Regina v Brown

The House of Lords held that, as a matter of English criminal law, the consent of a participant is not a defence to charges of assault occasioning actual bodily harm (section 47) or wounding/grievous bodily harm (section 20) of the Offences Against the Person Act 1861 when the injury arises from sado-masochistic encounters. The court relied on authority such as R v Coney, Rex v Donovan and Attorney-General's Reference (No. 6 of 1980) and on considerations of public policy, risk of serious and unpredictable injury, degradation, and the potential for corruption of young or vulnerable persons. The majority drew a distinction between lawful activities in which consent can negate criminality (for example properly conducted sport, lawful medical treatment and reasonable chastisement) and sado-masochistic violence, which the court regarded as outside those exceptions. The court considered but did not permit European Convention rights (Articles 7 and 8) to displace that conclusion.

The appeal arose from convictions for offences under sections 47 and 20 of the Offences Against the Person Act 1861 based on consensual sado-masochistic homosexual encounters in which participants suffered actual bodily harm or wounding. At trial the judge ruled that consent was no defence and the appellants pleaded guilty; their appeals to the Court of Appeal were dismissed on 19 February 1992, which certified the question whether prosecution must prove lack of consent. The appellants sought review by the House of Lords of those Court of Appeal orders.

(i) Nature of the application: conjoined appeals against convictions under ss.20 and 47 of the 1861 Act seeking reversal or variation of the Court of Appeal's rulings that consent was immaterial.

(ii) Issues framed: whether, where A wounds or assaults B in the course of a sado-masochistic encounter, the prosecution must prove lack of consent to establish guilt under ss.20 or 47; whether consent is a defence; and whether the European Convention on Human Rights (Articles 7 and 8) required a different outcome.

(iii) Court’s reasoning: the majority (Lords Templeman, Jauncey, Lowry and Slynn) concluded that established authorities (notably R v Coney, Rex v Donovan and Attorney-General's Reference (No.6 of 1980)) and public-interest considerations require that consent will not be a valid answer to prosecutions for actual bodily harm or worse arising from these activities. The reasoning emphasised unpredictability and danger of the practices, the indulgence of cruelty and degradation, risks of infection and escalation, and the possibility of corrupting young or vulnerable persons. The majority accepted recognised exceptions (surgery, properly conducted sport, lawful chastisement) but would not invent a new defence of consent for sado-masochistic violence and indicated that any change of the law in that domain should be for Parliament. The court examined and rejected arguments based on Articles 7 and 8 of the Convention. Lord Mustill dissented, favouring quashing of the convictions and arguing the courts should not extend criminal prohibition to private consensual acts below the level of really serious (grievous) bodily harm.

Appeals dismissed. The House affirmed the Court of Appeal: consent given in the context of sado-masochistic encounters does not provide a defence to offences under section 47 or section 20 of the Offences Against the Person Act 1861 because established authority and public-policy considerations (risk, degradation, public interest and protection of the vulnerable) place such violence outside the lawful exceptions where consent negates criminality; any extension of lawful consent should be made by Parliament.

Convictions entered at trial after the trial judge ruled that consent was no defence to charges under ss.47 and 20 of the Offences Against the Person Act 1861. Appeals to the Court of Appeal (Criminal Division) were dismissed by orders of 19 February 1992 and the Court certified a point of law. The appeals were conjoined and heard by the House of Lords, which by order of 11 March 1993 affirmed the Court of Appeal's orders and dismissed the appeals ([1993] UKHL 19).