R v Brown [1993] UKHL 19 (11 March 1993)

Five men engaged in consensual sadomasochistic homosexual activities were convicted of assault occasioning actual bodily harm and wounding. The House of Lords held that consent is no defence to charges under sections 20 and 47 of the Offences Against the Person Act 1861 where actual bodily harm is deliberately inflicted, regardless of consent between adults in private.

Facts

The appellants were middle-aged men who participated in consensual sadomasochistic homosexual encounters. Their activities included genital torture, beatings, wounding with instruments, and branding. The acts were conducted in private, were filmed, and involved willing adult participants who used code words to signal when pain became excessive. The activities came to police attention during an investigation into other matters, not from any complaint by participants. No permanent injuries resulted, though the acts involved breaking of skin and infliction of hurt beyond the merely transient or trifling.

Charges

The appellants were charged with assault occasioning actual bodily harm contrary to section 47 of the Offences Against the Person Act 1861, and three appellants were additionally charged with wounding contrary to section 20 of the same Act. Following a preliminary ruling by the trial judge that consent was no defence, the appellants pleaded guilty.

Issues

The certified question of law was whether, where A wounds or assaults B occasioning actual bodily harm in the course of a sadomasochistic encounter, the prosecution must prove lack of consent on the part of B before establishing guilt under sections 20 and 47 of the Offences Against the Person Act 1861.

Judgment

Majority Opinion

The House of Lords, by a majority of three to two (Lord Templeman, Lord Jauncey of Tullichettle, and Lord Lowry in the majority), dismissed the appeals and answered the certified question in the negative.

Lord Templeman held that while consent is a defence to common assault, it is not a defence to assault occasioning actual bodily harm or wounding. He distinguished lawful activities such as surgery, sports, and tattooing from sadomasochistic violence, which he described as dangerous, degrading, and unpredictably harmful. He emphasised that society is entitled to protect itself against a cult of violence.

Lord Jauncey held that the line between assault where consent is relevant and assault where it is not should be drawn between common assault and assault occasioning actual bodily harm. He considered that public interest demands that deliberate infliction of actual bodily harm during sadomasochistic activities should not be lawful, noting the potential for escalation, infection, and corruption of young persons.

Lord Lowry agreed that the deliberate infliction of physical injury should not be exempted from statutory prohibition merely because the participants consent and derive sexual gratification from the activities.

Dissenting Opinions

Lord Mustill and Lord Slynn of Hadley dissented. Lord Mustill considered that the prosecution was brought under an inapposite statute, as the Offences Against the Person Act 1861 was aimed at conduct involving animosity and aggression rather than consensual private sexual activities. He would have allowed the appeals on the basis that the public interest did not require criminalising these private consensual acts.

Lord Slynn considered that consent should be a defence to actual bodily harm and wounding (though not grievous bodily harm), and that it was for Parliament rather than the courts to extend criminal liability to consensual private conduct.

Implications

This decision established that consent is no defence to charges of assault occasioning actual bodily harm or wounding under the Offences Against the Person Act 1861, regardless of the private and consensual nature of the conduct. The majority took a paternalistic approach, prioritising public policy considerations over individual autonomy in matters of bodily harm.

The case has significant implications for the boundaries of consent in criminal law, distinguishing between activities where consent legitimates otherwise harmful conduct (such as properly conducted sports and surgery) and those where it does not. The decision was subsequently considered by the European Court of Human Rights in Laskey, Jaggard and Brown v United Kingdom, which held that the prosecution did not violate Article 8 of the European Convention on Human Rights.

Verdict: Appeals dismissed. The certified question was answered in the negative. Consent is not a defence to charges of assault occasioning actual bodily harm or wounding under sections 47 and 20 of the Offences Against the Person Act 1861 in the context of sadomasochistic encounters.

Source: R v Brown [1993] UKHL 19 (11 March 1993)