding the recognition of a defence of obedience to superior orders: the absolute liability approach adopted by the Nuremberg Tribunal and other ad hoc tribunals over the years, and the conditional liability approach adopted by the ICC in the Rome Statute. Section II goes on to examine the possible rationales that underlie each position. It argues that the defence can be justified either as a recognition of the dilemma faced by the soldier who is required to obey the order as per national law, and to disobey it as per international law, or as a claim of mistake of law or of fact. The question then is whether these rationales can be transformed into domestic English law and support a claim for an adoption of a qualified defence of superior orders. Section III argues that two differences between the stance of English law and international law need to be accounted for: the first is that though the soldier’s dilemma is still applicable, it exists in a somewhat different structure which results in a limitation of the dilemma to borderline cases only, and the second is the fact that English law does not recognise the defence of mistake of law. As a consequence, it is submitted that the defence of superior orders should not be recognised in English law. Nevertheless, a claim of obedience to superior orders often obscures the real defence which should be advanced, and while superior orders should not be recognised as an independent defence the facts may constitute a basis for a defence of duress or of a mistaken case of private defence, both of which are recognised in English law.

Does a person who is voluntarily drunk remain capable of giving valid consent to sex? The Court of Appeal in Bree held that ‘a drunken consent is still (valid) consent’, though it further recognises that the capacity to consent may evaporate well before a complainant becomes unconscious. This decision is a move in the right direction, yet this article argues that it has not gone far enough, and that s. 74 of the Sexual Offences Act 2003 which governs these scenarios allows—and even requires—a more drastic interpretation: a drunken consent is not consent when the person is very drunk. Based on a distinction between factual and legal consent, the article starts by setting up the legal framework as set out in s. 74, and developed in Bree and H. It then goes on to criticise the current case law and its interpretation of s. 74 for not being restrictive enough, by examining two possible theoretical rationales, mentioned in the judgments. The first, which is based on an analogy with the law relating to intoxicated offenders, is criticised on the grounds of differences between consent and intent. The second, which is based on the general argument that this position recognises the positive aspect of sexual autonomy, is criticised for its failure to distinguish between claims of normative facts and claims of public policy and for giving too much weight to the latter considerations. From the discussion an alternative, more restrictive position, emerges in line with s. 74 of the 2003 Act, according to which a drunken consent is not consent. This position can be adopted by judges, through the provision of better guidance to juries, but failing that a reform of the law might be needed.

(in Hebrew)