Extreme sumarization of r v brown( key point of arguments used by the five judges)
Question certified by COA
"Where A wounds or assaults B occasioning him actual bodily harm in the course of a sado-masochistic encounter, does the prosecution have to prove lack of consent on the part of B before they can
- 1 - establish A's guilt under section 20 and section 47 of the 1861,
Offences Against the Person Act?"

Lord templement
In Reg. v. Coney (1882)
Cave J
"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."

Stephen J
"When one person is indicted for inflicting personal injury upon another, the consent of the person who sustains the injury is no defence to the person who inflicts the injury, if the injury is of such a nature, or is inflicted under such circumstances, that its infliction is injurious to the public as well as to the person injured. But the injuries given and received in prize-fights are injurious to the public, both because it is against the public interest that the lives and the health of the combatants should be endangered by blows, and because prize-fights are disorderly exhibitions, mischievous on many obvious grounds. Therefore the consent of the parties to the blows which they mutually receive does not prevent those blows from being assaults . .
. In cases where life and limb are exposed to no serious danger in the
-4-
common course of things, I think that consent is a defence to a charge of assault, even when considerable force is used, as, for instance, in cases of wrestling, single-stick, sparring with gloves, football and the like; but in all cases the question whether consent does or does not take from the application of force to another its illegal character, is a question of degree depending upon circumstances."
Hawkins J. said, at p. 553:
"... whatever may be the effect of a consent in a suit between party and party, it is not in the power of any man to give an effectual consent to that which amounts to, or has a direct tendency to create, a breach of the peace; so as to bar a criminal prosecution....... He may compromise his own civil rights, but he cannot compromise the public interests."
Lord Coleridge C.J. said, at p. 567:

the combatants in a duel cannot give consent to one another to take away life, so neither can the combatants in a prize-fight give consent to one another to commit that which the law has repeatedly held to be a breach of the peace. An individual cannot by such consent destroy the right of the
Crown to protect the public and keep the peace."

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 Rex v. Donovan [1934] 2 K.B. 498 the appellant in private beat a girl of seventeen for purposes of sexual gratification, it was said with her consent. Swift J.
"It is an unlawful act to beat another person with such a degree of violence that the infliction of bodily harm is a probable consequences, and when such an act is proved, consent is immaterial."
The Wolfenden Report (Report of the Committee on Homosexual
Offences and Prostitution (1957)
Parliament enacted section 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 21 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 21 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
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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."
By the Act of 1967, 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 section 1(1) of the Act of 1967 remain unlawful. Subject to the respect for private life embodied in the Act of 1967,
Parliament has retained criminal sanctions against the practice, dissemination and encouragement of homosexual activities.

Sado-masochistic participants have no way of foretelling the degree of bodily harm which will result from their encounters. The differences between actual bodily harm and serious bodily
- 7 - harm cannot be satisfactorily applied by a jury in order to determine acquittal or conviction.
. 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.

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. in the Court of Appeal, Lord Lane C.J
. . 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."

Society is entitled and bound to protect itself against a cult of violence.
Pleasure derived from the infliction of pain is an evil thing. Cruelty is uncivilised. I would answer the certified question in the negative and dismiss the appeals of the appellants against conviction.

LORD JAUNCEY OF TULLICHETTLE recordings were made not for sale at a profit.....that code words were used by the receiver when he could no longer bear the pain inflicted upon him and that when fish-hooks were inserted through the penis they were sterilised first. None of the appellants however had any medical qualifications and there was, of course, no referee present such as there would be in a boxing or football match.

The line between injuries to the infliction of which an individual could consent and injuries to whose infliction he could not consent must be drawn it was argued where the public interest required.
. Lady Mallalieu for laggard argued that injuries to which consent would be irrelevant were those which resulted in actual expense to the public by reason, for example, of the expenses of hospital or other medical treatment, or payment of some benefit. Miss Worrall for Laskey maintained that everyone had a right to consent to the infliction on himself of bodily harm not amounting to serious harm or maiming at which point public interest intervened.
In concluding that the consent of the receivers was immaterial to the offences charged the Court of Appeal relied on three cases, namely, Reg. v.
Coney (1882) 8 Q.B.D. 534, Rex. v. Donovan [1934] 2 K.B. 498 and
Attorney-General's Reference (No. 6 of 1980)

prize-fights were unlawful he was...by the fact that they were likely to be productive of breaches of the peace
Cave, Stephen and Hawkins JJ. and Lord Coleridge C.J. all considered that effectual consent could not be given to blows producing or likely to produce a breach of the peace.
Stephen J. that the fight took place before a crowd of more than 100 persons the likelihood of a breach of the peace would by itself have been sufficient to negative consent without considering the nature and effect of the blows struck. ...... it was against the public interest that blows should endanger the health of the combatants.
Cave J. in Coney, 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."
Attorney General's
Reference (No. 6 of 1980) an assault intended or which is likely to cause bodily harm, accompanied by indecency, is an offence irrespective of consent, provided that the injury is not 'transient or trifling'."
In reaching this conclusion I have not found it necessary to rely on the fact that the activities of the appellants were in any event unlawful inasmuch as they amounted to acts of gross indecency which, not having been committed in private, did not fall within section 1(1) of the
Sexual Offences Act 1967. Notwithstanding the views which I have come to,
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I think it right to say something about the submissions that consent to the activity of the appellants would not be injurious to the public interest.
Considerable emphasis was placed by the appellants on the well- ordered and secret manner in which their activities were conducted and upon the fact that these activities had resulted in no injuries which required medical attention. There was, it was said, no question of proselytising by the appellants. This latter submission sits ill with the following passage in the judgment of the Lord Chief Justice:
"They [Laskey and Cadman] recruited new participants: they jointly organised proceedings at the house where much of this activity took place; where much of the pain inflicting equipment was stored.
"Cadman was a voyeur rather than a sado-masochist, but both he and
Laskey through their operations at the Horwich premises were responsible in part for the corruption of a youth "K" to whom the judge, rightly in our view, paid particular attention. It is some comfort at least to be told, as we were, that "K" is now it seems settled into a normal heterosexual relationship."
Be that as it may, in considering the public interest it would be wrong to look only at the activities of the appellants alone, there being no suggestion that they and their associates are the only practitioners of homosexual sado- masochism in England and Wales. This House must therefore consider the possibility that these activities are practised by others and by others who are not so controlled or responsible as the appellants are claimed to be. Without going into details of all the rather curious activities in which the appellants engaged it would appear to be good luck rather than good judgment which has prevented serious injury from occurring. Wounds can easily become septic if not properly treated, the free flow of blood from a person who is H.I.V. positive or who has Aids can infect another and an inflicter who is carried away by sexual excitement or by drink or drugs could very easily inflict pain and injury beyond the level to which the receiver had consented. Your
Lordships have no information as to whether such situations have occurred in relation to other sado-masochistic practitioners.
My Lords I have no doubt that it would not be in the public interest that deliberate infliction of actual bodily harm during the course of homosexual sado-masochistic activities should be held to be lawful. In reaching this conclusion I have regard to the information available in these appeals and of such inferences as may be drawn therefrom. I appreciate that there may be a great deal of information relevant to these activities which is not available to your Lordships. When Parliament passed the Sexual Offences
Act 1967 which made buggery and acts of gross indecency between consenting males lawful it had available the Wolfenden Report (1957) (Cmnd. 247) which was the product of an exhaustive research into the problem. If it is to be decided that such activities as the nailing by A of B's foreskin or scrotum to a board or the insertion of hot wax into C's urethra followed by the burning of his penis with a candle or the incising of D's scrotum with a scalpel to the effusion of blood are injurious neither to B, C and D nor to the public interest then it is for Parliament with its accumulated wisdom and sources of information to declare them to be lawful.
Two further matters only require to be mentioned. There was argument as to whether consent, where available, was a necessary ingredient of the offence of assault or merely a defence.
In Collins v. Wilcock [1984] 1 W.L.R. 1172, 1177F Goff L.J. referred to consent being a defence to a battery. If it were necessary, which it is not, in this appeal to decide which argument was correct I would hold that consent was a defence to but not a necessary ingredient in assault.
The Wolfenden Report in considering gross indecency between males took the view that it usually took one of three forms, of which none involved the deliberate infliction of injury. Your Lordships were referred to no material which suggested that Parliament, when enacting the Act of 1956 had in contemplation the type of activities engaged in by the appellants. These activities necessarily comprehended acts of gross indecency as referred to in section 13 of the Sexual Offences Act 1956 and section 1(7) of the Act of 1967. However, the Wolfenden Report (1957) (Cmnd. 247), at paragraph 105 states that from police reports seen by the Committee and other evidence acts of gross indecency usually take one of the three forms in which none involves violence or injury. The activities of the appellants thus went
- 20 - far beyond the sort of conduct contemplated by the legislature in the foregoing statutory provisions and I consider that they were unlawful even when carried out in private. In these circumstances there exists no reason why the appellants should not have been charged under the Act of 1861.
I cannot usefully add anything to what my noble and learned friend
Lord Templeman has said in relation to the appellants' argument on articles
7 and 8 of the European Convention on Human Rights.
My Lords, I would answer the certified question in the negative and dismiss the appeals.
LORD LOWRY
Under the law which formerly held sway (and which has been thoroughly described and analysed by my noble and learned friend, Lord
Mustill) consent was a defence to a charge of common assault but not to a charge of mayhem or maiming. Everyone agrees that consent remains a complete defence to a charge of common assault and nearly everyone agrees that consent of the victim is not a defence to a charge of inflicting really serious personal injury (or "grievous bodily harm"). 1. That consent is a defence to a charge of common assault is a common law doctrine which the 1861 Act has done nothing to change. 1. The learned judge developed this view in his Digest of the Criminal Law, where he stated that consent was a defence to a charge of assault occasioning actual bodily harm. Archbold adopted that statement, for which there is no other judicial authority, until it was disapproved in R. v. Donovan [1934] 2
K.B. 498, and the editor of later editions of Stephen's Digest has abandoned the distinguished author's proposition.
. It clearly indicates the view of the court that assault, occasioning actual bodily harm, is malum in se, an offence for which, absent one of the recognised exceptions, the accused will be convicted, even though the victim consents
I would concede that the natural way in which to construe these passages is to the effect that (1) there is no assault if the act is consented to by the victim and (2) where the victim has consented, a factor directed to the public interest is needed in order to make the court hold that an offence has been committed.
No doubt this is what caused Professor Glanville Williams in Text book of
Criminal Law 2nd ed. (1983) at pp. 582-589 to express the view that, by vitiating the effect of the victim's consent in cases where the occasioning of physical harm seemed to be against the public interest, the courts were extending the law against assault and were legislating judicial paternalism.
Lord Chief Justice shows that what he said in Attorney General's Reference (No. 6 of 1980) was intended by him to be of general application:
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"It was submitted to us that the facts in that case were no different from those in the instant case that the principle which is expressed in the answer to the Attorney-General's question does not apply to the present circumstances. We disagree. In our judgment the principle as expressed in Attorney General's Reference (No. 6 of 1980) [1981] Q.B.
715 does apply. Consequently for those reasons the question of consent was immaterial. The judge's ruling was accordingly correct."

If, as I, too, consider, the question of consent is immaterial, there are prima facie offences against sections 20 and 47 and the next question is whether there is good reason to add sado-masochistic acts to the list of exceptions contemplated in Attorney-General's Reference. In my opinion, the answer to that question is "No".
In adopting this conclusion I follow closely my noble and learned friends Lord Templeman and Lord Jauncey. What the appellants are obliged to propose is that the deliberate and painful infliction of physical injury should be exempted from the operation of statutory provisions the object of which is to prevent or punish that very thing, the reason for the proposed exemption being that both those who will inflict and those who will suffer the injury wish to satisfy a perverted and depraved sexual desire. Sado-masochistic homosexual activity cannot be regarded as conducive to the enhancement or enjoyment of family life or conducive to the welfare of society. A relaxation of the prohibitions in sections 20 and 47 can only encourage the practice of homosexual sado-masochism and the physical cruelty that it must involve
(which can scarcely be regarded as a "manly diversion") by withdrawing the legal penalty and giving the activity a judicial imprimatur. As well as all this, one cannot overlook the physical danger to those who may indulge in sado- masochism. In this connection, and also generally, it is idle for the appellants to claim that they are educated exponents of "civilised cruelty". A proposed general exemption is to be tested by considering the likely general effect.
This must include the probability that some sado-masochistic activity, under the powerful influence of the sexual instinct, will get out of hand and result in serious physical damage to the participants and that some activity will involve a danger of infection such as these particular exponents do not contemplate for themselves. When considering the danger of infection, with its inevitable threat of AIDS, I am not impressed by the argument that this threat can be discounted on the ground that, as long ago as 1967, Parliament, subject to conditions, legalised buggery, now a well-known vehicle for the transmission of AIDS.
So far as I can see, the only counter-argument is that to place a restriction on sado-masochism is an unwarranted interference with the private life and activities of persons who are indulging in a lawful pursuit and are doing no harm to anyone except, possibly, themselves. This approach, which has characterised every submission put forward on behalf of the appellants, is derived from the fallacy that what is involved here is the restraint of a lawful activity as opposed the refusal to relax existing prohibitions in the 1861
- 30 -
Act. If in the course of buggery, as authorised by the 1967 Act, one participant, either with the other participant's consent or not, deliberately causes actual bodily harm to that other, an offence against section 47 has been committed. The 1967 Act provides no shield. The position is as simple as that, and there is no legal right to cause actual bodily harm in the course of sado-masochistic activity.
As your Lordships have observed, the appellants have sought to fortify their argument by reference to the European Convention on Human Rights.
On the view which I have taken, Article 7 has no relevance since the question of retrospective legislation or a retrospective judicial decision does not arise.
Article 8.1 of the Convention states that everyone has the right to respect for his private and family life, his home and his correspondence. The attempts to rely on this article is another example of the appellants' reversal of the onus of proof of legality, which disregards the effect of sections 20 and
47. I would only say, in the first, place, that article 8 is not part of our law.
Secondly, there has been no legislation which, being post-Convention and ambiguous, falls to be construed so as to conform with the Convention rather than to contradict it. And thirdly, if one is looking at article 8.2, no public authority can be said to have interfered with a right (to indulge in sado- masochism) by enforcing the provisions of the 1861 Act. If, as appears to be the fact, sado-masochistic acts inevitably involve the occasioning of at least actual bodily harm, there cannot be a right under our law to indulge in them.
For all these reasons I would answer "No" to the certified question and would dismiss the appeals
LORD MUSTILL people do not ordinarily consent to the infliction of harm.
In effect, either all or almost all the instances of the consensual infliction of violence are special. They have been in the past, and will continue to be in the future, the subject of special treatment by the law.
Blackstone wrote in his Commentaries, 17th ed. (1830), vol. 3, p. 120:
Generally
speaking, consent is a defence to battery; and most of the physical contacts of ordinary life are not actionable because they are impliedly consented to by all who move in society and so expose themselves to the risk of bodily contact. So nobody can complain of the jostling which is inevitable from his presence in, for example, a supermarket, an underground station or a busy street; nor can a person who attends a party complain if his hand is seized in friendship, or even if his back is, within reason, slapped: see Tuberville v. Savage (1669) 1 Mod. 3.

The doctor who hastens the end of a patient to terminate his agony acts with the best intentions, and quite without hostility to him in any ordinary sense of the word, yet there is no doubt that notwithstanding the patient's consent he is guilty of murder. Nor has it been questioned on the argument of the present appeal that someone who inflicts serious harm, because (for example) he is inspired by a belief in the efficacy of a pseudo- medical treatment, or acts in conformity with some extreme religious tenet, is guilty of an offence notwithstanding that he is inspired only by a desire to do the best he can for the recipient. Hostility cannot, as it seems to me, be a crucial factor which in itself determines guilt or innocence, although its presence or absence may be relevant when the court has to decide as a matter of policy how to react to a new situation.
The matter is put very clearly in East, Pleas of the Crown, (1803) vol. 1, ch. v, paras. 41 and 42, pp. 268-270:
" . . . If death ensue from such [sports] as are innocent and allowable, the case will fall within the rule of excusable homicide; but if the sport be unlawful in itself or productive of danger, riot, or disorder, from the occasion, so as to endanger the peace, and death ensue; the party killing is guilty of manslaughter. . . . Manly sports and exercises which tend to give strength, activity and skill in the use of arms, and are entered into merely as private recreations among friends, are not unlawful; and therefore persons playing by consent at cudgels, or foils, or wrestling are excusable if death ensue. For though doubtless it cannot be said that such exercises are altogether free from danger; yet they are very rarely attended with fatal consequences; and each party has friendly warning to be on his guard. And if the possibility of danger were the criterion by which the lawfulness of sports and recreations was to be decided, many exercises must be proscribed which are in common use, and were never heretofore deemed unlawful. . .
. But the latitude given to manly exercises of the nature above described, when conducted merely as diversions among friends, must not be extended to legalise prize-fighting, public boxing matches and the like, which are exhibited for the sake of lucre, and are calculated to draw together a number of idle disorderly people...And again, such meetings have a strong tendency in their nature to a breach of the peace.."
. 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 sections 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 section 47 an interpretation which penalises the relevant level of harm irrespective of consent: i.e. 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
- 49 - 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 Act of 1861 (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 pre-arranged 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, nor 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 Q.C. for the respondents did not seek to persuade
- 50 - your Lordships' to bring the matter within the Act of 1861 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 endorse.
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, and that they should be brought within the Act of 1861 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 respondent 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 Act of 1861. 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 wrong-doing. 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 Act of 1861 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 de-criminalisation 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.
V CONCLUSION
Accordingly I would allow these appeals and quash such of the convictions as are now before the House
LORD SLYNN OF HADLEY
The sole question is whether when a charge of assault is laid under the two sections in question, consent is relevant in the sense either that the prosecution must prove a lack of consent on the pan of the person to whom the act is done or that the existence of consent by such person constitutes a defence for the person charged.
Stephen's Digest of the Criminal Law 3rd ed. (1883) it is stated in article 206
"Everyone has a right to consent to the infliction upon himself of bodily harm not amounting to a maim
The law has recognised cases where consent, expressed or implied, can be a defence to what would otherwise be an assault and cases where consent cannot be a defence. The former include surgical operations, sports, the chastisement of children, jostling in a crowd, but all subject to a reasonable degree of force being used, tattooing and earpiercing; the latter include death and maiming. None of these situations, in most cases pragmatically accepted, either covers or is analogous to the facts of the present case.
The first is R. v. Coney (1882) 8 Q.B.D. 534. This is a somewhat remarkable case in that not only the two participants in a prize-fight but a number of observers were convicted of a common assault. The case was said to be relevant to the present question since it was decided that consent was not a defence to common assault. It is, however, accepted in the present appeal that consent can be a defence to common assault. Moreover it is plain from the judgment as a whole that a fight of this kind, since in public, either did, or had a direct tendency to, create a breach of the peace. It drew large crowds who gambled, who might have got excited and have fought among themselves. Moreover it was plain that such fights were brutal - the fighters went out to kill or very gravely injure their opponents and they fought until one of them died or was very gravely injured. As Mathew J. put it, at p.
544:
". . . the chief incentive to the wretched combatants to fight on until
(as happens too often) deadly injuries have been inflicted and life endangered or sacrificed, is the presence of spectators watching with keen interest every incident of the fight."
If someone is attacked and fights back he is not to be taken as consenting in any real sense. He fights to defend himself. If two people agree to fight to settle a quarrel the persons fighting may accept the risk of being hurt; they do not consent to serious hurt, on the contrary the whole object of the fight is to avoid being hurt and to hurt the opponent. It seems to me that the notion of "consent" fits ill into the situation where there is a fight. It is also very strange that a fight in private between two youths where one may, at most, get a bloody nose should be unlawful, whereas a boxing match where one heavyweight fighter seeks to knock out his opponent and possibly do him very serious damage should be lawful.
It is ". . . inherent in the conception of assault and battery that the victim does not consent" (Glanville Williams [1962] Grim. L.R. 74, 75).
I do not think a line can simply be drawn between "maiming" and death on the one hand and everything else on the other hand. The rationale for negating consent when maiming occurred has gone. It is, however, possible to draw the line, and the line should be drawn, between really serious injury on the one hand and less serious injuries on the other. I do not accept that it is right to take common assault as the sole category of assaults to which consent can be a defence and to deny that defence in respect of all other injuries. In the first place the range of injuries which can fall within "actual bodily harm" is wide - the description of two beatings in the present case show that one is much more substantial than the other. Further, the same is true of wounding where the test is whether the skin is broken and where it can be more or less serious. I can see no significant reason for refusing consent as a defence for the lesser of these cases of actual bodily harm and wounding.
If a line has to be drawn, as I think it must, to be workable, it cannot be allowed to fluctuate within particular charges and in the interests of legal certainty it has to be accepted that consent can be given to acts which are said to constitute actual bodily harm and wounding. Grievous bodily harm I accept to be different by analogy with and as an extension of the old cases on maiming. Accordingly, I accept that other than for cases of grievous bodily harm or death, consent can be a defence. This in no way means that the acts done are approved of or encouraged. It means no more than that the acts do not constitute an assault within the meaning of these two specific sections of the Offences against the Person Act 1861.
None of the convictions in the present cases have been on the basis that grievous bodily harm was caused. Whether some of the acts done in these cases might have fallen within that category does not seem to me to be relevant for present purposes.
Even if the act done constitutes common assault, actual bodily harm or wounding, it remains to be established that the act was done otherwise than in public and that it was done with full consent. I do not accept the suggested test, as to whether an offence is committed, to be whether there is expense to the state in the form of medical assistance or social security payments. It seems to me better to ask whether the act was done in private or in public: is the public harmed or offended by seeing what is done or is a breach of the peace likely to be provoked? Nor do I consider that "hostility" in the sense of "aggression" is a necessary element to an assault. It is sufficient if what is done is done intentionally and against the will of the person to whom it is done. These features in themselves constitute "hostility".
In the present cases there is no doubt that there was consent; indeed there was more than mere consent. Astonishing though it may seem, the persons involved positively wanted, asked for, the acts to be done to them, acts which it seems from the evidence some of them also did to themselves.
All the accused were old enough to know what they were doing. The acts were done in private. Neither the applicants nor anyone else complained as to what was done. The matter came to the attention of the police
"coincidentally"; the police were previously unaware that the accused were involved in these practices though some of them had been involved for many years. The acts did not result in any permanent or serious injury or disability or any infection and no medical assistance was required even though there may have been some risk of infection, even injury.
There has been much argument as to whether lack of consent is a constituent of the offence which must be proved by the prosecution or whether consent is simply raised by way of defence. Reliance is placed on the
Canadian case of Reg. v. Ciccarelli (1989) 54 C.C.C. (3d) 121, 123, where it is said that in the absence of express consent the Crown must prove that the victim did not impliedly consent to the act done. That decision, however, is in the context of section 244 of the Criminal Code, (revised statutes of Canada
1970) which provides that: "A person commits an assault when, without the consent of another person, or with consent (a) he applies force intentionally to the person of the other, directly or indirectly; . . . " In the present statute there is no such provision, but it seems to me that here too the onus is on the prosecution to prove that there was no consent on the part of the person said to have been assaulted.
It has been suggested that if the act done is otherwise unlawful then consent cannot be a defence, but it can be a defence, if the act is otherwise lawful, in respect of injury which is less than really serious injury. That would produce the result in the present case that if these acts are done by two men they would be lawful by reason of section 1 of the Sexual Offences Act
1967, even though the acts are far away from the kinds of homosexual acts which the Wolfenden Report had in mind (see paragraph 105 of the Report); in that situation, consent, it is said, would be a defence. If on the other hand three men took part, the activity would be unlawful under the Act of 1967 so that there could be no consent to the acts done. But it would also appear to mean that if these acts were done mutatis mutandis by a man and a woman, or between two men and a woman, or a man and two women, where the activity was entirely heterosexual, consent would prevent there being an offence. I do not find that this distinction produces an acceptable result.
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My conclusion is thus that as the law stands, adults can consent to acts done in private which do not result in serious bodily harm, so that such acts do not constitute criminal assaults for the purposes of the Act of 1861. My conclusion is not based on the alternative argument that for the criminal law to encompass consensual acts done in private would in itself be an unlawful invasion of privacy. If these acts between consenting adults in private did constitute criminal offences under the Act of 1861, there would clearly be an invasion of privacy. Whether that invasion would be justified and in particular whether it would be within the derogations permitted by article 8(2) of the European Convention on Human Rights, it is not necessary, on the conclusion to which I have come, to decide, despite the interesting arguments address to your Lordships on that question and even on the basis that English law includes a principle parallel to that set out in the European Convention on
Human Rights.
Mr. Kershaw Q.C. contended in a very helpful argument that the answer to the question should be on the basis (a) of existing law or (b) that a new ruling was to be given. My conclusion is on the basis of what I consider existing law to be. I do not consider that it is necessary for the House in its judicial capacity to give what is called "a new ruling" based on freedom of expression, public opinion, and the consequences of a negative ruling on those whom it is said can only get satisfaction through these acts; indeed the latter
I regard as being of no or at best of little relevance to the decision in this case. Nor do I think that it is for your Lordships to make new law on the basis of the position in other states so that English law can "keep in line". All these are essentially matters, in my view, to be balanced by the legislature if it is thought necessary to consider the making criminal of sado-masochistic acts per se. The problems involved are carefully analysed by Dr. L.H. Leigh in Sado-masochism, Consent and the Reform of the Criminal Law'"(1976) 39
M.L.R. 130.
The Director of Public Prosecution contends in her written submissions: "In the end it is a matter of policy. Is/are the state/courts right to adopt a paternalistic attitude as to what is bad or good for subjects, in particular as to deliberate injury."
I agree that in the end it is a matter of policy. It is a matter of policy in an area where social and moral factors are extremely important and where attitudes can change. In my opinion it is a matter of policy for the legislature to decide. If society takes the view that this kind of behaviour, even though sought after and done in private, is either so new or so extensive or so undesirable that it should be brought now for the first time within the criminal law, then it is for the legislature to decide. It is not for the courts in the interests of "paternalism", as referred to in the passage I have quoted, or in order to protect people from themselves, to introduce, into existing statutory crimes relating to offences against the person, concepts which do not properly
- 59 - fit there. If Parliament considers that the behaviour revealed here should be made specifically criminal, then the Offences against the Person Act 1861 or, perhaps more appropriately, the Sexual Offences Act 1967 can be amended specifically to define it. Alternatively, if it is intended that this sort of conduct should be lawful as between two persons but not between more than two persons as falling within the offence of gross indecency, then the limitation period for prosecution can be extended and the penalties increased where sadomasochistic acts are involved. That is obviously a possible course; whether it is a desirable way of changing the law is a different question.
I would therefore answer the question certified on the basis that where a charge is brought in respect of acts done between adults in private under section 20 of the Offences against the Person Act 1861 in respect of wounding and under section 47 in respect of causing actual bodily harm, it must be proved by the prosecution that the person to whom the act was done did not consent to it.
Accordingly I consider that these appeals should be allowed and the conviction set aside.