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R. v Brown (Anthony Joseph), [1994] 1 A.C. 212 (1993)

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*212 Regina Respondent v Brown (Anthony) Appellant Regina Respondent v Lucas Appellant Regina Respondent v Jaggard Appellant Regina Respondent v Laskey Appellant Regina Respondent v Carter Appellant Positive/Neutral Judicial Consideration

Court House of Lords Judgment Date 11 March 1993 Report Citation [1993] 2 W.L.R. 556 [1994] 1 A.C. 212

House of Lords Lord Templeman , Lord Jauncey of Tullichettle , Lord Lowry , Lord Mustill and Lord Slynn of Hadley 1992 Dec. 1, 2, 3, 7; 1993 March 11 [Conjoined Appeals]

Crime—Assault—Consent—Sado-masochists willingly participating in assaults causing injury and pain against each other for sexual pleasure—Relevance of victim's consent—Whether satisfaction of sado-masochistic libido good reason for injuries— Offences against the Person Act 1861 (24 & 25 Vict. c. 100), ss. 20, 47 The appellants, a group of sado-masochists, willingly and enthusiastically participated in the commission of acts of violence against each other for the sexual pleasure it engendered in the giving and receiving of pain. They pleaded not guilty on arraignment to counts charging various offences under sections 20 and 47 of the Offences against the Person Act 1861 , 1 relating to the infliction of wounds or actual bodily harm on genital and other areas of the body of the consenting victim. On a ruling by the trial judge that, in the particular circumstances, the prosecution did not have to prove lack of consent by the victim, the appellants were re-arraigned, pleaded guilty, some to offences under section 20 and all to offences under section 47 and they were convicted. They appealed against conviction on the ground that the judge had erred in his rulings, in that the willing and enthusiastic consent of the victim to the acts on him prevented the prosecution from proving an essential element of the offence, whether charged under section 20 or section 47 of the Act of 1861; the Court of Appeal (Criminal Division) dismissed the appeal.

On appeal by the appellants:-

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R. v Brown (Anthony Joseph), [1994] 1 A.C. 212 (1993)

Held, dismissing the appeals (Lord Mustill and Lord Slynn of Hadley dissenting), that although a prosecutor had to prove absence of consent in order to secure a conviction for mere assault it was not in the public interest that a person should wound or cause actual bodily harm to another for no good reason and, in the absence of such a reason, the victim's consent afforded no defence to a charge under section 20 or 47 of the Act of 1861; that the satisfying of sado-masochistic desires did not constitute such a good reason; and that, since by their pleas some appellants had admitted wounding and all had admitted causing hurt or injury calculated to interfere with the health or comfort of the other party and since such injuries were neither transient nor trifling, the question of consent was immaterial and the judge's ruling had, accordingly, been correct (post, pp. 231D, 234F-G, 235A-B, 236G-H, 237G, 244G-245A, C, 246D-E, 247E-F, 248A, 250C, 253A-B, 255D-E, 256F). Dictum of Cave J. in Reg. v. Coney (1882) 8 Q.B.D. 534 , 539; Rex v. Donovan [1934] 2 K.B. 498, C.C.A. and AttorneyGeneral's Reference (No. 6 of 1980) [1981] Q.B. 715, C.A. applied . Per Lord Templeman, Lord Jauncey of Tullichettle and Lord Lowry. Articles 7 and 8 of the European Convention on Human Rights have no application to the circumstances of the present case (post, pp. 237B-F, 247D-E, 256C-E). Decision of the Court of Appeal (Criminal Division) [1992] Q.B. 491; [1992] 2 W.L.R. 441; [1992] 2 All E.R. 552 affirmed .

The following cases are referred to in their Lordships' opinions: Attorney-General's Reference (No. 6 of 1980) [1981] Q.B. 715; [1981] 3 W.L.R. 125; [1981] 2 All E.R. 1057, C.A. . Collins v. Wilcock [1984] 1 W.L.R. 1172; [1984] 3 All E.R. 374, D.C. . Director of Public Prosecutions v. Smith [1961] A.C. 290; [1960] 3 W.L.R. 546; [1960] 3 All E.R. 161, H.L.(E.) . Fairclough v. Whipp [1951] 2 All E.R. 834, D.C. . *214 J.J.C. (A Minor) v. Eisenhower [1983] 3 All E.R. 230, D.C. . Pallante v. Stadiums Pty. Ltd. (No. 1) [1976] V.R. 331 Raleigh's Case (1603) 2 St.Tr. 1 Reg. v. Boyea , The Times, 6 February 1992, C.A. . Reg. v. Bradshaw (1878) 14 Cox C.C. 83 Reg. v. Bruce (1847) 2 Cox C.C. 262 Reg. v. Ciccarelli (1989) 54 C.C.C. (3d) 121 Reg. v. Clarence (1888) 22 Q.B.D. 23 Reg. v. Coney (1882) 8 Q.B.D. 534 Reg. v. Griffin (1869) 11 Cox C.C. 402 Reg. v. Hopley (1860) 2 F. & F. 202 Reg. v. Jones (Terence) (1986) 83 Cr.App.R. 375, C.A. . Reg. v. McCoy , 1953 (2) S.A. 4 Reg. v. Moore (1898) 14 T.L.R. 229 Reg. v. Mowatt [1968] 1 Q.B. 421; [1967] 3 W.L.R. 1192; [1967] 3 All E.R. 47, C.A. . Reg. v. Orton (1878) 39 L.T. 293 Reg. v. Parmenter [1992] 1 A.C. 699; [1991] 3 W.L.R. 914; [1991] 4 All E.R. 698, H.L.(E.) . Reg. v. Wollaston (1872) 12 Cox C.C. 180 Reg. v. Young (1866) 10 Cox C.C. 371 Rex v. Cheeseman (1836) 7 C. & P. 455 Rex v. Conner (1836) 7 C. & P. 438 Rex v. Donovan [1934] 2 K.B. 498; 25 Cr.App.R. 1, C.C.A. . Rex v. Rice (1803) 3 East 581 Rex v. Taverner (1616) 3 Bulstr. 171 Wilson v. Pringle [1987] Q.B. 237; [1986] 3 W.L.R. 1; [1986] 2 All E.R. 440, C.A. . The following additional cases were cited in argument: APP. No. 9237/81 v. United Kingdom (1984) 6 E.H.R.R. 354 Bravery v. Bravery [1954] 1 W.L.R. 1169; [1954] 3 All E.R. 59, C.A. . Coward v. Baddeley (1859) 4 H. & N. 478

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R. v Brown (Anthony Joseph), [1994] 1 A.C. 212 (1993)

Dudgeon v. United Kingdom (1981) 4 E.H.R.R. 149 F. (Mental Patient: Sterilisation), In Re [1990] 2 A.C. 1; [1989] 2 W.L.R. 1025; [1989] 2 All E.R. 545, H.L.(E.) . Fagan v. Metropolitan Police Commissioner [1969] 1 Q.B. 439; [1968] 3 W.L.R. 1120; [1968] 3 All E.R. 442, D.C. . Faulkner v. Talbot [1981] 1 W.L.R. 1528; [1981] 3 All E.R. 468, D.C. . Golder v. United Kingdom (1975) 1 E.H.R.R. 524 Harman v. United Kingdom (1985) 7 E.H.R.R. 146 Malone v. United Kingdom (1982) 5 E.H.R.R. 385 Norris v. Ireland (1989) 13 E.H.R.R. 186 People v. Samuels (1967) 58 Cal.Rptr. 439 Reg. v. Cunningham [1957] 2 Q.B. 396; [1957] 3 W.L.R. 76; [1957] 2 All E.R. 412, C.C.A. . Reg. v. Howell (Errol) [1982] Q.B. 416; [1981] 3 W.L.R. 501; [1981] 3 All E.R. 383, C.A. . Reg. v. Lamb [1967] 2 Q.B. 981; [1967] 3 W.L.R. 888; [1967] 2 All E.R. 1282, C.A. . Reg. v. Mason (1968) 53 Cr.App.R. 12 Reg. v. R . [1992] 1 A.C. 599; [1991] 3 W.L.R. 767; [1991] 4 All E.R. 481, H.L.(E.) . Reg. v. Secretary of State for the Home Department, Ex parte Brind [1991] 1 A.C. 696; [1991] 2 W.L.R. 588; [1990] 1 All E.R. 720, H.L.(E.) . *215 Reg. v. Williams (Gladstone) [1987] 3 All E.R. 411; 78 Cr.App.R. 276 Silver v. United Kingdom (1983) 5 E.H.R.R. 347 Sunday Times v. United Kingdom (1979) 2 E.H.R.R. 245 X v. Republic of Austria, APP. No. 1850/63 (1965) 7 Yearbook 190 X v. United Kingdom, APP. No. 6683/74) (1975) 3 D.R. 95 X v. United Kingdom, APP. 7215/76 (1978) 3 E.H.R.R. 63 CONJOINED APPEALS from the Court of Appeal (Criminal Division). These were appeals by the defendants, Anthony John Brown, Saxon Lucas, Roland Leonard Jaggard, Colin Laskey and Christopher Robert Carter, from the judgment dated 19 July 1992 of the Court of Appeal (Criminal Division) (Lord Lane C.J., Rose and Potts JJ.) [1992] Q.B. 491 dismissing their appeals against conviction at the Central Criminal Court on 7 November 1990 before Judge Rant Q.C. The defendants after a ruling and re-arraignment had pleaded guilty variously to counts of, inter alia, assaults contrary to sections 20 and 47 of the Offences against the Person Act 1861 and were sentenced to terms of imprisonment. The Court of Appeal (Criminal Division) granted a certificate under section 33(2) of the Criminal Appeal Act 1968 that a point of law of general public importance was involved in the decision, namely: "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 establish A's guilt under section 20 or section 47 of the Offences against the Person Act 1861?" Leave to appeal was granted. The facts are stated in their Lordships' opinions. Lady Mallalieu Q.C. and Adrian Fulford for Jaggard and Lucas. In view of the public interest elements in the decisions of the courts below it is important to stress the following matters which were not in dispute. No complaint had been made to the police about any of the activities which formed the subject matter of the counts in the indictment. The investigation by the police which led to the present prosecution was not directed at uncovering offences of the type charged. No serious or permanent injury had been sustained by any of the appellants as a result of the activities complained of. The appellants' activities did not involve children, younger persons (except for K. with whom there was limited contact) or animals. The activities had all taken place in private, and in all save one occasion the incidents took place on private property, that is, in a private house or garden, or on occasion in the privacy of a hotel room. Participation in the acts complained of was carefully restricted and controlled and was limited to persons with declared like-minded sado-masochistic proclivities who wished to participate. The acts were not witnessed by the public at large. There was no desire on the part of the participants that they should be so witnessed. There was no danger or likelihood that they would ever be so witnessed. The appellants had never coerced anybody. The appellants had not used prohibited drugs.

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R. v Brown (Anthony Joseph), [1994] 1 A.C. 212 (1993)

*216 The Crown did not suggest that there was a profit motive. The video tapes made had not been commercially produced and were not intended to be seen outside the circle of those involved. The violence was limited and pre-defined by those participating and never exceeded what had been pre-arranged between the participants. The appellants did not appreciate that their actions in inflicting injuries were criminal, that is, they were unaware that they were committing an offence susceptible of prosecution under the Offences against the Person Act 1861. On certain occasions, where more than two persons were present, some appellants were aware that their conduct could give rise to prosecution for the offence of gross indecency. There is a time limit on prosecutions for gross indecency, namely, one year from the date upon which the offence is committed. Prosecution for offences of gross indecency in the present case would have been out of time. The relevant legislation is section 20 and section 47 of the Offences against the Person Act 1861. The question arises: is it right in principle and in law to use this legislation in the circumstances of the present case? Regard should be paid to the intention behind the legislation, and it is wrong in principle and law to seek to use this legislation to regulate consensual sexual behaviour between adults in private where no serious injury results. The Act is concerned to deal with persons who attack another; it is not an Act directed against persons consenting in private to assaults being committed upon themselves: see the preamble to the Act. There is abundant legislation dealing with sexual behaviour but none which assisted the Crown in prosecuting the appellants, Jaggard and Lucas. It is this circumstance which caused the Crown to search around and choose inappropriate legislation. The appellants do not suggest that if sado-masochistic activity goes beyond that agreed between the parties or if the level of violence involved causes palpable injury to one or more of the parties involved that the Act of 1861 does not then apply. The following is the correct definition of the offence of assault under the criminal law. An assault is committed when the defendant intentionally or recklessly causes his victim to apprehend the immediate infliction of unlawful force. A battery is committed when the defendant intentionally or recklessly inflicts unlawful force. The circumstances in which force is used is a relevant consideration in determining whether or not the conduct under review (i) is an assault, and (ii) is unlawful, for example, a sporting event. Breach of the peace is a relevant consideration only when consent is present: see Reg. v. Coney (1882) 8 Q.B.D. 534 , 549, 553. When consent is absent the assault is unlawful irrespective of whether injury results or whether a breach of the peace results or is threatened. A hostile touching without consent is an assault. The mental element necessary to constitute guilt is the intent to apply unlawful force to the victim; thus the act must be accompanied by a hostile intent calculated to cause apprehension in the mind of the victim. Hostile intent may in some circumstances be inferred from the deliberate act but it is a question of fact in the circumstances of the particular case. When consent is present the use of force is not unlawful; the prosecution *217 must negative consent or an essential constituent of the actus reus is missing. Rex v. Donovan [1934] 2 K.B. 498 was a decision on its own facts, in its own time. It is not binding on the House and was wrongly decided even in 1934. It follows that it is also wrong to criminalise conduct of that nature in 1992. "Hostile intent" is not a term of art as used by the Court of Appeal in the present case. The appellants rely on Reg. v. Mason (1968) 53 Cr.App.R. 12 , 15. [Reference was also made to Reg. v. Lamb [1967] 2 Q.B. 981 and Wilson v. Pringle [1987] Q.B. 237 , 246G.] Were the requisite elements of assault present in the instant case? On the relevant facts, and in particular bearing in mind (i) that the intention of all parties was mutual pleasure through sexual gratification, (ii) that there existed mutual consent, (iii) that there was a total lack of hostile animus and (iv) that no breach of the peace was occasioned or likely to be caused, there is no prima facie case on any of these counts on the basis of lack of consent. Absence of lawful excuse is only relevant to those cases where the recipient cannot give consent, for example, circumcision of a child or lawful chastisement of a child, and so does not fall to be considered in the present case. There is no prima facie case on the basis of "hostile" intent. Attorney-General's Reference (No. 6 of 1980) [1981] Q.B. 715 is distinguishable on the grounds that it related to fights. [Reference was made to Glanville Williams, "Consent and Public Policy" [1962] Crim.L.R. 74-80 ; Glanville Williams, Textbook of Criminal Law , 2nd ed. (1983), p. 582.] Does the public interest require the courts to intervene in these activities despite the presence of consent? In relation to this issue particular consideration should be given to the general rule that the prosecution must prove lack of consent, or alternatively, to the limited extent to which consent does not afford a defence to a charge of assault.

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R. v Brown (Anthony Joseph), [1994] 1 A.C. 212 (1993)

The courts make certain exceptions to the general rule that lack of consent is an ingredient of the offence of assault where the public interest requires the making of such exceptions. There are three heads under which the public interest may be said to arise: (i) where the assault causes permanent injury or maims, (ii) where a breach of the peace is likely to result (Reg. v. Coney , 8 Q.B.D. 534 has no application in the present circumstances) and (iii) where what is done is injurious to the public. Plainly (i) and (ii) have no application in the present case and therefore it is only (iii) that falls for consideration. It is not in the public interest that private adult sexual behaviour should be subject to regulation by the law, save in so far as Parliament has provided in the relevant legislation, namely, the legislation relating specifically to sexual offences. Where existing legislation for the regulation of private adult sexual behaviour is not appropriate it is wrong to seek to apply section 20 and section 47 of the Offences against the Person Act 1861 , which is neither intended for nor appropriate for the purpose, and to use it selectively only against a sexual minority. The activities which are the subject of the submissions are not unlawful by reason of consent, and in the absence of specific legislation prohibiting them it is not in the public interest that they should be so classified. If the law were to be interpreted in such a way as to criminalise *218 behaviour that does not produce a complaint from any of the participants nor from a member of the public, and neither threatens nor causes a breach of the peace the law will be unenforceable and brought into disrepute. This could not have been the intention of Parliament. If it is not necessary to prove the offence to have been committed against the consent of those upon whom it was perpetrated, both active and passive participants (if consenting) are equally guilty and both should be prosecuted. In most of these cases whether one or both parties are prosecuted, as neither of them are aggrieved as a result of their joint actions there are unlikely to be successful prosecutions because (i) the informant will rarely be a party to the conduct complained of and there will be no "victim;" (ii) the person who suffers injuries is likely to minimise them and/or fail to seek medical treatment for them if they merit such treatment; (iii) the passive participant is likely to attempt to undermine the prosecution case against his partner and such prosecutions will encourage perjury; (iv) the prosecution will have to rely on secondary evidence from officious bystanders or would be blackmailers; (v) there would be the need for and usually absence of corroboration or some confirming evidence; (vi) of the reluctance of juries to convict in the foregoing circumstance. By reason of the right to certainty in the law and the right to privacy contained in articles 7 and 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd. 8969) it is inappropriate to classify the activities, the subject of these submissions, as offences under the Offences against the Person Act 1861. By reason of the absence of an essential element of the offence of assault, namely, lack of consent and/or the causing of a breach of the peace there was no offence on any occasion reflected by the counts in the indictment and/or the necessary hostile intent was not made out on the facts presented by the Crown, and/or further or alternatively, consent provides the appellants with a defence to these allegations since the activities cannot be categorised as injurious to the public and thus as falling within the exceptions to the principle that consent negates the offence. Anna Worrall Q.C. and Gibson Grenfell for Laskey. Laskey pleaded guilty to keeping a disorderly house. This offence is concerned with the sexual element and public disgust at such an activity; it should not be carried on in the public eye or for money. Gross indecency was made an offence for similar reasons - public disgust. For the definition of a disorderly house: see Archbold, Criminal Pleading, Evidence and Practice, 44th ed. (1992), vol. 2, para. 31-133. The law has already dealt with the public interest/order element of sexual activities by having this offence. In relation to murder there must be an intent to do really serious harm. Harm inflicted which is less than this would come under the offence of manslaughter if the party assaulted died. The appellant relies on article 206 of Stephen, Digest of the Criminal Law, 3rd ed. (1883), where it is stated, "Everyone has a right to consent to the infliction upon himself of bodily harm not amounting to a maim." Two views may be taken of the element of consent in this field. (i) Lack *219 of consent on the part of the person upon whom injury has been inflicted is an ingredient of the offence itself, ...