Authored By: Natalie Searle
University of Lincoln
Case citations as reported: R v Brown [1993] 2 All ER 75, [1994] AC 212
Courts involved: Crown Court, Court of Appeal (Criminal Division), House of Lords
Judgment delivered by the House of Lords (Lord Templeman, Lord Jauncy of Tullichettle, Lord Lowry, Lord Mustill and Lord Slynn of Hadley: March 11th1993.
Parties involved
The appellants were J. Laskey, D. Jaggard and D. Brown and the respondent (or prosecution) was the Crown (Regina).
Facts of the case
The appellants consisted of a group of homosexual men who enthusiastically participated in sexually violent acts, each at giving or receiving pain. They were convicted by the Crown Court, on various counts of actual bodily harm and infliction of wounds on the genital area and other areas of the body, under both sections 20 and 47 of the Offences Against the Person Act 1861. They appealed to the Court of Appeal (Criminal Division), on the grounds that the judge had erred in his rulings and that the victims had given their consent, but this appeal was dismissed. The case was then taken to be appealed to the House of Lords.
Legal Issues:
The main legal issue in this case was whether using a defence of consent was applicable to being extended in the case of bodily harm in the involvement of sado-masochistic encounters and how far public policy influenced and extended into statutory legislation.
Arguments of the Parties:
Key contentions by the Appellant;
The appellants counsel argued that the receivers had consented at every instance to what was inflicted upon them and that no offences had been committed under sections 20 and 47 of the Offences Against the Persons Act 1861. In addition, under Articles 7 and 8 of the European Convention on Human Rights, that the appellants had protection under the right to respect for private life.
Key contentions by the Respondent;
The Respondents had argued that consent was not a valid defence for the acts of sexual violence in a sado-masochistic nature which resulted in actual bodily harm (ABH), and that society needs protection from such acts as these, on the basis of public policy and public interest.
Judgment:
The House of Lords ultimately decided to uphold ruling given by the Court of Appeal (Criminal Division) of the conviction and dismissed the appeal.
As per Lord Lowry, he contributed his opinion in the judgment, in agreement with Lord Templeman and Lord Jauncey of Tullichettle. He stated that sado-masochistic homosexual activity cannot be seen as beneficial to the welfare of society in relation to public interest and family life. And that by relaxing the laws relating to the offences committed, would only encourage physical cruelty in sado-masochistic activities.
As per Lord Jauncey’s opinion: He stated that the line falls properly between assault at common law and offence of assault occasioning actual bodily harm created by section 47 of the Offences Against the Persons Act 1861, that consent of the victim is not eligible to anyone who is charged with the section 47 offence, unless it falls within the likes of organized sport or reasonable surgery. He also referred to obiter dicta comments stated in R v Donovan [1934] 2 K.B. 498 to support his judgment.
As per Lord Mustill’s dissenting opinion; given in the judgment, was that he did not believe the case to be the standards judged under criminal law, in explanation that the prosecution of the appellants for the bodily harm and inflicted wounds is not well-sustained. In addition to that, he infers that it is a matter of private morality. Although he did make it clear that “[he does not] suggest that ethical pronouncements are meaningless, that there is no difference between right and wrong, that sadism is praiseworthy, or that new opinions on sexual morality are necessarily superior to the old”.
Ratio Decidendi (Legal rule)
As per Lord Templeman, Lord Jauncey and Lord Lowry, they did not believe that Articles 7 and 8 of the European Convention on Human rights were applicable to the positions of this case. They did not consider that “Article 8 of the ECHR invalidates domestic law on the position of violence which is intentionally [bodily harm]”. The case of Attorney-General’s Reference (No.6 of 1980) [1981] Q.B. 715 was referred to in the judgment by their lord ships in relation public policy and interest. On the basis of whether, it is within the publics’ interest to require the courts to intervene sexually violent activities like these “for no good reason”, even if there was an absence of consent. Lord Templeman used the “central proposition” found in R v Donovan [1934] All ER Rep 207 which he found consistent with the court’s decision in Attorney- General’s Reference (No.6 of 1980) [1981] Q.B. 715, and the definition of bodily harm which “includes any hurt or injury calculated to interfere with health or comfort.” (R v Donovan [1934] 2 KB 498 at 509, Swift J). In the case R v Coney [1882] 8 QBD 534, Templeman referred to it, in support of interpreting the statute of Offences Against the Persons Act 1861, in which the legal authority which Templeman referenced, was that the lack of consent is substantial to common assault. Aiding in his reasoning, Templeman also referred to the definitions of ‘grievous bodily harm’ in DPP v Smith [1961] A.C. 290 and the definition of ‘unlawfully’ under section 20 of the Offences Against the Persons Act 1861 which meant that the accused did not have the excuse to use self- defence.
Lord Slynn of Hadley’s dissenting opinion, which was in agreement with Lord Mustill: In accordance with his opinion that there was an exception to the general rule of common law, that any physical touching could constitute as battery, where the person who was touched expressly consented. He referred to Collins v. Wilcock [1984] 1 WLR. 1173, 1177 in his reasoning, “generally speaking consent is a defence” but the word “generally” could be interpreted in relation to consent and defences”. Furthermore, in his reasoning he suggested that the cases referred to in the judgment were not suitable for directions of the judgment, all of which the cases he referred to were R v Coney (1882), R v Donovan (1934) and Attorney General’s Reference (No.6 1980) [1981]. He stated that adults can consent to acts done in private.
Obiter Dicta
In stating the circumstances of where violence resulting in injury of persons is non-punishable under criminal law, Lord Templeman made a comment where he mentioned ritual circumcision as a lawful injury, when listing other ways of sustaining lawful injury including tattooing, ear piercing and violent sports [and surgery]. This comment can be seen as obiter dicta
Conclusion
Overall, the decision of the House of Lords in R v Brown (1993) had a profound effect on the laws surrounding consent to harm in relation to sadomasochistic acts. It is a pivotal case in English criminal law. It takes into account the consideration of public policy and interest in the requirement that society should be protected from criminal actions, even where consent is concerned. And even though consent is usually a valid form of defence, this case restricts the circumstances of which consent is justifiable. With this case setting a significant legal precedence in the law on sexual harm and consent, there are a number of cases, of which referred to, and cited R v Brown [1994] AC 212 in their arguments. For instance, in the case of R v Emmett [1999] EWCA Crim 1710, the court reinforced the decision by the House of Lords in R v Brown [1994], that consent is no defence to assault occasioning bodily harm where the harm is significant. The facts of this case stand that the appellant and his wife used partial asphyxiation with a plastic bag and burned lighter fuel. Injuries of conjunctival haemorrhages and burning were sustained which required medial attention. It was found that these injuries occasioned actual bodily harm in comparison to the findings in R v Wilson [1996] 2 Cr App R 241 of which the court distinguished between R v Brown and R v Wilson, but it was found there was no comparison as there was no intention to be aggressive in the case of Wilson, and the convictions were upheld. This demonstrates that the legal principle that was established in R v Brown [1994] AC 212, still upholds the laws in relation to that of consent to harm in sexually violent activities, as well as the significance that it holds for society’s interest and intervention against such acts at the time of the case. Although significant as a landmark case, it has come under a fair amount of criticism for the approach taken to the case.
Cases cited:
Attorney-General’s Reference (No.6 of 1980) [1981] Q.B. 715
Collins v Wilcock [1984] 1 WLR. 1173, 1177
R v Brown [1994] AC 212, 1993 2 All ER 75
R v Coney [1882] 8 QBD 534
R v Donovan [1934] 2 KB 498
R v Emmett [1999] EWCA Crim 1710
R v Wilson [1996] 2 Cr App R 241
