R v Brown [1993] 2 All ER 75 Decided in the House of Lords

Case Title and Citation 

R v Brown [1993] 2 All ER 75 Decided in the House of Lords 

Court Name and Bench 

The case was heard in the House of Lords, which was then the highest appellate court in the United Kingdom. A five-judge bench decided the matter, with Lords Templeman, Jauncey and Lowry forming the majority, while Lords Mustill and Slynn delivered dissenting opinions. 

Date of Judgement 

11 March 1993 

Parties Involved 

The Appellant(s) 

The appellants were a group of adult men who engaged in private, consensual sadomasochistic practices. No participant lodged a complaint, and the matter came before the courts only after police discovered videotape recordings of the activities during an unrelated investigation. They were subsequently prosecuted under the Offences Against the Person Act 1861 on charges of assault occasioning actual bodily harm (“ABH”) and unlawful wounding. 

The Respondent(s) 

The respondent was The Crown, represented by the public prosecution authority, which pursued charges under the Offences Against the Person Act 1861 and contended that consent could not operate as a defence to the infliction of such injuries. 

Facts of the Case

A group of adult men engaged in private, consensual sadomasochistic activities that included branding, beatings, and genital torture. None of the participants lodged a complaint, and the matter only came to the attention of the authorities when police discovered videotape recordings of the acts during an unrelated investigation. Following this discovery, the men were prosecuted under the Offences Against the Person Act 1861 on charges of assault occasioning actual bodily harm (“ABH”) under section 47 and unlawful wounding/infliction of grievous bodily harm (“GBH”) under section 20. The central factual tension lay in the apparent conflict between the presence of deliberate harm and the equally clear presence of consent, raising the question of whether such consent could shield the defendants from criminal liability. 

Issues Raised 

The issues in R v Brown may be divided into a central question and several subsidiary concerns.

Main issue 

The principal issue before the House of Lords was whether consent could operate as a valid defence to charges of assault occasioning actual bodily harm (“ABH”), grievous bodily harm (“GBH”), and unlawful wounding under the Offences Against the Person Act 1861. 

Sub-issues 

Flowing from this were several sub-issues: whether the criminal law ought to intervene in private sexual conduct between consenting adults; the proper scope and limits of individual autonomy in circumstances involving self-inflicted harm; and whether public policy considerations justify overriding consent where the injuries sustained are serious. 

Arguments of the Parties 

The Appellant(s) 

The appellants contended that their conduct should not attract criminal liability, as all the acts in question were consensual, private, and involved only adult participants. They argued that consent ought to operate as a valid defence, particularly since no complainant had brought the matter before the courts. Drawing analogies with areas where consent is recognized, such as medical procedures, sporting activities, and tattooing, the appellants maintained that their case did not materially differ. They further submitted that the criminal law should not be used to enforce moral standards in matters of private sexual behaviour where no wider public harm was implicated.

The Respondent(s) 

The Crown argued that consent could not serve as a valid defence to charges of actual bodily harm or unlawful wounding under the Offences Against the Person Act 1861. It maintained that, even where participants voluntarily engage in such acts, the public interest requires the law to restrict potentially harmful practices. The prosecution further distinguished between activities that have recognized social utility, such as sporting contests or medical treatment, and those, like sadomasochistic encounters, which it argued lacked comparable justification and therefore should not be exempted from criminal liability. 

Judgements and Final Decision 

By a narrow majority of three to two, the House of Lords upheld the convictions and ruled that consent could not operate as a defence to charges of actual bodily harm (“ABH”) or unlawful wounding in the circumstances presented. Lords Templeman, Jauncey and Lowry formed the majority, holding that the deliberate infliction of such injuries, even in a consensual setting, was contrary to public policy and should remain within the reach of the criminal law. In dissent, Lords Mustill and Slynn took the opposite view, reasoning that where conduct occurs in private between consenting adults and no wider harm is caused, the law should not interfere, and consent ought to protect the defendants from liability. 

Legal Reasoning / Ratio Decidendi 

The majority reasoning, delivered by Lords Templeman, Jauncey, and Lowry, emphasised that consent could not justify the deliberate infliction of actual bodily harm or wounding, except in specific situations recognised by the law such as surgery, contact sports or body modification. They stressed that private sexual practices resulting in more than a ”transient or trifling” injury could not be shielded from criminal liability, as doing so would undermine the protection of individuals and run contrary to public policy. In that view, the law had a duty to prevent harm, even if voluntarily accepted, and to uphold public morality by setting limits on the kinds of injury that may lawfully be consented to. 

In contrast, the dissenting opinions of Lords Mustill and Slynn focused on principles of personal autonomy and privacy. They argued that the criminal law should not intrude into the private lives of consenting adults where no third party was harmed and no broader societal interest was endangered. For them, the case was less about public morality than about individual liberty, and they cautioned against using the law as a vehicle for moral disapproval. Their reasoning reflected a more liberal approach, one that sought to limit the reach of criminal liability in matters of private sexual conduct. The dissenting opinions can also be read as consistent with the individual responsibility underpinning the neighbour principle in Donoghue v Stevenson, recognising that competent adults should bear the consequences of risks they knowingly and voluntarily assume. 

Conclusion / Observations 

Established Principle 

The ruling in R v Brown confirmed that consent cannot serve as a defence to charges of actual bodily harm or unlawful wounding, save for limited exceptions such as medical treatment, competitive sports, and certain forms of socially accepted body modification. 

Controversy and Criticism 

The decision has remained one of the most controversial in modern English criminal law. The majority’s reasoning has been criticized as paternalistic and moralistic, with commentators such as Matthew Weait highlighting how the judgment reflected prejudice against homosexual men and used criminal law as a vehicle for moral disapproval. 

Impact on Later Cases 

Subsequent rulings have demonstrated the uneasy legacy of Brown. In R v Wilson (1996), the courts distinguished consensual branding between husband and wife, while in R v Emmett (1999) they refused to extend consent to more dangerous sexual practices. These outcomes expose inconsistencies in judicial treatment and reveal the difficulty of reconciling autonomy with public protection. 

Academic Debate 

Scholars remain divided. Jordan Moulds suggests society is “still shackled” by Brown, while Rhiannon Frowde views it as a “painful precedent” showing the gap between evolving social attitudes and a conservative criminal law. This debate underscores the enduring conflict between autonomy and paternalism, as well as the role of law in regulating morality. 

As commentators like Rhiannon Frowde have observed, the judgement and its reliance on “public interest” lacks a clear definition and risks embedding the morality of the majority as a legal standard. 

Moreover, Jordan Moulds argues that since 1993, there has been an increasing legal and social emphasis on bodily autonomy and sexual expression, which definitely poses questions about the continuing legitimacy of the precedent set by Brown.

Additionally, The Trinity College Law Review article highlights that Brown’s test for harm; particularly what counts as “violent” might poorly distinguish between socially accepted harms (like medical interventions or contact sports) and private consensual acts. 

Relevantly, Weait’s feminist and queer commentary suggests that moral disapproval of homosexuality may have shaped the majority’s sense of what is tolerable in society, and that Brown does not just reflect legal doctrine but societal prejudices. 

This controversy has not only shaped domestic criminal law but has also invited scrutiny from a human rights perspective, raising questions about whether the decision sits comfortably with the right to respect for private life under Article 8 of the European Convention on Human Rights. 

This tension has reinforced academic calls, such as those advanced by Dennis Baker, to reconsider the boundaries of consensual harm in modern criminal law. 

Final Reflection 

Ultimately, R v Brown continues to provoke reflection on whether criminal law should intervene in private, consensual activity, or whether the state’s role should be confined to safeguarding against coercion and exploitation. The case thus remains central to discussions of consent, autonomy, and the limits of state power. 

R v Brown endures not only as a precedent on the limits of consent but also as a symbol of the uneasy balance between personal autonomy, public morality, and the role of human rights in shaping the future direction of criminal law. 

Bibliography 

Cases 

R v Brown [1993] 2 All ER 75 (HL) 

R v Wilson [1996] 2 Cr App R 241 (CA) 

R v Emmett [1999] EWCA Crim 1710 

Attorney-General’s Reference (No 6 of 1980) [1981] QB 715 (CA) 

Donoghue v Stevenson [1932] AC 562 (HL) 

Table of Statutes 

Offences Against the Person Act 1861 

European Convention on Human Rights, Article 8

Secondary Sources 

David Arnold, ‘Vagueness, Autonomy, and R v Brown’ (2008) University of South Australia Law Reviewhttps://ojs.unisa.edu.au/index.php/uslr/article/view/1257 accessed 28 September 2025 

Matthew Weait, ‘Judgment of R v Brown [1993] AC 1; with Commentary’ in Rosemary Hunter, Clare McGlynn and Erika Rackley (eds), Feminist Judgments: From Theory to Practice (Hart Publishing 2010) 

Jordan Moulds, ‘Is Society Still Shackled with the Chains of a 1993 England?: Consent, Sado-Masochism and R v Brown’ (2015) UniSA Student Law Reviewhttps://www.researchgate.net/publication/311632560_IS_SOCIETY_STILL_SHACKLE D_WITH_THE_CHAINS_OF_A_1993_ENGLAND_CONSENT_SADO-MASOCHISM_AND _R_V_BROWN accessed 28 September 2025 

Rhiannon Frowde, ‘A Painful Precedent? R v Brown, Criminality and Consent’ (The Mason Institute Blog, 25 November 2021) https://blogs.ed.ac.uk/mason-institute/2021/11/25/a-painful-precedent-r-v-brown-criminality-and -consent-by-rhiannon-frowde/ accessed 28 September 2025 

‘Criminalisation and Consent: Sadomasochism in R v Brown’ (Trinity College Law Review, 22 February 2018) https://trinitycollegelawreview.org/criminalisation-and-consent-sadomasochism-in-r-v-brown/ accessed 28 September 2025 

Smith & Hogan’s Criminal Law (15th edn, Oxford University Press 2022) – (if you cite a textbook overview of consent in criminal law). 

Dennis J Baker, ‘Rethinking Consensual Harm Doing’ (2008) 12(2) University of Western Sydney Law Review 41 https://classic.austlii.edu.au/au/journals/UWSLawRw/2008/2.html accessed 28 September 2025