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R v Brown [1993] 2 All ER 75

R v Brown
Royal Coat of Arms of the United Kingdom.svg
CourtHouse of lords
Decided11 March 1993
Citation(s)[1994] 1 AC 212; [1993] 2 WLR 556; [1993] 2 All ER 75; (1993) 97 Cr App R 44; (1993) 157 JP 337; (1993) 157 JPN 233; (1993) 143 NLJ 399
Case history
Prior action(s)None
Subsequent action(s)Laskey, Jaggard and Brown v. the United Kingdom
Court membership
Judge(s) sittingLord Templeman, Lord Jauncey, Lord Lowry, Lord Mustill and Lord Slynn
Assault, consent

Brown was an English case which concerned the prosecution of a group of sado-masochists who had engaged in sado-masochistic activities with each other which involved arguably dangerous acts of violence. All the members of the group were consenting adults, although there were questions in the case as to whether some activities were consented to or whether they went beyond what the participants agreed. The group took some safety precautions including a code word they could use if they found an activity particularly painful or wanted to stop, as well as ensuring everything used in the activity was clean. No-one was permanently injured as a result of the activities. Some of the activities were video recorded although they were only used to view by the members of the group and were not sold.

The appellants were charged with assault occasioning actual bodily harm contrary to section 47 of the Offences Against the Person Act 1861 and unlawful wounding contrary to section 20 of the same Act.

The House of lords held (by a majority of 3 to 2) that the appellants were guilty of the offences, regardless of whether the victims consented, and the fact that it was done in private.

Here's a summary of the main reasons why their Lordships so held:

Lord Templeman

The defence of consent should not be extended to the offence of occasioning ABH under section 47 because sado-masochistic participants have no way of foretelling the degree of bodily harm which could result from these encounters.

Although the law is often broken, criminal law restrains a practice which is regarded as dangerous and injurious to individuals which if allowed and extended is harmful to society generally. In any event the appellants did not mutilate their own bodies but others’.

Sado-masochism is not only concerned with sex. It is also concerned with violence. Evidence shows that the practises of the appellants were unpredictably dangerous and degrading to the body and mind.

It is not surprising that the victim does not complain to the police when the complaint would involve him giving details of acts in which he participated.

I am not prepared to invent a defence of consent for sado-masochistic encounters which breed and glorify cruelty and result in offences.

Society is entitled to protect itself against a cult of violence. Pleasure derived from the infliction of pain is an evil thing. Cruelty is uncivilised.

Lord Jauncey

Without going into the details of the 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 sceptic if not properly treated, free flow of blood from a person who is HIV positive or who has aids can infect another and an inflictor who is carried away by sexual excitement or by drink or drugs could very easily inflict pain beyond the level to which the receiver had consented.

When considering the public interest potential harm is just as relevant as actual harm (defeating the argument that you cannot punish the accused for something that did not actually happen and only had a potential to happen).

I have no doubt that it would not be in the public interest that deliberate inflicting of actual bodily harm during the course of homosexual sado-masochistic activities should be held to be lawful…if it is to be decided that such activities…are not injurious to the public interest then it is for Parliament with its accumulated wisdom and sources of information to declare them lawful.

The acts of the appellants went far beyond the sort of conduct contemplated by the legislature in the forgoing statutory provisions (following the Wolfenden Report) and I consider they were unlawful even when carried out in private.

Lord Lowry

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 power and influence of sexual instinct, will get out of hand and result in serious physical damage to the participants and that some activity will involve the danger of infection. 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 legalised buggery (subject to conditions), now a well known vehicle for the transmission of AIDS.

(on the ECHR) 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 Act of 1861. 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 them.

Lord Mustill (dissenting)

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.

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.

Conduct infringing sections 18, 20 and 47 of the Act of 1861 comes before the Crown Courts 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 face, quite the reverse.

Hostility cannot 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 logic of this (unlawful act argument) demands that if the prosecution can show that sexual harming constitutes some other offence, however trifiling and however different in character, the prosecution will be able to establish an offence of common assault or an offence under the 1861 Act , even if in its absence the defendant would not be guilty of any offence at all. Surely this cannot be right.

I can find nothing in (the decided authorities) to suggest that the consensual infliction of hurt is transmuted into an offence of violence simply because it is chargeable as another offence.

(on the ECHR) the European Authorities...clearly favour the right of the appellants to conduct their private lives undisturbed by the criminal law.

These are questions of private morality. The standards by which they fall to be judged are not those of the criminal law.

The risk of infection from the activities may have been grave in former times, but the risk of serious harm must surely have been greatly reduced by modern medical science.

There is no evidence of the seriousness of the hazards to which sado-masochistic conduct of this kind gives rise.

The risk of young people being drawn into these activities is not a sufficient ground for declaring these activities to be criminal.

Lord Slynn (dissenting)

Other than for cases of grievous bodily harm or death, consent can be a defence. This is 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 the two specific sections of the OAPA 1861.

All the accused were old enough to know what they were doing. The acts were done in private. Neither the appellants nor anyone else complained as to what was done...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 or 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.

Full judgement can be found at [[1]]

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