Criminal Law

Non-fatal Offences Cases

R v Brown (Anthony) [1994] 1 AC 212

Key Point

• Consent is no defence to inflicting actual bodily harm, grievous bodily harm or wounding i.e., ss 20 and 47 Offences Against the Person Act 1861 (OAPA)
• However, an exception applies to sports, surgery, taking risk of infection in sexual acts

Facts

• A group of gay men were engaged in sado-masochistic sexual activities
• They were convicted under s20 and s47 OAPA
• The judge directed the jury that they prosecution was not required to prove that ‘victims’ did not consent

Issue

• Should the defence of consent be extended to infliction of bodily harm in the course of sado-masochistic encounters

Held (House of Lords)

• Appeal dismissed – Ds were rightly convicted, consent is not a defence to ss 20 and 47 OAPA

Lord Templeman

Scope of consent defence

• Consent is a defence to assault or battery but is no defence where actual bodily harm, wounding or grievous bodily harm is inflicted
• An exception applies to cases where actual bodily harm, wounding or grievous bodily harm is inflicted as a result of lawful activity such as surgery, boxing, tattooing, ear-piercing, and circumcision
• ‘In principle there is a difference between violence which is incidental and violence which is inflicted for the indulgence of cruelty.’

Current case

• The list of exceptions should not be extended to sado-masochistic activities
• Reasons given include:
  • Health risks: The acts posed dangers of serious personal injury and blood infection
  • Public morality: ‘Society is entitled and bound to protect itself against a cult of violence. Pleasure derived from the infliction of pain is an evil thing. Cruelty is uncivilised’

Lord Mustill (dissenting)

• ‘these are questions of private morality; that the standards by which they fall to be judged are not those of the criminal law’
• ‘The only question is whether these consensual private acts are offences against the existing law of violence. To this question I return a negative response.’

Lord Slynn of Hadley (dissenting)

• ‘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.’