R v Brown [1993]

Case details 

• Full Name of the Case: R v Brown [1993]  
• Citation: [1993] UKHL 19, [1994] 1 AC 212 
• Court: House of Lords 
• Judges: Lord Templeman, Lord Jauncey of Tullichettle, Lord Lowry, Lord Mustill  and Lord Slynn of Hadley 
• Date of judgment: Dec 1993 

Parties Involved 

• Appellants: Brown (Anthony), Lucas, Jaggard, Laskey and Carter • Prosecution: The Crown 

Facts 

The five appellants were convicted on various counts of assault occasioning actual  bodily harm and unlawful wounding under the Offences Against the Person Act 18611 (OAPA), after it was revealed that the injuries had been inflicted during consensual  homosexual sadomasochistic activities, many of which had been filmed and later  obtained by the police; although all of the acts were committed in private with the full  consent of adult participants, evidence showed that one of the appellants had  introduced a participant to these practices when he was only 15 years old, and at trial  the judge ruled that the victims’ consent could not provide a defence in law, leading the  appellants to plead guilty and pursue an appeal, where the Court of Appeal upheld the  convictions but certified a point of law of general public importance for further  consideration. 

Issues Raised 

The central legal issue in this case concerns the interpretation of sections 20 and 47  OAPA2. Section 20 criminalises the act of wounding or inflicting grievous bodily harm,  while section 47 deals with assault occasioning actual bodily harm.  

1. The first question is whether, in prosecutions under these provisions where the  injuries arise in the course of consensual sadomasochistic encounters, the  prosecution must demonstrate that the injured party did not in fact consent to  the acts in question.  
2. The second question regards whether consent can be given lawfully Thto the  intentional infliction of actual bodily harm or grievous bodily harm, where the  sole purpose of the conduct is the pursuit of private sexual gratification. 

Arguments of the Parties 

Appellants: 

• The appellants put forward the contention that consent should operate as a  complete and absolute defence to charges under sections 20 and 47. Their  argument is grounded in the principle of individual autonomy: every person has  the right to decide what may be done with his or her own body, particularly in  intimate or sexual contexts. If two adults willingly agree to engage in certain  practices, even if those practices involve the infliction of injury, the state should  not intervene by criminalising their conduct. 
• At the very least, the appellants argued, the law of consent should only fail when  the conduct in question intends to cause, or in fact does cause, grievous bodily  harm. In such extreme cases, consent could be deemed invalid. However, for  cases involving actual bodily harm or non-serious wounds, the defence of  consent should remain open to defendants. This would allow the law to  distinguish between trivial injuries willingly sustained in private sexual activity  and truly serious harms that may warrant state intervention. 
• The appellants further submitted that the criminal law has no place in regulating  private, victimless conduct between consenting adults. They relied heavily on  Articles 7 and 8 of the European Convention on Human Rights3(ECHR), which protect individuals against retrospective criminalisation and safeguard the right  to respect for private life. In their view, consensual sadomasochistic activity falls  squarely within the sphere of private life and autonomy protected by these  provisions, meaning that state interference would be disproportionate and  unjustifiable. 
• Finally, the appellants contended that the use of the OAPA was inappropriate in  these circumstances. They argued that Parliament had already created specific  sexual-offence statutes which would apply if criminalisation of such conduct  was intended. To prosecute under the general provisions of the 1861 Act  amounted to an abuse of process and represented an overreach of the criminal  law beyond what was contemplated by the legislature.pr 

Prosecution: 

• The Director of Public Prosecutions, representing the state, took the opposite  stance. They relied on long-standing common law principles and statutory  authorities to assert that consent is not, and never has been, a valid defence  where the conduct inflicts more than what the courts describe as a “transient or  trifling4” injury. In other words, once the injury crosses the threshold of  seriousness—such as actual bodily harm or more serious injuries—the defence  of consent is automatically excluded. 
• The DPP further emphasised that sadomasochistic violence is inherently  harmful and carries with it serious medical, psychological, and social risks. Such  risks, they argued, exist regardless of whether the acts occur in private or with  the full agreement of the parties involved. Because of this, the state has a  legitimate and compelling interest in prohibiting such practices through the  criminal law, in order to protect both individuals and society at large. The public  interest, in their view, decisively outweighs any claim to privacy or autonomy in  such cases. 
• The DPP also rejected the appellants’ reliance on human rights provisions. They  argued that the certified question before the court is one of domestic criminal  law, not of European human rights law. While Articles 7 and 8 protect privacy and  prevent retroactive offences, they do not obligate the United Kingdom to tolerate  intentionally harmful conduct. In the view of the prosecution, consensual  sadomasochistic violence falls outside the scope of protected private life  because it involves intentional physical harm, and therefore it can legitimately be  subject to prohibition under national law. 

Judgment  

In delivering its judgment, the House of Lords held by a majority that the defence of  consent cannot be relied upon in prosecutions under sections 47 and 20 of the OAPA where the injuries result from sadomasochistic activities. The court emphasised that  society has a legitimate interest in protecting individuals from physical harm, even in  cases where the injured party voluntarily consented to the acts.  

Lord Templeman, writing in strong terms, declared that society is both entitled and  bound to defend itself against what he described as a “cult of violence5,” stressing that  deriving pleasure from inflicting pain is an “evil thing6” and that cruelty of this nature  cannot be tolerated under the law.  

Similarly, Lord Lowry rejected the notion that the appellants’ activities could be  shielded by consent7, highlighting that sadomasochistic violence, particularly within the  context of homosexual relationships, could not be regarded as contributing to family life  or the welfare of society. In his view, exempting such conduct from criminal liability  would effectively legitimise practices rooted in cruelty, encourage harmful behaviour,  and undermine the very purpose of the statutory provisions designed to prevent and  punish the deliberate infliction of bodily harm.  

Legal Reasoning / Ratio Decidendi 

The ratio decidendi of the case rests on the principle that consent cannot serve as a  valid defence to charges under sections 47 and 20 of the OAPA when the conduct  involves the deliberate infliction of actual or grievous bodily harm, even where such  harm arises in the context of private, consensual sadomasochistic activity.  

The reasoning of the majority was that the statutory provisions were enacted  specifically to criminalise and punish the very type of injury caused in this case, and  allowing consent to operate as a defence would undermine the protective function of  the law. This approach was consistent with earlier authorities such as R v Donovan [1934]8, where it was held that consent is not a defence if the injury caused is more than  “transient or trifling9,” and Attorney-General’s Reference (No. 6 of 1980) [1981]10, which  confirmed that intentional bodily harm cannot be legitimised through mutual  agreement.  

Against this backdrop of authority, the House of Lords in Brown reaffirmed that the  criminal law does not usually interfere with matters of purely private morality; however,  once physical injury surpasses the level of the trivial, it becomes a matter of public  concern and falls squarely within the scope of criminal liability.  

The binding rule established by the case is that in English criminal law, consent does  not extend to the intentional infliction of bodily harm at the level prohibited by sections  20 and 47, thereby limiting the defence of consent to cases involving injuries that are  trivial, fleeting, or otherwise outside the scope of serious violence. 

Dissent 

Lord Mustill’s dissent offered a fundamentally different perspective, shifting the focus  from morality to legality. He argued that the central issue was not whether the  appellants’ behaviour was morally acceptable, but whether it was correctly prosecuted  under the OAPA. For Mustill, the law’s role was not to enforce society’s moral  disapproval of unconventional sexual practices but to determine whether the statutory framework properly captured such conduct. He was careful to emphasise that his  reasoning did not amount to an endorsement of sadomasochism or to a libertarian  rejection of all moral standards; instead, he framed the matter as one of private  morality, to be governed by individual conscience or the ethical standards of religious  and social communities, rather than by the criminal courts. In his view, the state should  interfere with individual autonomy only when it is necessary to protect the wider  interests of society, and the appellants’ consensual activities did not cross that  threshold.  

Conclusion 

In conclusion, R v Brown [1993] remains a landmark decision that illustrates the tension  between individual autonomy and the protective function of the criminal law. The  majority of the House of Lords reinforced the principle that consent cannot legitimise  the deliberate infliction of actual or grievous bodily harm, grounding their reasoning in  long-standing precedents, and affirming that society has an interest in preventing  cruelty even in private settings. The binding rule to emerge is clear: under English law,  the defence of consent is strictly limited, and it cannot be invoked to excuse intentional  infliction of serious injury. Yet the vigorous dissent ensures that Brown continues to  provoke debate, not only in criminal law but across fields such as human rights and  contract law, where the boundaries of personal freedom and state intervention are  constantly tested.

Table of Legislation 

European Convention on Human Rights 

Offences Against the Person Act 1861 

Table of Cases 

Attorney-General’s Reference (No. 6 of 1980) [1981] Q.B. 715 R v Brown [1993] UKHL 19 [1994] 1 AC 212 

R v Donovan [1934] 2 K.B. 498

Reference(S):

1 Offences Against the Person Act 1861, s47 and s20. 

2Ibid.

3 European Convention on Human Rights, Art. 7 and 8.

4 R v Brown (and others) [1993] UKHL 19, [1994] 1 AC 212, 243. 

5 R v Brown (and others) [1993] UKHL 19, [1994] 1 AC 212, 237 (Lord Templeman).

6Ibid.

7 R v Brown (and others) [1993] UKHL 19, [1994] 1 AC 212, 255-256 (Lord Lowry).

8 2 K.B. 498. 

9Ibid 212. 

10 Q.B. 715.