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Table of Contents

  1. Acknowledgments
  2. Chapter one: Defining the constitution
  3. Chapter two: Parliamentary sovereignty
  4. Chapter three: The rule of law and the separation of powers
  5. Chapter four: The royal prerogative
  6. Chapter five: The House of Commons
  7. Chapter six: The House of Lords
  8. Chapter seven: The electoral system
  9. Chapter eight: Parliamentary privilege
  10. Chapter nine: Constitutional conventions
  11. Chapter ten: Local government
  12. Chapter eleven: Parliamentary sovereignty within the European Union
  13. Chapter twelve: The governance of Scotland and Wales
  14. Chapter thirteen: Substantive grounds of judicial review 1: illegality, irrationality and proportionality
  15. Chapter fourteen: Procedural grounds of judicial review
  16. Chapter fifteen: Challenging governmental decisions: the process
  17. Chapter sixteen: Locus standi
  18. Chapter seventeen: Human rights I: Traditional perspectives
    1. Brutus v Cozens [1972] 2 All ER 1297
    2. Malone v Commissioner of Police of the Metropolis (No 2) [1979] 2 All ER 620
    3. R v Brown and other appeals [1993] 2 All ER 75
    4. R v Lemon; R v Gay News Ltd [1979] 1 All ER 898
    5. Attorney General v Times Newspapers Ltd [1973] 3 All ER 54
    6. Blackshaw v Lord and another [1983] 2 All ER 311
    7. Malone v Metropolitan Police Commissioner [1979] 2 All ER 620
    8. R v Home Secretary, ex parte Brind [1991] 1 All ER 720; [1991] 1 AC 696
  19. Chapter eighteen: Human rights II: Emergent principles
  20. Chapter nineteen: Human rights III: New substantive grounds of review
  21. Chapter twenty: Human rights IV: The Human Rights Act 1998
  22. Chapter twenty-one: Human rights V: The impact of The Human Rights Act 1998
  23. Chapter twenty-two: Human rights VI: Governmental powers of arrest and detention
  24. Chapter twenty-three: Leaving the European Union

R v Brown and other appeals [1993] 2 All ER 75

LORD TEMPLEMAN. My Lords, the appellants were convicted of assaults occasioning actual bodily harm contrary to s 47 of the Offences against the Person Act 1861. Three of the appellants were also convicted of wounding contrary to s 20 of the 1861 Act. The incidents which led to each conviction occurred in the course of consensual sado-masochistic homosexual encounters. The Court of Appeal upheld the convictions and certified the following point of law of general public importance:

Where A wounds or assaults B occasioning him actual bodily harm in the course of a sadomasochistic encounter, does the prosecution have to prove lack of consent on the part of B before they can establish A's guilt under section 20 and section 47 of the 1861, Offences Against the Person Act?

....There are now three types of assault in ascending order of Gravity: first, common assault, secondly, assault which occasions actual bodily harm and, thirdly, assault which inflicts grievous bodily harm.

By s.39 of the Criminal Justice Act 1988:

Common assault and battery shall be summary offences and a person guilty of either of them shall be liable to a fine to imprisonment for a term not exceeding six months, or to both.

By s 47 of the 1861 Act, as amended:

Whosoever shall be convicted upon an indictment of any assault occasioning actual bodily harm shall be liable [to a maximum penalty of five years' imprisonment].

In R v Donovan [1934] 2 KB 498 at 509, [1934] All ER Rep 207 at 212 Swift J, delivering the judgment of the Court of Criminal Appeal, said:

"bodily harm has its ordinary meaning and includes any hurt or injury calculated to interfere with the health or comfort of the prosecutor. Such hurt or injury need not be permanent, but must, no doubt, be more than merely transient and trifling".

In the present case each appellant pleaded guilty to an offence under this section when the trial judge ruled that consent of the victim was no defence.

By s.20 of the 1861 Act, as amended:

Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either with or without any weapon or instrument, shall be guilty of [an offence] and shall be liable [to a maximum penalty of five years imprisonment].

To constitute a wound for the purposes of the section the whole skin must be broken and not merely the outer layer called the epidermis or the cuticle: see J J C (a minor) v Eisenhower [1983] 3 All ER 230.

'Grievous bodily harm' means simply bodily harm that is really serious and it has been said that it is undesirable to attempt a further definition: see DPP v Smith [1960] 3 All ER 161, [1961] AC 290....

In the present case each of the appellants intentionally inflicted violence upon another (to whom I shall refer as 'the victim') with the consent of the victim and thereby occasioned actual bodily harm or in some cases wounding or grievous bodily harm. Each appellant was therefore guilty of an offence under s.47 or s.20 of the 1861 Act unless the consent of the victim was effective to prevent the commission of the offence or effective to constitute a defence to the charge.

In some circumstances violence is not punishable under the criminal law. When no actual bodily harm is caused, the consent of the person affected precludes him from complaining. There can be no conviction for the summary offence of common assault if the victim has consented to the assault. Even when violence is intentionally inflicted and results in actual bodily harm, wounding or serious bodily harm the accused is entitled to be acquitted if the injury was a foreseeable incident of a lawful activity in which the person injured was participating. Surgery involves intentional violence resulting in actual or sometimes serious bodily harm but surgery is a lawful activity. Other activities carried on with consent by or on behalf of the injured person have been accepted as lawful notwithstanding that they involve actual bodily harm or may cause serious bodily harm. Ritual circumcision, tattooing, ear-piercing and violent sports including boxing are lawful activities.....

In earlier days some other forms of violence were lawful and when they ceased to be lawful they were tolerated until well into the nineteenth century......

In R v Coney (1882) 8 QBD 534 the court held that a prize-fight in public was unlawful. Cave J said (at 539):

"The true view is, I think, that a blow struck in anger, or which is likely or is intended to do corporal hurt, is an assault, but that a blow struck in sport, and not likely, nor intended to cause bodily harm, is not an assault, and that an assault being a breach of the peace and unlawful, the consent of the person struck is immaterial".

The conclusion is that, a prize-fight being unlawful, actual bodily harm or serious bodily harm inflicted in the course of a prize-fight is unlawful notwithstanding the consent of the protagonists.

In R v Donovan [1934] 2 KB 498, [1934] All ER Rep 207 the appellant in private beat a girl of 17 for purposes of sexual gratification, it was said with her consent. Swift J said ([1934] 2 KB 498 at 507, [1934] All ER Rep 207 at 210):

"it is an unlawful act to beat another person with such a degree of violence that the infliction of bodily harm is a probable consequence, and when such an act is proved, consent is immaterial".

....The appellants and their victims in the present case were engaged in consensual homosexual activities. The attitude of the public towards homosexual practices changed in the second half of this century. Change in public attitudes led to a change in the law.

The Report of the Committee on Homosexual Offences and Prostitution (the Wolfenden Report) (Cmnd 247 (1957)) ch 2 para 13, declared that the function of the criminal law in relation to homosexual behaviour -

"is to preserve public order and decency, to protect the citizen from what is offensive or injurious, and to provide sufficient safeguards against exploitation and corruption of others, particularly those who are especially vulnerable because they are young, weak in body or mind, inexperienced, or in a state of special, physical, official or economic dependence".

In response to the Wolfenden Report and consistently with its recommendations, Parliament enacted s 1 of the Sexual Offences Act 1967, which provided, inter alia, as follows:

(1) Notwithstanding any statutory or common law provision a homosexual act in private shall not be an offence provided that the parties consent thereto and have attained the age of twenty-one years.

(2) An act which would otherwise be treated for the purposes of this Act as being done in private shall not be so treated if done((a) when more than two persons take part or are present

(6) It is hereby declared that where in any proceedings it is charged that a homosexual act is an offence the prosecutor shall have the burden of proving that the act was done otherwise than in private or otherwise than with the consent of the parties or that any of the parties had not attained the age of twenty-one years.

(7) For the purposes of this section a man shall be treated as doing a homosexual act if, and only if, he commits buggery with another man or commits an act of gross indecency with another man or is a party to the commission by a man of such an act.

The offence of gross indecency was created by s 13 of the Sexual Offences Act 1956 in the following terms:

It is an offence for a man to commit an act of gross indecency with another man, whether in public or private, or to be a party to the commission by a man of an act of gross indecency with another man, or to procure the commission by a man of an act of gross indecency with another man.

By the 1967 Act Parliament recognised and accepted the practice of homosexuality. Subject to exceptions not here relevant, sexual activities conducted in private between not more than two consenting adults of the same sex or different sexes are now lawful. Homosexual activities performed in circumstances which do not fall within s 1(1) of the 1967 Act remain unlawful. Subject to the respect for private life embodied in the 1967 Act, Parliament has retained criminal sanctions against the practice, dissemination and encouragement of homosexual activities.

My Lords, the authorities dealing with the intentional infliction of bodily harm do not establish that consent is a defence to a charge under the 1861 Act. They establish that the courts have accepted that consent is a defence to the infliction of bodily harm in the course of some lawful activities. The question is whether the defence should be extended to the infliction of bodily harm in the course of sadomasochistic encounters...

The question whether the defence of consent should be extended to the consequences of sado-masochistic encounters can only be decided by consideration of policy and public interest. Parliament can call on the advice of doctors, psychiatrists, criminologists, sociologists and other experts and can also sound and take into account public opinion. But the question must at this stage be decided by this House in its judicial capacity in order to determine whether the convictions of the appellants should be upheld or quashed....

Counsel for the appellants argued that consent should provide a defence to charges under both ss 20 and 47 because, it was said, every person has a right to deal with his body as he pleases. I do not consider that this slogan provides a sufficient guide to the policy decision which must now be made. It is an offence for a person to abuse his own body and mind by taking drugs. Although the law is often broken, the criminal law restrains a practice which is regarded as dangerous and injurious to individuals and which if allowed and extended is harmful to society generally. In any event the appellants in this case did not mutilate their own bodies. They inflicted bodily harm on willing victims. Suicide is no longer an offence but a person who assists another to commit suicide is guilty of murder or manslaughter.

The assertion was made on behalf of the appellants that the sexual appetites of sadists and masochists can only be satisfied by the infliction of bodily harm and that the law should not punish the consensual achievement of sexual satisfaction. There was no evidence to support the assertion that sado-masochist activities are essential to the happiness of the appellants or any other participants but the argument would be acceptable if sado-masochism were only concerned with sex as the appellants contend. In my opinion sado-masochism is not only concerned with sex. Sado-masochism is also concerned with violence. The evidence discloses that the practices of the appellants were unpredictably dangerous and degrading to body and mind and were developed with increasing barbarity and taught to persons whose consents were dubious or worthless.

A sadist draws pleasure from inflicting or watching cruelty. A masochist derives pleasure from his own pain or humiliation. The appellants are middle-aged men. The victims were youths some of whom were introduced to sadomasochism before they attained the age of 21. In his judgment in the Court of Appeal, Lord Lane CJ said that two members of the group of which the appellants formed part, namely one Cadman and the appellant Laskey

"were responsible in part for the corruption of a youth 'K'. It is some comfort at least to be told, as we were, that K has now it seems settled into a normal heterosexual relationship. Cadman had befriended K when the boy was 15 years old. He met him in a cafeteria and, so he says, found out that the boy was interested in homosexual activities. He introduced and encouraged K in bondage affairs. He was interested in viewing and recording on video tape K and other teenage boys in homosexual scenes. One cannot overlook the danger that the gravity of the assaults and injuries in this type of case may escalate to even more unacceptable heights. (See 94 Cr App R 302 at 310.)

The evidence disclosed that drink and drugs were employed to obtain consent and increase enthusiasm. The victim was usually manacled so that the sadist could enjoy the thrill of power and the victim could enjoy the thrill of helplessness. The victim had no control over the harm which the sadist, also stimulated by drink and drugs, might inflict. In one case a victim was branded twice on the thigh and there was some doubt as to whether he consented to or protested against the second branding. The dangers involved in administering violence must have been appreciated by the appellants because, so it was said by their counsel, each victim was given a code word which he could pronounce when excessive harm or pain was caused. The efficiency of this precaution, when taken, depends on the circumstances and on the personalities involved. No one can feel the pain of another. The charges against the appellants were based on genital torture and violence to the buttocks, anus, penis, testicles and nipples. The victims were degraded and humiliated, sometimes beaten, sometimes wounded with instruments and sometimes branded. Bloodletting and the smearing of human blood produced excitement. There were obvious dangers of serious personal injury and blood infection. Prosecuting counsel informed the trial judge against the protests of defence counsel that, although the appellants had not contracted AIDS, two members of the group had died from AIDS and one other had contracted an HIV infection although not necessarily from the practices of the group. Some activities involved excrement. The assertion that the instruments employed by the sadists were clean and sterilised could not have removed the danger of infection, and the assertion that care was taken demonstrates the possibility of infection. Cruelty to human beings was on occasions supplemented by cruelty to animals in the form of bestiality. It is fortunate that there were no permanent injuries to a victim though no one knows the extent of harm inflicted in other cases. It is not surprising that a victim does not complain to the police when the complaint would involve him in giving details of acts in which he participated. Doctors of course are subject to a code of confidentiality.

In principle there is a difference between violence which is incidental and violence which is inflicted for the indulgence of cruelty. The violence of sadomasochistic encounters involves the indulgence of cruelty by sadists and the degradation of victims. Such violence is injurious to the participants and unpredictably dangerous. I am not prepared to invent a defence of consent for sado-masochistic encounters which breed and glorify cruelty and result in offences under ss 47 and 20 of the 1861 Act.....

LORD MUSTILL. My Lords, this is a case about the criminal law of violence. In my opinion it should be a case about the criminal law of private sexual relations, if about anything at all. Right or wrong, the point is easily made.....

The conduct of the appellants and of other co-accused was treated by the prosecuting authorities in three ways. First, there were those acts which fell squarely within the legislation governing sexual offences. These are easily overlooked, because attention has properly been concentrated on the charges which remain in dispute, but for a proper understanding of the case it is essential to keep them in view. Thus, four of the men pleaded guilty either as principals or as aiders and abettors to the charges of keeping a disorderly house. It is worth setting out, with abbreviations, the particulars of a typical charge:

[GWC] on divers days between the 1st day of January 1979 and the 5th day of November 1987 at Bolton, kept a disorderly house to which numerous persons resorted in order to take part in, and who did take part in, acts of sadistic and masochistic violence, and in accompanying acts of a lewd, immoral and unnatural kind. [IW, PJG, Colin Laskey and PJK] at the same times and at the same place did aid, abet, counsel and procure [GWC] to commit the said offence.

Laskey also pleaded guilty to two counts of publishing an obscene article. The articles in question were video tapes of the activities which formed the subject of some of the counts laid under the 1861 Act. The pleas of guilty to these counts, which might be regarded as dealing quite comprehensively with those aspects of Laskey's sexual conduct which impinged directly on public order, attracted sentences of four years reduced on appeal to 18 months imprisonment and three months imprisonment respectively. Other persons, not before the House, were dealt with in a similar way.

The two remaining categories of conduct comprised private acts. Some were prosecuted and are now before the House. Others, which I have mentioned, were not. If repugnance to general public sentiments of morality and propriety were the test, one would have expected proceedings in respect of the most disgusting conduct to be prosecuted with the greater vigour. Yet the opposite is the case. Why is this so? Obviously because the prosecuting authorities could find no statutory prohibition apt to cover this conduct. Whereas the sexual conduct which underlies the present appeals, although less extreme, could at least arguably be brought within ss 20 and 47 of the 1861 Act because it involved the breaking of skin and the infliction of more than trifling hurt.

I must confess that this distribution of the charges against the appellants at once sounds a note of warning. It suggests that the involvement of the 1861 Act was adventitious. This impression is reinforced when one considers the title of the statute under which the appellants are charged, 'Offences against the Person'. Conduct infringing ss 18, 20 and 47 of the 1861 Act comes before the Crown Court every day. Typically it involves brutality, aggression and violence, of a kind far removed from the appellants' behaviour which, however worthy of censure, involved no animosity, no aggression, no personal rancour on the part of the person inflicting the hurt towards the recipient and no protest by the recipient. In fact, quite the reverse. Of course we must give effect to the statute if its words capture what the appellants have done, but in deciding whether this is really so it is in my opinion legitimate to assume that the choice of the 1861 Act as the basis for the relevant counts in the indictment was made only because no other statute was found which could conceivably be brought to bear upon them......

I therefore approach the appeal on the basis that the convictions on charges which seem to me so inapposite cannot be upheld unless the language of the statute or the logic of the decided cases positively so demand. Unfortunately, as the able arguments which we have heard so clearly demonstrate, the language of the statute is opaque, and the cases few and unhelpful.....

IV. PUBLIC POLICY

The purpose of this long discussion has been to suggest that the decks are clear for the House to tackle completely anew the question whether the public interest requires s 47 of the 1861 Act to be interpreted as penalising an infliction of harm which is at the level of actual bodily harm, but not grievous bodily harm; which is inflicted in private (by which I mean that it is exposed to the view only of those who have chosen to view it); which takes place not only with the consent of the recipient but with his willing and glad co-operation; which is inflicted for the gratification of sexual desire, and not in a spirit of animosity or rage; and which is not engaged in for profit.

My Lords, I have stated the issue in these terms to stress two considerations of cardinal importance. Lawyers will need no reminding of the first, but since this prosecution has been widely noticed it must be emphasised that the issue before the House is not whether the appellants' conduct is morally right, but whether it is properly charged under the 1861 Act. When proposing that the conduct is not rightly so charged I do not invite your Lordships' House to indorse it as morally acceptable. Nor do I pronounce in favour of a libertarian doctrine specifically related to sexual matters. Nor in the least do I 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, or anything else of the same kind. What I do say is that these are questions of private morality; that the standards by which they fall to be judged are not those of the criminal law; and that if these standards are to be upheld the individual must enforce them upon himself according to his own moral standards, or have them enforced against him by moral pressures exerted by whatever religious or other community to whose ethical ideals he responds. The point from which I invite your Lordships to depart is simply this, that the state should interfere with the rights of an individual to live his or her life as he or she may choose no more than is necessary to ensure a proper balance between the special interests of the individual and the general interests of the individuals who together comprise the populace at large. Thus, whilst acknowledging that very many people, if asked whether the appellants' conduct was wrong, would reply 'Yes, repulsively wrong', I would at the same time assert that this does not in itself mean that the prosecution of the appellants under ss 20 and 47 of the Offences against the Person Act 1861 is well founded.

This point leads directly to the second. As I have ventured to formulate the crucial question, it asks whether there is good reason to impress upon s 47 an interpretation which penalises the relevant level of harm irrespective of consent: ie to recognise sado-masochistic activities as falling into a special category of acts, such as duelling and prize-fighting, which 'the law says shall not be done'. This is very important, for if the question were differently stated it might well yield a different answer. In particular, if it were to be held that as a matter of law all infliction of bodily harm above the level of common assault is incapable of being legitimated by consent, except in special circumstances, then we would have to consider whether the public interest required the recognition of private sexual activities as being in a specially exempt category. This would be an altogether more difficult question and one which I would not be prepared to answer in favour of the appellants, not because I do not have my own opinions upon it but because I regard the task as one which the courts are not suited to perform, and which should be carried out, if at all, by Parliament after a thorough review of all the medical, social, moral and political issues, such as was performed by the Wolfenden Committee.... Thus, if I had begun from the same point of departure as my noble and learned friend Lord Jauncey of Tullichettle I would have arrived at a similar conclusion; but differing from him on the present state of the law, I venture to differ.

Let it be assumed however that we should embark upon this question. I ask myself, not whether as a result of the decision in this appeal, activities such as those of the appellants should cease to be criminal, but rather whether the 1861 Act (a statute which I venture to repeat once again was clearly intended to penalise conduct of a quite different nature) should in this new situation be interpreted so as to make it criminal. Why should this step be taken? Leaving aside repugnance and moral objection, both of which are entirely natural but neither of which are in my opinion grounds upon which the court could properly create a new crime, I can visualise only the following reasons.

(1) Some of the practices obviously created a risk of genito-urinary infection, and others of septicaemia. These might indeed have been grave in former times, but the risk of serious harm must surely have been greatly reduced by modern medical science.

(2) The possibility that matters might get out of hand, with grave results. It has been acknowledged throughout the present proceedings that the appellants' activities were performed as a prearranged ritual, which at the same time enhanced their excitement and minimised the risk that the infliction of injury would go too far. Of course things might go wrong and really serious injury or death might ensue. If this happened, those responsible would be punished according to the ordinary law, in the same way as those who kill or injure in the course of more ordinary sexual activities are regularly punished. But to penalise the appellants' conduct even if the extreme consequences do not ensue, just because they might have done so, would require an assessment of the degree of risk, and the balancing of this risk against the interests of individual freedom. Such a balancing is in my opinion for Parliament, not the courts; and even if your Lordships' House were to embark upon it the attempt must in my opinion fail at the outset for there is no evidence at all of the seriousness of the hazards to which sado-masochistic conduct of this kind gives rise. This is not surprising, since the impressive argument of Mr Purnell QC for the Crown did not seek to persuade your Lordships to bring the matter within the 1861 Act on the ground of special risks, but rather to establish that the appellants are liable under the general law because the level of harm exceeded the critical level marking off criminal from non-criminal consensual violence which he invited your Lordships to indorse.

(3) I would give the same answer to the suggestion that these activities involved a risk of accelerating the spread of auto-immune deficiency syndrome (AIDS), and that they should be brought within the 1861 Act in the interests of public health. The consequence would be strange, since what is currently the principal cause for the transmission of this scourge, namely consenting buggery between males, is now legal. Nevertheless, I would have been compelled to give this proposition the most anxious consideration if there had been any evidence to support it. But there is none, since the case for the Crown was advanced on an entirely different ground.

(4) There remains an argument to which I have given much greater weight. As the evidence in the present case has shown, there is a risk that strangers (and especially young strangers) may be drawn into these activities at an early age and will then become established in them for life. This is indeed a disturbing prospect but I have come to the conclusion that it is not a sufficient ground for declaring these activities to be criminal under the 1861 Act. The element of the corruption of youth is already catered for by the existing legislation; and if there is a gap in it which needs to be filled the remedy surely lies in the hands of Parliament, not in the application of a statute which is aimed at other forms of wrongdoing. As regards proselytisation for adult sado-masochism the argument appears to me circular. For if the activity is not itself so much against the public interest that it ought to be declared criminal under the 1861 Act then the risk that others will be induced to join in cannot be a ground for making it criminal.

Leaving aside the logic of this answer, which seems to me impregnable, plain humanity demands that a court addressing the criminality of conduct such as that of the present should recognise and respond to the profound dismay which all members of the community share about the apparent increase of cruel and senseless crimes against the defenceless. Whilst doing so I must repeat for the last time that in the answer which I propose I do not advocate the decriminalisation of conduct which has hitherto been a crime; nor do I rebut a submission that a new crime should be created, penalising this conduct, for Mr Purnell has rightly not invited the House to take this course. The only question is whether these consensual private acts are offences against the existing law of violence. To this question I return a negative response.