R v Brown (Anthony) (R v Carter (Christopher), R v Jaggard, R v Laskey, R v Lucas)

By a majority, the House held that a person cannot ordinarily consent to the intentional or reckless infliction of actual bodily harm, wounding or grievous bodily harm. Consent remains effective for common assault and within recognised lawful exceptions, including properly conducted sport, reasonable surgery, tattooing and piercing.

Consensual violence inflicted during private sadomasochistic activity falls outside those exceptions. Its sexual purpose supplies no lawful justification. The potential for escalating injury, infection, cruelty and corruption made its prohibition consistent with the public interest. Accordingly, lack of consent is not an element which the prosecution must prove under sections 20 or 47 of the Offences Against the Person Act 1861.

Five appellants participated in consensual sadomasochistic sexual activities involving deliberate injuries. All pleaded guilty to assault occasioning actual bodily harm under section 47 of the Offences Against the Person Act 1861; three also pleaded guilty to wounding under section 20. Their pleas followed the trial judge’s ruling that the recipients’ consent afforded no defence.

The Court of Appeal (Criminal Division), whose decision is reported at [1992] QB 491, upheld the convictions. It certified whether, where actual bodily harm or wounding was caused during a sadomasochistic encounter, the prosecution had to prove the recipient’s lack of consent to establish guilt under sections 20 or 47.

1. Disposition. The appeals were dismissed by a majority of three to two. Lord Templeman and Lord Jauncey delivered the principal majority speeches. Lord Lowry agreed with their reasoning and conclusions. The certified question was answered in the negative. Lord Mustill and Lord Slynn dissented.
2. Threshold of criminal harm. Per Lord Jauncey, supported by Lord Lowry, consent is ordinarily effective in relation to common assault but supplies no answer to assault occasioning actual bodily harm under section 47, wounding or grievous bodily harm under section 20 of the Offences Against the Person Act 1861. The statutory language does not make lack of consent an ingredient or create a general defence of consent. Drawing the line immediately above common assault is workable and avoids distinctions within section 20 according to the eventual degree of injury.
3. Recognised lawful activities. Per Lord Templeman and Lord Jauncey, injury may nevertheless be lawful where it is a foreseeable incident of a recognised lawful activity. Examples include properly conducted sport, reasonable surgery, ritual circumcision, tattooing and piercing. These categories rest on legal right or public interest. They do not establish a general right to authorise another person to inflict bodily harm.
4. Sadomasochistic violence. Per Lord Templeman, the law should not extend those exceptions to violence inflicted for sadomasochistic gratification. Such conduct involved intentional cruelty rather than violence merely incidental to another lawful purpose. It carried unpredictable risks of escalating injury and infection and could facilitate the corruption of vulnerable participants. Lord Jauncey likewise treated potential harm as relevant to public policy, even though the particular injuries caused no permanent damage.
5. Sexual context and human rights. The Sexual Offences Act 1967 did not legalise intentional violence or limit sections 20 and 47. Per Lord Templeman and Lord Lowry, article 7 of the European Convention on Human Rights was not engaged because the conduct was criminal under the existing law. Assuming article 8 applied, the protection of health, morals and others justified enforcement of the prohibition.
6. Dissent. Lord Mustill and Lord Slynn considered that adults could consent in private to actual bodily harm and wounding falling short of serious bodily harm. They would have required the prosecution to disprove consent and would have allowed the appeals. In their view, any wider criminalisation was a matter for Parliament.

1. House of Lords: By a majority of three to two, affirmed the Court of Appeal’s orders, dismissed the conjoined appeals and answered the certified question in the negative: [1994] 1 AC 212.
2. Court of Appeal (Criminal Division): Dismissed the appeals against the trial judge’s ruling that consent was immaterial: [1992] QB 491.
3. Central Criminal Court: Following the judge’s ruling that consent afforded no defence, the appellants pleaded guilty to offences under sections 20 and 47 of the Offences Against the Person Act 1861.