Regina v. Brown (Appellant) (On Appeal from the Court of
Appeal (Criminal Division))
Regina v. Lucas (Appellant) (On Appeal from the Court of
Appeal (Criminal Division))
Regina v. Jaggard (Appellant) (On Appeal from the Court of
Appeal (Criminal Division))
Regina v. Laskey (Appellant) (On Appeal from the Court of
Appeal (Criminal Division))
Regina v. Carter (Appellant) (On Appeal from the Court of
Appeal (Criminal Division)
(Conjoined Appeals)
JUDGMENT
Die Jovis 11° Martii 1993
Upon Report from the Appellate Committee to whom was
referred the Cause Regina against Brown, Regina against Lucas,
Regina against Jaggard, Regina against Laskey and Regina against
Carter, That the Committee had heard Counsel as well on Tuesday
the 1st as on Wednesday the 2nd, Thursday the 3rd and Monday the
7th days of December last upon the Petitions and Appeals of
Anthony Joseph Brown of 36 Heathmere Avenue, Yardley, Birmingham,
Saxon Lucas of 243 Albert Road, Meersbrook, Sheffield, S8 9QY,
Roland Jaggard of 295 Knella Road, Welwyn Garden City,
Hertfordshire, Colin Laskey of 27 Llanwern Road, Maesycoed,
Pontypridd, Mid-Glamorgan, Wales and Christopher Robert Carter
of 10 New Street, Frankwell, Shrewsbury, Shropshire, praying that
the matter of the Orders set forth in the Schedules thereto,
namely Orders of Her Majesty’s Court of Appeal (Criminal
Division) of the 19th day of February 1992, might be reviewed
before Her Majesty the Queen in Her Court of Parliament and that
the said Orders might be reversed, varied or altered or that the
Petitioners might have such other relief in the premises as to
Her Majesty the Queen in Her Court of Parliament might seem meet;
as upon the case of the Director of Public Prosecutions (on
behalf of Her Majesty) lodged in answer to the said Appeals;
which said Appeals were by an Order of this House of the 9th day
of November 1992 conjoined; and due consideration had this day
of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and
Temporal in the Court of Parliament of Her Majesty the Queen
assembled, That the said Orders of Her Majesty’s Court of Appeal
(Criminal Division) of the 19th day of February 1992 complained
of in the said Appeals be, and the same are hereby, Affirmed and
that the said Petitions and Appeals be, and the same are hereby,
dismissed this House: And it is further Ordered. That the
Certified Question be answered in the negative.
Cler: Parliamentor:
Judgment: 11 March 1993
HOUSE OF LORDS
REGINA
v.
BROWN (APPELLANT)
LUCAS(APPELLANT)
JAGGARD (APPELLANT)
LASKEY (APPELLANT)
CARTER (APPELLANT)
(ON APPEAL FROM THE COURT OF APPEAL)
(CRIMINAL DIVISION)
(CONJOINED APPEALS)
Lord Templeman
Lord Jauncey of Tullichettle
Lord Lowry
Lord Mustill
Lord Slynn of Hadley
LORD TEMPLEMAN
My Lords,
The appellants were convicted of assaults occasioning actual bodily
harm contrary to section 47 of the Offences Against the Person Act 1861.
Three of the appellants were also convicted of wounding contrary to section
20 of the Act of 1861 (24225 Vict. c. 100). The incidents which led to each
conviction occurred in the course of consensual sado-masochistic homosexual
encounters. The Court of Appeal upheld the convictions and certified the
following point of law of general public importance:
“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
– 1 –
establish A’s guilt under section 20 and section 47 of the 1861,
Offences Against the Person Act?”
The definition of assault set forth in the 14th Report of the Criminal
Law Revision Committee (1980) (Cmnd 7844) para. 158 and adopted by the
Law Commission in their Consultation Paper No. 122 (1992) paragraph 9.1
is as follows:
“At common law, an assault is an act by which a person intentionally
or recklessly causes another to apprehend immediate and unlawful
personal violence and a battery is an act by which a person
intentionally or recklessly inflicts personal violence upon another.
However, the term ‘assault’, is now, in both ordinary legal usage and
in statutes, regularly used to cover both assault and battery.”
There are now three types of assault in ascending order of gravity, first
common assault, secondly assault which occasions actual bodily harm and
thirdly assault which inflicts grievous bodily harm.
By section 39 of the Criminal Justice Act 1988
“Common assault and battery shall be summary offences and a person
guilty of either of them shall be liable to a fine … to imprisonment
for a term not exceeding six months, or to both.”
By section 47 of the Act of 1861, as amended:
“Whosoever shall be convicted upon an indictment of any assault
occasioning actual bodily harm shall be liable … [to a maximum
penalty of five years imprisonment].”
In Rex v. Donovan [1934] 2 K.B. 498 Swift J. delivering the judgment
of the Court of Criminal Appeal said, at p. 509:
“‘ . . . bodily harm’ has its ordinary meaning and includes any hurt or
injury calculated to interfere with the health or comfort of the
prosecutor. Such hurt or injury need not be permanent, but must, no
doubt, be more than merely transient and trifling.”
In the present case each appellant pleaded guilty to an offence under
this section when the trial judge ruled that consent of the victim was no
defence.
-2-
By section 20 of the Act of 1861, as amended:
“Whosoever shall unlawfully and maliciously wound or inflict any
grievous bodily harm upon any other person, either with or without
any weapon or instrument, shall be guilty of [an offence], . . . and
shall be liable … [to a maximum penalty of five years
imprisonment].”
To constitute a wound for the purposes of the section the whole skin
must be broken and not merely the outer layer called the epidermis or the
cuticles; see J.J.C. (a minor) v. Eisenhower [1983] 3 All E.R. 230.
“Grievous bodily harm” means simply bodily harm that is really
serious and it has been said that it is undesirable to attempt a further
definition; see Director of Public Prosecution v. Smith [1961] A.C. 290.
In section 20 the words “unlawfully” means that the accused had no
lawful excuse such as self defence. The word “maliciously” means no more
than intentionally for present purposes; see Reg. v. Mowatt [1968] 1 Q.B.
421.
Three of the appellants pleaded guilty to charges under section 20
when the trial judge ruled that the consent of the victim afforded no defence.
In the present case each of the appellants intentionally inflicted violence
upon another (to whom I refer as “the victim”) with the consent of the victim
and thereby occasioned actual bodily harm or in some cases wounding or
grievous bodily harm. Each appellant was therefore guilty of an offence
under section 47 or section 20 of the Act of 1861 unless the consent of the
victim was effective to prevent the commission of the offence or effective to
constitute a defence to the charge.
In some circumstances violence is not punishable under the criminal
law. When no actual bodily harm is caused, the consent of the person
affected precludes him from complaining. There can be no conviction for the
summary offence of common assault if the victim has consented to the assault.
Even when violence is intentionally inflicted and results in actual bodily harm,
wounding or serious bodily harm the accused is entitled to be acquitted if the
injury was a foreseeable incident of a lawful activity in which the person
injured was participating. Surgery involves intentional violence resulting in
actual or sometimes serious bodily harm but surgery is a lawful activity.
Other activities carried on with consent by or on behalf of the injured person
have been accepted as lawful notwithstanding that they involve actual bodily
harm or may cause serious bodily harm. Ritual circumcision, tattooing, ear-
piercing and violent sports including boxing are lawful activities.
In earlier days some other forms of violence were lawful and when
they ceased to be lawful they were tolerated until well into the 19th century.
-3-
Duelling and fighting were at first lawful and then tolerated provided the
protagonists were voluntary participants. But where the results of these
activities was the maiming of one of the participants, the defence of consent
never availed the aggressor; see Hawkins pleas of the Crown (1824), 8th ed.,
Chapter 15. A maim was bodily harm whereby a man was deprived of the
use of any member of his body which he needed to use in order to fight but
a bodily injury was not a maim merely because it was a disfigurement. The
act of maim was unlawful because the King was deprived of the services of
an able-bodied citizen for the defence of the realm. Violence which maimed
was unlawful despite consent to the activity which produced the maiming. In
these days there is no difference between maiming on the one hand and
wounding or causing grievous bodily harm on the other hand except with
regard to sentence.
When duelling became unlawful, juries remained unwilling to convict
but the judges insisted that persons guilty of causing death or bodily injury
should be convicted despite the consent of the victim.
Similarly, in the old days, fighting was lawful provided the
protagonists consented because it was thought that fighting inculcated bravery
and skill and physical fitness. The brutality of knuckle fighting however
caused the courts to declare that such fights were unlawful even if the
protagonists consented. Rightly or wrongly the courts accepted that boxing
is a lawful activity.
In Reg. v. Coney (1882) 8 Q.B.D. 534, the court held that a prize-fight
in public was unlawful. Cave J. said, at p. 539:
“The true view is, I think, that a blow struck in anger, or which is
likely or is intended to do corporal hurt, is an assault, but that a blow
struck in sport, and not likely nor intended to cause bodily harm, is
not an assault, and that an assault being a breach of the peace and
unlawful, the consent of the person struck is immaterial.”
Stephen J. said, at p. 549:
“When one person is indicted for inflicting personal injury upon
another, the consent of the person who sustains the injury is no
defence to the person who inflicts the injury, if the injury is of such
a nature, or is inflicted under such circumstances, that its infliction is
injurious to the public as well as to the person injured. But the
injuries given and received in prize-fights are injurious to the public,
both because it is against the public interest that the lives and the
health of the combatants should be endangered by blows, and because
prize-fights are disorderly exhibitions, mischievous on many obvious
grounds. Therefore the consent of the parties to the blows which they
mutually receive does not prevent those blows from being assaults . .
. In cases where life and limb are exposed to no serious danger in the
-4-
common course of things, I think that consent is a defence to a charge
of assault, even when considerable force is used, as, for instance, in
cases of wrestling, single-stick, sparring with gloves, football and the
like; but in all cases the question whether consent does or does not
take from the application of force to another its illegal character, is a
question of degree depending upon circumstances.”
Hawkins J. said, at p. 553:
“… whatever may be the effect of a consent in a suit between party
and party, it is not in the power of any man to give an effectual
consent to that which amounts to, or has a direct tendency to create,
a breach of the peace; so as to bar a criminal prosecution. In other
words, though a man may by consent debar himself from his right to
maintain a civil action, he cannot thereby defeat proceedings instituted
by the Crown in the interest of the public for the maintenance of good
order; … He may compromise his own civil rights, but he cannot
compromise the public interests.”
Lord Coleridge C.J. said, at p. 567:
“. . .I conceive it to be established, beyond the power of any
argument however ingenious to raise a doubt, that as the combatants
in a duel cannot give consent to one another to take away life, so
neither can the combatants in a prize-fight give consent to one another
to commit that which the law has repeatedly held to be a breach of the
peace. An individual cannot by such consent destroy the right of the
Crown to protect the public and keep the peace.”
The conclusion is that a prize-fight being unlawful, actual bodily harm
or serious bodily harm inflicted in the course of a prize-fight is unlawful
notwithstanding the consent of the protagonists.
In Rex v. Donovan [1934] 2 K.B. 498 the appellant in private beat a
girl of seventeen for purposes of sexual gratification, it was said with her
consent. Swift J. said, at p. 507 that:
“It is an unlawful act to beat another person with such a degree of
violence that the infliction of bodily harm is a probable consequences,
and when such an act is proved, consent is immaterial.”
In Attorney General’s Reference (No. 6 of 1980) [1981] QB 715
where two men quarrelled and fought with bare fists Lord Lane, C.J.,
delivering the judgment of the Court of Appeal said, at p. 719:
“. . . It is not in the public interest that people should try to cause, or
should cause, each other bodily harm for no good reason. Minor
struggles are another matter. So, in our judgment, it is immaterial
– 5 –
whether the act occurs in private or in public; it is an assault if actual
bodily harm is intended and/caused. This means that most fights will
be unlawful regardless of consent. Nothing which we have said is
intended to cast doubt upon the accepted legality of properly conducted
games and sports, lawful chastisement or correction, reasonable
surgical interference, dangerous exhibitions, etc. These apparent
exceptions can be justified as involving the exercise of a legal right,
in the case of chastisement or correction, or as needed in the public
interest, in the other cases.”
Duelling and fighting are both unlawful and the consent of the
protagonists affords no defence to charges of causing actual bodily harm,
wounding or grievous bodily harm in the course of an unlawful activity.
The appellants and their victims in the present case were engaged in
consensual homosexual activities. The attitude of the public towards
homosexual practices changed in the second half of this century. Change in
public attitudes led to a change in the law.
The Wolfenden Report (Report of the Committee on Homosexual
Offences and Prostitution (1957) ((Cmnd. 247)) declared that the function of
the criminal law in relation to homosexual behaviour “is to preserve public
order and decency, to project the citizen from what is offensive or injurious,
and to provide sufficient safeguards against exploitation and corruption of
others, particularly those who are especially vulnerable because they are
young, weak in body or mind, inexperienced, or in a state of special,
physical, official or economic dependence”; paragraph 13 of chapter 2.
In response to the Wolfenden Report and consistently with its
recommendations, Parliament enacted section 1 of the Sexual Offences Act
1967 which provided, inter alia, as follows:
“(1) Notwithstanding any statutory or common law provision, . . .
a homosexual act in private shall not be an offence provided that the
parties consent thereto and have attained the age of 21 years.
“(2) An act which would otherwise be treated for the purposes of this
Act as being done in private shall not be so treated if done – (a) when
more than two persons take part or are present; . . .
“(6) It is hereby declared that where in any proceedings it is charged
that a homosexual act is an offence the prosecutor shall have the
burden of proving that the act was done otherwise than in private or
otherwise than with the consent of the parties or that any of the parties
had not attained the age of 21 years.
“(7) For the purposes of this section a man shall be treated as doing
a homosexual act if, and only if, he commits buggery with another
-6-
man or commits an act of gross indecency with another man or is a
party to the commission by a man of such an act.”
The offence of gross indecency was created by section 13 of the Sexual
Offences Act 1956 in the following terms:
“It is an offence for a man to commit an act of gross indecency with
another man, whether in public or private, or to be a party to the
commission by a man of an act of gross indecency with another man,
or to procure the commission by a man of an act of gross indecency
with another man.”
By the Act of 1967, Parliament recognised and accepted the practice
of homosexuality. Subject to exceptions not here relevant, sexual activities
conducted in private between not more than two consenting adults of the same
sex or different sexes are now lawful. Homosexual activities performed in
circumstances which do not fall within section 1(1) of the Act of 1967 remain
unlawful. Subject to the respect for private life embodied in the Act of 1967,
Parliament has retained criminal sanctions against the practice, dissemination
and encouragement of homosexual activities.
My Lords, the authorities dealing with the intentional infliction of
bodily harm do not establish that consent is a defence to a charge under the
Act of 1861. They establish that the courts have accepted that consent is a
defence to the infliction of bodily harm in the course of some lawful activities.
The question is whether the defence should be extended to the infliction of
bodily harm in the course of sado-masochistic encounters. The Wolfenden
Committee did not make any recommendations about sado-masochism and
Parliament did not deal with violence in 1967. The Act of 1967 is of no
assistance for present purposes because the present problem was not under
consideration.
The question whether the defence of consent should be extended to the
consequences of sado-masochistic encounters can only be decided by
consideration of policy and public interest. Parliament can call on the advice
of doctors, psychiatrists, criminologists, sociologists and other experts and can
also sound and take into account public opinion. But the question must at this
stage be decided by this House in its judicial capacity in order to determine
whether the convictions of the appellants should be upheld or quashed.
Counsel for some of the appellants argued that the defence of consent
should be extended to the offence of occasioning actual bodily harm under
section 47 of the Act of 1861 but should not be available to charges of serious
wounding and the infliction of serious bodily harm under section 20. I do not
consider that this solution is practicable. Sado-masochistic participants have
no way of foretelling the degree of bodily harm which will result from their
encounters. The differences between actual bodily harm and serious bodily
– 7 –
harm cannot be satisfactorily applied by a jury in order to determine acquittal
or conviction.
Counsel for the appellants argued that consent should provide a defence
to charges under both section 20 and section 47 because, it was said, every
person has a right to deal with his body as he pleases. I do not consider that
this slogan provides a sufficient guide to the policy decision which must now
be made. It is an offence for a person to abuse his own body and mind by
taking drugs. Although the law is often broken, the criminal law restrains a
practice which is regarded as dangerous and injurious to individuals and which
if allowed and extended is harmful to society generally. In any event the
appellants in this case did not mutilate their own bodies. They inflicted bodily
harm on willing victims. Suicide is no longer an offence but a person who
assists another to commit suicide is guilty of murder or manslaughter.
The assertion was made on behalf of the appellants that the sexual
appetites of sadists and masochists can only be satisfied by the infliction of
bodily harm and that the law should not punish the consensual achievement of
sexual satisfaction. There was no evidence to support the assertion that sado-
masochist activities are essential to the happiness of the appellants or any
other participants but the argument would be acceptable if sado-masochism
were only concerned with sex, as the appellants contend. In my opinion sado-
masochism is not only concerned with sex. Sado-masochism is also concerned
with violence. The evidence discloses that the practices of the appellants were
unpredictably dangerous and degrading to body and mind and were developed
with increasing barbarity and taught to persons whose consents were dubious
or worthless.
A sadist draws pleasure from inflicting or watching cruelty. A
masochist derives pleasure from his own pain or humiliation. The appellants
are middle-aged men. The victims were youths some of whom were
introduced to sado-masochism before they attained the age of 21. In his
judgment in the Court of Appeal, Lord Lane C.J. said that two members of
the group of which the appellants formed part, namely one Cadman and the
appellant Laskey:
“. . . were responsible in part for the corruption of a youth K . . . It
is some comfort at least to be told, as we were, that K has now it
seems settled into a normal heterosexual relationship. Cadman had
befriended K when the boy was 15 years old. He met him in a
cafeteria and, so he says, found out that the boy was interested in
homosexual activities. He introduced and encouraged K in “bondage
affairs”. He was interested in viewing and recording on videotape K
and other teenage boys in homosexual scenes . . . One cannot overlook
the danger that the gravity of the assaults and injuries in this type of
case may escalate to even more unacceptable heights.”
– 8 –
The evidence disclosed that drink and drugs were employed to obtain
consent and increase enthusiasm. The victim was usually manacled so that the
sadist could enjoy the thrill of power and the victim could enjoy the thrill of
helplessness. The victim had no control over the harm which the sadist, also
stimulated by drink and drugs might inflict. In one case a victim was branded
twice on the thigh and there was some doubt as to whether he consented to or
protested against the second branding. The dangers involved in administering
violence must have been appreciated by the appellants because, so it was said
by their counsel, each victim was given a code word which he could
pronounce when excessive harm or pain was caused. The efficiency of this
precaution, when taken, depends on the circumstances and on the personalities
involved. No one can feel the pain of another. The charges against the
appellants were based on genital torture and violence to the buttocks, anus,
penis, testicles and nipples. The victims were degraded and humiliated
sometimes beaten, sometimes wounded with instruments and sometimes
branded. Bloodletting and the smearing of human blood produced excitement.
There were obvious dangers of serious personal injury and blood infection.
Prosecuting counsel informed the trial judge against the protests of defence
counsel, that although the appellants had not contracted AIDS, two members
of the group had died from AIDS and one other had contracted an HIV
infection although not necessarily from the practices of the group. Some
activities involved excrement. The assertion that the instruments employed by
the sadists were clean and sterilized could not have removed the danger of
infection, and the assertion that care was taken demonstrates the possibility of
infection. Cruelty to human beings was on occasions supplemented by cruelty
to animals in the form of bestiality. It is fortunate that there were no
permanent injuries to a victim though no one knows the extent of harm
inflicted in other cases. It is not surprising that a victim does not complain
to the police when the complaint would involve him in giving details of acts
in which he participated. Doctors of course are subject to a code of
confidentiality.
In principle there is a difference between violence which is incidental
and violence which is inflicted for the indulgence of cruelty. The violence of
sado-masochistic encounters involves the indulgence of cruelty by sadists and
the degradation of victims. Such violence is injurious to the participants and
unpredictably dangerous. I am not prepared to invent a defence of consent for
sado-masochistic encounters which breed and glorify cruelty and result in
offences under sections 47 and 20 of the Act of 1861.
The appellants’ counsel complained that some of the group’s activities
involved the appellants in offences of gross indecency which, happily for the
appellants, became time barred before the police obtained video films made
by members of the group of some of their activities. Counsel submitted that
since gross indecency charges were time barred, the police acted unfairly
when they charged the appellants with offences under the Act of 1861. But
there was no reason for the police to refrain from pursuing the charges under
the Act of 1861 merely because other charges could not be pursued.
– 9 –
Indecency charges are connected with sex. Charges under the Act of 1861 are
concerned with violence. The violence of sadists and the degradation of their
victims have sexual motivations but sex is no excuse for violence.
The appellants’ counsel relied, somewhat faintly, on article 7 of the
European Convention on Human Rights. That article so far as material
provides that:
” 1. No one shall be guilty of any criminal offence on account of
any act or omission which did not constitute a criminal offence
under national or international law at the time when it was
committed.”
At the relevant time it was a criminal offence under English law to
inflict actual bodily harm or worse. Counsel submitted that the appellants
reasonably believed that consent was a defence. This was an ingenious
argument for which there was no foundation in fact or principle and which in
any event does not seem to me to provide a defence under article 7.
The appellants’ counsel relied on article 8 of the Convention which is
in these terms:
“1. Everyone has the right to respect for his private and family
life, his home and his correspondence.
2. There shall be no interference by a public authority for the
exercise of this right except such as is in accordance with the
law and is necessary in a democratic society in the interests of
natural security, public safety or the economic well-being of
the country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the
rights and freedoms of others.”
It is not clear to me that the activities of the appellants were exercises
of rights in respect of private and family life. But assuming that the
appellants are claiming to exercise those rights I do not consider that Article
8 invalidates a law which forbids violence which is intentionally harmful to
body and mind.
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. I would answer the certified question in the negative and dismiss
the appeals of the appellants against conviction.
– 10 –
LORD JAUNCEY OF TULLICHETTLE
My Lords,
All five appellants and a number of other persons were charged with
offences against section 47 of the Offences Against the Person Act 1861, and
the appellants Laskey, Jaggard and Lucas were also charged with
contraventions of section 20 of that Act. The events giving rise to all the
charges were sado-masochistic homosexual activities carried out consensually
by the appellants with each other and with other persons. Following upon a
ruling of the trial judge that consent of the other participant (“the receiver”)
was no defence to the charges the appellants pleaded guilty and were duly
sentenced. Their appeals against the judge’s ruling were dismissed by the
Court of Appeal which certified the following point of law as being of general
public importance.
“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?”
Although the issue of consent was fundamental and indeed common to
all five appeals the appellants did not lack for representation since no less than
four Queens Counsel and one junior counsel addressed your Lordships on
their behalf on different aspects of this matter.
The facts giving rise to the charges came to light as a result of police
investigation into other matters. It was common ground that the receivers had
neither complained to the police nor suffered any permanent injury as a result
of the activities of the appellants. Although the incidents giving rise to each
charge were the subject of a video-recording, these recordings were made not
for sale at a profit but for the benefit of those members of the “ring”, if one
may so describe it, who had not had the opportunity of witnessing the events
in person. Your Lordships were further informed that the activities of the
appellants, who are middle aged men, were conducted in secret and in a
highly controlled manner, that code words were used by the receiver when he
could no longer bear the pain inflicted upon him and that when fish-hooks
were inserted through the penis they were sterilised first. None of the
appellants however had any medical qualifications and there was, of course,
no referee present such as there would be in a boxing or football match.
The basic argument propounded by all the appellants was that the
receivers having in every case consented to what was inflicted upon them no
offence had been committed against sections 20 or 47 of the Offences Against
the Person Act 1861. All the appellants recognised however that so broad a
proposition could not stand up and that there must be some limitation upon the
harm which an individual could consent to receive at the hand of another.
– 11 –
The line between injuries to the infliction of which an individual could consent
and injuries to whose infliction he could not consent must be drawn it was
argued where the public interest required. Thus except in the case of
regulated sports the public interest required that injuries should not be inflicted
in public where they might give rise to a breach of the peace. Lady Mallalieu
for laggard argued that injuries to which consent would be irrelevant were
those which resulted in actual expense to the public by reason, for example,
of the expenses of hospital or other medical treatment, or payment of some
benefit. Such injuries would be likely to be serious and to be appropriate to
a section 20 charge, whereas the consensual infliction of less serious injuries
would not constitute an offence. Furthermore the presence of hostility was an
essential element in the offence of assault, which element was necessarily
lacking where a valid consent was present. Miss Worrall for Laskey
maintained that everyone had a right to consent to the infliction on himself of
bodily harm not amounting to serious harm or maiming at which point public
interest intervened. She further argued that having regard to the common law
offence of keeping a disorderly house and to the various offences created by
the Sexual Offences Acts 1956 to 1976 it was inappropriate to use the Act of
1861 for the prosecution of sexual offences because the public interest was
adequately looked after by the common law offence and the later Acts. Mr.
Kershen for Brown also argued that the Act of 1861 was an inappropriate
weapon to use in these cases. He submitted that while deliberate infliction of
injury resulting in serious bodily harm might be an offence whether or not
consent was given, deliberate consensual wounding would not be an offence
if it did not cause serious bodily harm. This latter proposition would appear
to draw the line somewhere down the middle of section 20. Mr. Kershen
further argued that if his primary submissions were wrong this House should,
having regard to the current public interest in freedom of sexual expression,
lay down new rules for sado-masochistic activities. Mr. Thwaites for Carter
traced the history of the offence of maiming which deprived the King of
possible service, invited your Lordships to hold that Rex. v. Donovan [1934]
2 K.B. 498, and Attorney-General’s Reference (No. 6 of 1980), 1981 1 Q.B.
715, to which I shall refer later, were wrongly decided and submitted that as
a matter of principle a man could lawfully consent to the infliction of any
injury upon himself which fell short of maiming.
In concluding that the consent of the receivers was immaterial to the
offences charged the Court of Appeal relied on three cases, namely, Reg. v.
Coney (1882) 8 Q.B.D. 534, Rex. v. Donovan [1934] 2 K.B. 498 and
Attorney-General’s Reference (No. 6 of 1980) [1981] QB 715. Before
examining these cases it is interesting to look at the definitions of “Maim” and
“Assault” in Hawkins’ Pleas of the Crown, 8th ed. (1824), Book 1 in Chapter
15. Maiming is defined, at p. 107, Sect. 1, as “… such a hurt of any part
of a man’s body whereby he is rendered less able, in fighting, either to defend
himself or to annoy his adversary . . . . ” Examples are then given. Assault
is defined, at p. 110, Sect. 1, as “… an attempt to offer, with force and
violence, to do a corporal hurt to another” and battery (Sect. 2) as “… any
injury whatsoever be it never so small, being actually done to the person of
– 12 –
a man in an angry, revengeful, rude, or insolent manner . . . ” It is to be
noted that lack of consent of the victim is stated to be a necessary ingredient
neither of assault nor of battery. In Coney the 11 judges who heard the case
held that a prize-fight was unlawful, that all persons aiding and abetting
therein were guilty of assault, and that consent of the persons actually engaged
in fighting to the interchange of blows did not afford any answer to the
criminal charge of common assault. The appellants were spectators at an
organised fight between two men near a public road. Cave J. said, at p. 539:
“The true view is, I think, that a blow struck in anger, or which is
likely or is intended to do corporal hurt, is an assault, but that a blow
struck in sport, and not likely, nor intended to cause bodily harm, is
not an assault, and that, an assault being a breach of the peace and
unlawful, the consent of the person struck is immaterial. If this view
is correct a blow struck in a prize-fight is clearly an assault; but
playing with single-sticks or wrestling do not involve an assault; nor
does boxing with gloves in the ordinary way, and not with the ferocity
and severe punishment to the boxers deposed to in Reg. v. Orton
Stephen J. said, at p. 549:
.
“The principle as to consent seems to me to be this: When one person
is indicted for inflicting personal injury upon another, the consent of
the person who sustains the injury is no defence to the person who
inflicts the injury, if the injury is of such a nature, or is inflicted under
such circumstances, that its infliction is injurious to the public as well
as to the person injured. But the injuries given and received in prize-
fights are injurious to the public, both because it is against the public
interest that the lives and the health of the combatants should be
endangered by blows, and because prize-fights are disorderly
exhibitions, mischievous on many obvious grounds. Therefore the
consent of the parties to the blows which they mutually received does
not prevent those blows from being assaults.”
In this passage Stephen J. clearly considered that prize-fights were likely to
cause breaches of the peace and that no consent could render fights with such
a result lawful. In a later passage on the same page he said:
“In cases where life and limb are exposed to no serious danger in the
common course of things, I think that consent is a defence to a charge
of assault, even when considerable force is used, as, for instance, in
cases of wrestling, single-stick, sparring with gloves, football, and the
like; but in all cases the question whether consent does or does not
take from the application of force to another its illegal character, is a
question of degree depending upon circumstances.”
– 13 –
In this passage he appears to be considering organised sports where
danger to life and limb is merely incidental to the main purpose of the
activity. Hawkins J. said, at p. 553:
“As a general proposition it is undoubtedly true that there can be no
assault unless the act charged as such be done without the consent of
the person alleged to be assaulted, for want of consent is an essential
element in every assault, and that which is done by consent is no
assault at all.”
He later said:
“. . . it is not in the power of any man to give an effectual consent to
that which amounts to, or has a direct tendency to create, a breach of
the peace; so as to bar a criminal prosecution.”
Hawkins J. concluded that every fight in which the object and intent of each
of the combatants was to subdue the other by violent blows tending to a
breach of the peace was illegal and he distinguished friendly encounters in the
follow passage, at p. 554:
“The cases in which it has been held that persons may lawfully engage
in friendly encounters not calculated to produce real injury to or to
rouse angry passions in either, do not in the least militate against the
view I have expressed; for such encounters are neither breaches of the
peace nor are they calculated to be productive thereof,”
It is obvious that in concluding that prize-fights were unlawful he was
influenced mainly, if not entirely, by the fact that they were likely to be
productive of breaches of the peace. Furthermore, it would in my view be
wrong to treat the first cited dictum of Hawkins J. as referring to all assaults
irrespective of the gravity thereof. The court was considering a charge of
common assault and I do not think that the learned judge was intending to lay
down a general principle which was applicable also to assaults charged under
section 47 of the Act of 1861 or to offences under section 20 thereof. Lord
Coleridge C.J. at p. 567 similarly concluded that the combatants in a prize-
fight could not consent to commit a breach of the peace.
Although there was unanimity among the judges in Coney as to consent
in the particular circumstances affording no answer to a charge of assault,
there were differing reasons advanced for reaching that conclusion. However,
Cave, Stephen and Hawkins JJ. and Lord Coleridge C.J. all considered that
effectual consent could not be given to blows producing or likely to produce
a breach of the peace. Stephen J. specifically referred to prize-fights being
injurious to the public as disorderly exhibitions and it may be assumed that the
other three judges also had in mind the public interest in preventing breaches
of the peace. Given the fact that the fight took place before a crowd of more
than 100 persons the likelihood of a breach of the peace would by itself have
– 14 –
been sufficient to negative consent without considering the nature and effect
of the blows struck. Nevertheless, Stephen J. also considered that it was
against the public interest that blows should endanger the health of the
combatants. Whether he had in mind only blows which produced a maim is
not stated although in the editions of his Digest published before and after
Coney he stated “Everyone has a right to consent to the infliction upon himself
of bodily harm not amounting to a maim.” (3rd ed. (1883) article 206) I do
not find great assistance in Coney towards the immediate resolution of the
questions raised in these appeals where the offences charged were statutory
and where no question of breach of the peace arose. I would therefore sum
up my analysis of Coney 8 Q.B.D. 534 by concluding that it is authority for
the proposition that the public interest limits the extent to which an individual
may consent to infliction upon himself by another of bodily harm and that
such public interest does not intervene in the case of sports where any
infliction of injury is merely incidental to the purpose of the main activity.
In Donovan [1934] 2 K.B. 498 the appellant was charged with indecent
and common assault upon a girl whom he had beaten with her consent for his
own sexual gratification. In delivering the judgment of the Court of Criminal
Appeal Swift J., after citing the passage in the judgment of Cave J. in Coney,
to which I have already referred, said, at p. 507:
“If an act is unlawful in the sense of being in itself a criminal act, it
is plain that it cannot be rendered lawful because the person to whose
detriment it is done consents to it. No person can license another to
commit a crime. So far as the criminal law is concerned, therefore,
where the act charged is in itself unlawful, it can never be necessary
to prove absence of consent on the part of the person wronged in order
to obtain the conviction of the wrongdoer. There are, however, many
acts in themselves harmless and lawful which become unlawful only
if they are done without the consent of the person affected. What is,
in one case, an innocent act of familiarity or affection, may, in
another, be an assault, for no other reason that that, in the one case
there is consent, and in the other consent is absent. As a general rule,
although it is a rule to which there are well established exceptions, it
is an unlawful act to beat another person with such a degree of
violence that the infliction of bodily harm is a probable consequence,
and when such an act is proved, consent is immaterial.”
Swift J. also observed that the passage from Stephen’s Digest which I
have quoted above needed considerable qualification in 1934. He went on to
consider exceptions to the general rule that an act likely or intended to cause
bodily harm is an unlawful act. Such exceptions included friendly contests
with cudgels, foils or wrestling which were capable of causing bodily harm,
rough and undisciplined sports or play where there was no anger and no
intention to cause bodily harm and reasonable chastisement by a parent for a
person in loco parentis. He might also have added necessary surgery. After
referring to the fact that if the appellant acted so as to cause bodily harm he
– 15 –
could not plead the gratification of his perverted desires as an excuse, Swift
J. said, at p. 509:
“Always supposing, therefore, that the blows which he struck were
likely or intended to do bodily harm, we are of opinion that he was
doing an unlawful act, no evidence having been given of facts which
would bring the case within any of the exceptions to the general rule.
In our view, on the evidence given at the trial, the jury should have
been directed that, if they were satisfied that the blows struck by the
prisoner were likely or intended to do bodily harm to the prosecutrix,
they ought to convict him, and that it was only if they were not so
satisfied, that it became necessary to consider the further question
whether the prosecution had negatived consent. For this purpose we
think that ‘bodily harm’ has its ordinary meaning and includes any hurt
or injury calculated to interfere with the health or comfort of the
prosecutor. Such hurt or injury need not be permanent, but must, no
doubt, be more than merely transient and trifling.”
It is clear from the report that the girl did in fact suffer actual bodily harm.
In Attorney General’s Reference (No. 6 of 1980) [1981] QB 715 the
respondent and the victim had a fistfight in a public street which resulted in
actual bodily harm to the victim. The respondent was charged with assault
causing actual bodily harm and was acquitted. The question referred to the
Court of Appeal was (p. 717):
“Where two persons fight (otherwise than in the course of sport) in a
public place can it be a defence for one of those persons to a charge
of assault arising out of the fight that the other consented to fight?”
The court answered the question in the negative. Lord Lane C.J. said, at
p.718H:
“Bearing in mind the various cases and the views of the text book
writers cited to us, and starting with the proposition that ordinarily an
act consented to will not constitute an assault, the question is: at what
point does the public interest require the court to hold otherwise?”
He later said, at p. 719C:
“The answer to this question, in our judgment, is that it is not in the
public interest that people should try to cause, or should cause, each
other actual bodily harm for no good reason. Minor struggles are
another matter. So, in our judgment, it is immaterial whether the act
occurs in private or in public; it is an assault if actual bodily harm is
intended and/or caused. This means that most fights will be unlawful
regardless of consent.
– 16 –
“Nothing which we have said is intended to cast doubt upon the
accepted legality of properly conducted games and sports, lawful
chastisement or correction, reasonable surgical interference, dangerous
exhibitions, etc. These apparent exceptions can be justified as
involving the exercise of a legal right, in the case of chastisement or
correction, or as needed in the public interest, in the other cases.”
Although the reasoning in these two cases differs somewhat, the conclusion
from each of them is clear, namely, that the infliction of bodily harm without
good reason is unlawful and that the consent of the victim is irrelevant. In the
unreported case of Reg. v. Boyea (28 January 1992), in which the appellant
was convicted of indecent assault on a woman, Glidewell L.J. giving the
judgment of the Court of Appeal (Criminal Division) said:
“The central proposition in Donovan [1934] 2 K.B. 498 is in our view
consistent with the decision of the court in the Attorney General’s
Reference (No. 6 of 1980) [1981] QB 715. That proposition can be
expressed as follows: an assault intended or which is likely to cause
bodily harm, accompanied by indecency, is an offence irrespective of
consent, provided that the injury is not ‘transient or trifling’.”
Glidewell L.J. went on to point out that having regard to the change in social
attitude towards sexual relations “transient and trivial” must be understood in
the light of conditions prevailing in 1992 rather than in 1934.
Before considering whether the above four cases were correctly
decided and if so what relevance they have to these appeals, I must say a
word about hostility. It was urged upon your Lordships that hostility on the
pan of the inflicter was an essential ingredient of assault and that this
ingredient was necessarily lacking when injury was inflicted with the consent
of the receiver. It followed that none of the activities in question constituted
assault. The answer to this submission is to be found in the judgment of the
Court of Appeal in Wilson v. Pringle [1987] QB 237 where it was said, at
p. 253 that hostility could not be equated with ill will or malevolence. The
judgment went on to state:
“Take the example of the police officer in Collins v. Wilcock [1984]
1 W.L.R. 1172. She touched the woman deliberately, but without an
intention to do more than restrain her temporarily. Nevertheless, she
was acting unlawfully and in that way was acting with hostility.”
If the appellant’s activities in relation to the receivers were unlawful they were
also hostile and a necessary ingredient of assault was present.
It was accepted by all the appellants that a line had to be drawn
somewhere between those injuries to which a person could consent to
infliction upon himself and those which were so serious that consent was
immaterial. They all agreed that assaults occasioning actual bodily harm
– 17 –
should be below the line but there was disagreement as to whether all offences
against section 20 of the Act of 1861 should be above the line or only those
resulting in grievous bodily harm. The four English cases to which I have
referred were not concerned with the distinction between the various types of
assault and did not therefore have to address the problem raised in these
appeals. However it does appear that in Donovan, the Attorney General’s
Reference (No. 6 of 1980), and Boyea the infliction of actual bodily harm was
considered to be sufficient to negative any consent. Indeed in Donovan and
Boyea such injuries as were sustained by the two women could not have been
described as in any way serious. Cave J. in Coney also appeared to take the
same view. On the other hand, Stephen J. in Coney appeared to consider that
it required serious danger to life and limb to negative consent, view which
broadly accords with the passage in his digest to which I have already
referred. A similar view was expressed by McInerney J. in the Supreme
Court of Victoria in Pallante v. Stadiums Property Ltd. (No. 1) [1976] V.R.
331.
I prefer the reasoning of Cave J. in Coney and of the Court of Appeal
in the later three English cases which I consider to have been correctly
decided. In my view the line properly falls to be drawn between assault at
common law and the offence of assault occasioning actual bodily harm created
by section 47 of the Offences Against the Person Act 1861, with the result
that consent of the victim is no answer to anyone charged with the latter
offence or with a contravention of section 20 unless the circumstances fall
within one of the well known exceptions such as organised sporting contests
and games, parental chastisement or reasonable surgery. There is nothing in
sections 20 and 47 of the Act of 1861 to suggest that consent is either an
essential ingredient of the offences or a defence thereto. If consent is to be
an answer to a charge under section 47 but not to one under section 20,
considerable practical problems would arise. It was held in Reg. v. Savage
[1992] 1 AC 699 that a verdict of guilty of assault occasioning actual bodily
harm is a permissible alternative verdict on a count alleging unlawful
wounding contrary to section 20 (Lord Ackner at p. 740D). A judge charging
a jury in a section 20 case would therefore not only have to direct them as to
the alternative verdict available under section 47, but also as to the
consequences of consent in relation to that alternative only. Such direction
would be more complex if consent was an answer to wounding under section
20 but not to the infliction of grievous bodily harm under the same section.
These problems would not arise if consent is an answer only to common
assault I would therefore dispose of these appeals on the basis that the
infliction of actual or more serious bodily harm is an unlawful activity to
which consent is no answer. In reaching this conclusion I have not found it
necessary to rely on the fact that the activities of the appellants were in any
event unlawful inasmuch as they amounted to acts of gross indecency which,
not having been committed in private, did not fall within section 1(1) of the
Sexual Offences Act 1967. Notwithstanding the views which I have come to,
– 18 –
I think it right to say something about the submissions that consent to the
activity of the appellants would not be injurious to the public interest.
Considerable emphasis was placed by the appellants on the well-
ordered and secret manner in which their activities were conducted and upon
the fact that these activities had resulted in no injuries which required medical
attention. There was, it was said, no question of proselytising by the
appellants. This latter submission sits ill with the following passage in the
judgment of the Lord Chief Justice:
“They [Laskey and Cadman] recruited new participants: they jointly
organised proceedings at the house where much of this activity took
place; where much of the pain inflicting equipment was stored.
“Cadman was a voyeur rather than a sado-masochist, but both he and
Laskey through their operations at the Horwich premises were
responsible in part for the corruption of a youth “K” to whom the
judge, rightly in our view, paid particular attention. It is some
comfort at least to be told, as we were, that “K” is now it seems
settled into a normal heterosexual relationship.”
Be that as it may, in considering the public interest it would be wrong to look
only at the activities of the appellants alone, there being no suggestion that
they and their associates are the only practitioners of homosexual sado-
masochism in England and Wales. This House must therefore consider the
possibility that these activities are practised by others and by others who are
not so controlled or responsible as the appellants are claimed to be. Without
going into details of all the rather 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 septic
if not properly treated, the free flow of blood from a person who is H.I.V.
positive or who has Aids can infect another and an inflicter who is carried
away by sexual excitement or by drink or drugs could very easily inflict pain
and injury beyond the level to which the receiver had consented. Your
Lordships have no information as to whether such situations have occurred in
relation to other sado-masochistic practitioners. It was no doubt these dangers
which caused Lady Mallalieu to restrict her propositions in relation to the
public interest to the actual rather than the potential result of the activity. In
my view such a restriction is quite unjustified. When considering the public
interest potential for harm is just as relevant as actual harm. As Mathew J.
said in Coney 8 Q.B.D. 534, 547:
“There is however abundant authority for saying that no consent can
render that innocent which is in fact dangerous”.
Furthermore, the possibility of proselytisation and corruption of young men
is a real danger even in the case of these appellants and the taking of video
recordings of such activities suggest that secrecy may not be as strict as the
– 19 –
appellants claimed to your Lordships. If the only purpose of the activity is the
sexual gratification of one or both of the participants what then is the need of
a video recording?
My Lords I have no doubt that it would not be in the public interest
that deliberate infliction of actual bodily harm during the course of
homosexual sado-masochistic activities should be held to be lawful. In
reaching this conclusion I have regard to the information available in these
appeals and of such inferences as may be drawn therefrom. I appreciate that
there may be a great deal of information relevant to these activities which is
not available to your Lordships. When Parliament passed the Sexual Offences
Act 1967 which made buggery and acts of gross indecency between consenting
males lawful it had available the Wolfenden Report (1957) (Cmnd. 247) which
was the product of an exhaustive research into the problem. If it is to be
decided that such activities as the nailing by A of B’s foreskin or scrotum to
a board or the insertion of hot wax into C’s urethra followed by the burning
of his penis with a candle or the incising of D’s scrotum with a scalpel to the
effusion of blood are injurious neither to B, C and D nor to the public interest
then it is for Parliament with its accumulated wisdom and sources of
information to declare them to be lawful.
Two further matters only require to be mentioned. There was
argument as to whether consent, where available, was a necessary ingredient
of the offence of assault or merely a defence. There are conflicting dicta as
to its effect. In Coney Stephen J. referred to consent as “being no defence”,
whereas in Attorney General’s Reference (No. 6 of 1980) [1981] QB 715
Lord Lane C.J. referred to the onus being on the prosecution to negative
consent. In Collins v. Wilcock [1984] 1 W.L.R. 1172, 1177F Goff L.J.
referred to consent being a defence to a battery. If it were necessary, which
it is not, in this appeal to decide which argument was correct I would hold
that consent was a defence to but not a necessary ingredient in assault.
The second matter is the argument that the appellants should have been
charged under the Sexual Offences Act and not under the Act of 1861. The
appellants could within the time limit have been charged under the Act of
1956 with committing acts of gross indecency. However that Act contained
no provision limiting the effect of sections 20 and 47 of the Act of 1861 to
offences unconnected with sex. The Wolfenden Report in considering gross
indecency between males took the view that it usually took one of three forms,
of which none involved the deliberate infliction of injury. Your Lordships
were referred to no material which suggested that Parliament, when enacting
the Act of 1956 had in contemplation the type of activities engaged in by the
appellants. These activities necessarily comprehended acts of gross indecency
as referred to in section 13 of the Sexual Offences Act 1956 and section 1(7)
of the Act of 1967. However, the Wolfenden Report (1957) (Cmnd. 247), at
paragraph 105 states that from police reports seen by the Committee and other
evidence acts of gross indecency usually take one of the three forms in which
none involves violence or injury. The activities of the appellants thus went
– 20 –
far beyond the sort of conduct contemplated by the legislature in the foregoing
statutory provisions and I consider that they were unlawful even when carried
out in private. In these circumstances there exists no reason why the
appellants should not have been charged under the Act of 1861.
I cannot usefully add anything to what my noble and learned friend
Lord Templeman has said in relation to the appellants’ argument on articles
7 and 8 of the European Convention on Human Rights.
My Lords, I would answer the certified question in the negative and
dismiss the appeals.
LORD LOWRY
My Lords,
I have had the advantage of reading in draft the speeches of your
Lordships. I agree with the reasoning and conclusions of my noble and
learned friends, Lord Templeman and Lord Jauncey of Tullichettle and I, too,
would answer the certified question in the negative and dismiss the appeals.
In stating my own further reasons for this view I shall address myself
exclusively to the cases in which, as has been informally agreed, one person
has acted upon another in private, occasioning him actual bodily harm but
nothing worse.
The appellants’ main point is that, contrary to the view of the trial
judge and the Court of Appeal, the consent of the victim, as I shall call the
willing recipient of the sado-masochistic treatment, constitutes a defence to the
charges of assault occasioning actual bodily harm contrary to section 47 of the
Offences Against the Person Act 1861 (“the 1861 Act”) and of wounding
contrary to section 20 of the 1861 Act (no more than actual bodily harm being
occasioned) or, to put it another way, that, when the victim consents, no such
offence of assault or wounding as I have described takes place.
Under the law which formerly held sway (and which has been
thoroughly described and analysed by my noble and learned friend, Lord
Mustill) consent was a defence to a charge of common assault but not to a
charge of mayhem or maiming. Everyone agrees that consent remains a
complete defence to a charge of common assault and nearly everyone agrees
that consent of the victim is not a defence to a charge of inflicting really
serious personal injury (or “grievous bodily harm”). The disagreement
concerns offences which occasion actual bodily harm: the appellants contend
that the consent of the victim is a defence to one charged with such an
– 21 –
offence, while the respondent submits that consent is not a defence. I agree
with the respondent’s contention for reasons which I now explain.
The 1861 Act was one of several laudable but untidy Victorian
attempts to codify different areas of the law. From the accusation of
untidiness I must exempt such measures as the Bills of Exchange Act 1882
and the Sale of Goods Act 1893, but, in regard to the 1861 Act I would adopt
the words of paragraph 7.4 of the Law Commission’s Consultation Paper No.
122 (“L.C. 122”) published in 1992.
“Sections 18, 20 and 47 of the 1861 Act are not part of a
comprehensive legislative code; were not drafted with a view to setting
out the various offences with which they deal in a logical or graded
manner; in some cases do not create offences, but merely state the
punishment for what is regarded as an existing common law offence;
and, above all, in so doing employ terminology that was difficult to
understand even in 1861. The sections are virtually the only
significant part of the extensive series of criminal law statutes passed
in 1861 that still remains on the statute book. Those Acts as a whole
attracted early criticism, not least from Sir (James) Fitzjames Stephen:
‘Their arrangement is so obscure, their language so lengthy and
cumbrous, and they are based upon and assume the existence
of so many singular common law principles that no-one who
was not already well acquainted with the law would derive any
information from reading them.’
“More recent critics have agreed with these strictures describing the
1861 Act as ‘piece-meal legislation’, which is a ‘rag-bag of offences
brought together from a wide variety of sources with no attempt, as
the draftsman frankly acknowledged, to introduce consistency as to
substance or as to form.'”
The 1861 Act has not the form or substance of a true consolidation
but, with acknowledgments to the work of C. S. Greave, Q.C., L.C. 122
traces section 18 of the 1861 Act to section 4 of the Offences Against the
Person Act 1837, (section 20 to section 29 of the Offences Against the Person
Act (Ireland) 1829) (and section 47 to section 29 of the Administration of
Criminal Justice Act 1851). I do not think, however, that it would be helpful
to your Lordships for me to go further back than the 1861 Act itself.
It follows that the indications to be gathered from the 1861 Act are not
precise. Nevertheless, I consider that it contains fairly clear signs that, with
regard to the relevance of the victim’s consent as a defence, assault
occasioning actual bodily harm and wounding which results in actual bodily
harm are not offences “below the line”, to be ranked with common assault as
offences in connection with which the victim’s consent provides a defence, but
offences “above the line”, to be ranked with inflicting grievous bodily harm
– 22 –
and the other more serious offences in connection with which the victim’s
consent does not provide a defence. The sections in question, in their original
form, read as follows:
“18. Whosoever shall unlawfully and maliciously by any means
whatsoever wound or cause any grievous bodily harm to any person,
or shoot at any person, or, by drawing a trigger or in any other
manner, attempt to discharge any kind of loaded arms at any person,
with intent, in any of the cases aforesaid, to maim, disfigure, or
disable any person, or to do some other grievous bodily harm to any
person, or with intent to resist or prevent the lawful apprehension or
detainer of any person, shall be guilty of felony, and being convicted
thereof shall be liable, at the discretion of the court, to be kept in
penal servitude for life or for any term not less than three years, – or
to be imprisoned for any term not exceeding two years, with or
without hard labour, and with or without solitary confinement.
“20. Whosoever shall unlawfully and maliciously wound or inflict
any grievous bodily harm upon any other person, with or without any
weapon or instrument, shall be guilty of a misdemeanour, and being
convicted thereof shall be liable, at the discretion of the court, to be
kept in penal servitude for the term of three years, or to be imprisoned
for any term not exceeding two years, with or without hard labour.
“47. Whosoever shall be convicted upon an indictment of any assault
occasioning actual bodily harm shall be liable at the discretion of the
court to be kept in penal servitude for the term of three years or to be
imprisoned for any term not exceeding two years with or without hard
labour; and whosoever shall be convicted upon an indictment for a
common assault shall be liable, at the discretion of the court, to be
imprisoned for any term not exceeding one year, with or without hard
labour.”
I suggest that the following points should be noted:
-
-
-
Offences against section 18 were felonies, but offences against sections
20 and 47 were misdemeanours. Therefore section 20 was not associated with
section 18 and separated from section 47 by categorisation. -
Although section 47 appears to describe a less serious offence than
section 20, the maximum penalty was the same. Equality was maintained at
five years’ imprisonment after the distinction between felony and
misdemeanour was abolished. -
Wounding is associated in sections 18 and 20 with the infliction of
grievous bodily harm and is naturally thought of as a serious offence, but it
may involve anything from a minor breaking or puncture of the skin to a near
fatal injury. Thus wounding may simply occasion actual bodily harm or it
-
-
– 23 –
may inflict grievous bodily harm. If the victim’s consent is a defence to
occasioning actual bodily harm, then, so far as concerns the proof of guilt, the
line is drawn, as my noble and learned friend, Lord Jauncey of Tullichettle
puts it, “somewhere down the middle of section 20”, which I would regard as
a most unlikely solution.
-
-
-
According to the appellants’ case, if an accused person charged with
wounding relies on consent as a defence, the jury will have to find whether
anything more than actual bodily harm was occasioned, something which is
not contemplated by section 20. -
The distinction between common assault and all other attacks on the
person is that common assault does not necessarily involve any. significant
bodily injury. It is much easier to draw the line between no significant injury
and some injury than to differentiate between degrees of injury. It is also
more logical, because for one person to inflict any injury on another without
good reason is an evil in itself (malum in se) and contrary to public policy. -
That consent is a defence to a charge of common assault is a common
law doctrine which the 1861 Act has done nothing to change.
-
-
The proposition that the line of “victim’s consent” is regarded as drawn
just above common assault gains support from the wording of clause 8(1) of
the Bill attached to L.C. 122 (see paragraph 9.10):
“8(1) A person is guilty of assault if –
(a) he intentionally or recklessly applies force to or causes an
impact on the body of another,
(i) without the consent of the other; or
(ii) where the act is likely or intended to cause injury, with
or without the consent of the other; or
(b) he intentionally or recklessly, without the consent of the other,
causes the other to believe that any such force or impact is
imminent.”
My Lords, on looking at the cases, I get little help from Reg. v. Coney
(1882) 8 Q.B.D. 534, which was much canvassed at the hearing of the appeal
and on which your Lordships, necessarily, have commented. The case
contains a number of inconclusive and sometimes conflicting statements, but
it was generally agreed (the charge being one of common assault) that consent
was no defence to that which amounted to, or had a direct tendency to create,
a breach of the peace. The only support for the present appellants is found
in the judgment of Stephen J., at p. 549:
– 24 –
“In cases where life and limb are exposed to no serious danger in the
common course of things, I think that consent is a defence to a charge
of assault, even when considerable force is used …”
The learned judge developed this view in his Digest of the Criminal Law,
where he stated that consent was a defence to a charge of assault occasioning
actual bodily harm. Archbold adopted that statement, for which there is no
other judicial authority, until it was disapproved in R. v. Donovan [1934] 2
K.B. 498, and the editor of later editions of Stephen’s Digest has abandoned
the distinguished author’s proposition.
In Donovan the appellant had been convicted on two counts, indecent
assault and common assault. The only issue of fact was whether the victim
consented. The chairman of quarter sessions rightly told the jury that the case
depended on the issue of consent. The jury must have rejected the appellant’s
evidence, but the Court of Criminal Appeal held that the chairman had
misdirected the jury as to the burden of proof on the consent issue and
quashed the conviction. It was obvious what had to be done once the court
found misdirection on the vital issue, but it is instructive to note what
happened. Lord Hewart, C.J. is reported in (1934) 25 Cr.App.R. 1, 4, as
saying at the conclusion of argument:
“We have come to the conclusion that this trial, dealing as it did with
a revolting matter, was in various ways unsatisfactory. The court is
compelled, however reluctantly, to take the view that in the
circumstances this conviction cannot safely be upheld and that this
appeal must be allowed. The matter involves, however, more than one
question of importance and we propose therefore to give our reasons
for our decision upon a later day.”
Five weeks later, as reported in [1934] 2 K.B. 498, Swift J. delivered
the judgment of the court, disposing first of the consent issue and another
point. He then dealt with the question which has some relevance to the
present appeals and which he introduced as follows, at p. 506:
“This conclusion would have been enough to dispose of the case were
it not for the fact that the learned counsel for the Crown relied in this
Court upon the submission which he had unsuccessfully made at the
trial, and argued that, this being a case in which it was unnecessary for
the Crown to prove absence of consent, this Court ought not to quash
the conviction.”
A doctor who gave evidence for the Crown had said that marks on the
girl’s body two days after the incident indicated “a fairly severe beating”;
therefore clearly actual bodily harm had been caused. The judgment
continued:
– 25 –
“We have given careful consideration to the question of law which this
submission raises.”
Then, having noted observations of Cave J. in Reg. v. Coney 8 Q.B.D. 334,
the judge said, at p. 507:
“We have considered the authorities upon which this view of the
learned judge was founded, and we think it of importance that we
should state our opinion as to the law applicable in this case. If an act
is unlawful in the sense of being in itself a criminal act, it is plain that
it cannot be rendered lawful because the person to whose detriment it
is done consents to it. No person can license another to commit a
crime. So far as the criminal law is concerned, therefore, where the
act charged is in itself unlawful, it can never be necessary to prove
absence of consent on the part of the person wronged in order to
obtain the conviction of the wrongdoer.” (emphasis supplied).
. . .
“As a general rule, although it is a rule to which there are well
established exceptions, it is an unlawful act to beat another person with
such a degree of violence that the infliction of bodily harm is a
probable consequence, and when such an act is proved, consent is
immaterial. We are aware that the existence of this rule has not
always been clearly recognized. In his Digest of the Criminal Law
(6th ed.), Art. 227, Sir James FitzJames Stephen enunciates the
proposition that ‘everyone has a right to consent to the infliction upon
himself of bodily harm not amounting to a maim.’ This may have
been true in early times when the law of this country showed
remarkable leniency towards crimes of personal violence, but it is a
statement which now needs considerable qualification.”
Having referred to East’s Pleas of the Crown and Foster’s Crown Law,
Swift J. stated, at p. 508:
“If an act is malum in se in the sense in which Sir Michael Foster used
the words, that is to say, is, in itself, unlawful, we take it to be plain
that consent cannot convert it into an innocent act.”
Having then mentioned the “well established exceptions” to the general rule
that an act likely or intended to cause bodily harm is an unlawful act, he
continued, at p. 509:
“In the present case it was not in dispute that the motive of the
appellant was to gratify his own perverted desires. If, in the course
of so doing, he acted so as to cause bodily harm, he cannot plead his
corrupt motive as an excuse, and it may truly be said of him in Sir
Michael Foster’s words that ‘he certainly beat him with an intention
– 26 –
of doing him some bodily harm, he had no other intent,’ and that what
he did was malum in se. Nothing could be more absurd or more
repellent to the ordinary intelligence than to regard his conduct as
comparable with that of a participant in one of those ‘manly
diversions’ of which Sir Michael Foster wrote. Nor is his act to be
compared with the rough but innocent horse-play in Reg. v. Bruce 2
Cox C.C. 262. Always supposing, therefore, that the blows which he
struck were likely or intended to do bodily harm, we are of opinion
that he was doing an unlawful act, no evidence having been given of
facts which would bring the case within any of the exceptions to the
general rule. In our view, on the evidence given at the trial, the jury
should have been directed that, if they were satisfied that the blows
struck by the prisoner were likely or intended to do bodily harm to the
prosecutrix, they ought to convict him, and that it was only if they
were not so satisfied, that it became necessary to consider the further
question whether the prosecution had negatived consent.”
This passage is followed by an explanation why, the question not having been
put to the jury, the court did not feel that, consistently with its practice, it
could uphold the conviction on the ground argued by Crown counsel.
I find this pan of the court’s judgment hard to follow, when I recall
the protest made at his trial by Sir Walter Raleigh to Sir Edward Coke: “The
Crown cannot recover, Mr. Attorney, save secundum allegata et probata.”
This is a universal proposition, not confined to trials of the high and the
mighty for treason. There were two counts in the indictment, to which
consent of the victim was a complete defence. If the jury, properly directed,
had found that consent was not disproved, they must have acquitted the
appellant of the only charges brought against him. How, then, could they
have convicted the appellant of either of those charges or of the offence of
assault, occasioning actual bodily harm, with which he was not charged? It
will not be overlooked that at p. 507 the judgment ran, “where the act charged
is in itself unlawful”.
Does the second part of the Court of Criminal Appeal’s judgment
therefore stand condemned in all respects? My Lords, I suggest not. It
clearly indicates the view of the court that assault, occasioning actual bodily
harm, is malum in se, an offence for which, absent one of the recognised
exceptions, the accused will be convicted, even though the victim consents.
Attorney General’s Reference (No. 6 of 1980) [1981] QB 715 was
relied on by both sides before your Lordships. The charge was one of assault,
occasioning actual bodily harm; the fight, between youths of 18 and 17 years
took place in the street; and the question referred was concerned with fighting
in public. In giving judgment, however, the court expressly made no
distinction between fighting in public and in private.
Lord Lane, C.J. introduced the subject by saying, at p. 718:
– 27 –
“We think that it can be taken as a starting point that it is an essential
element of an assault that the act is done contrary to the will and
without the consent of the victim; and it is doubtless for this reason
that the burden lies on the prosecution to negative consent. Ordinarily,
then, if the victim consents, the assailant is not guilty.”
Then he said (p. 718H):
“Bearing in mind the various cases and the views of the textbook
writers cited to us, and starting with the proposition that ordinarily an
act consented to will not constitute an assault, the question is: at what
point does the public interest require the court to hold otherwise?”
I would concede that the natural way in which to construe these passages is
to the effect that (1) there is no assault if the act is consented to by the victim
and (2) where the victim has consented, a factor directed to the public interest
is needed in order to make the court hold that an offence has been committed.
No doubt this is what caused Professor Glanville Williams in Text book of
Criminal Law 2nd ed. (1983) at pp. 582-589 to express the view that, by
vitiating the effect of the victim’s consent in cases where the occasioning of
physical harm seemed to be against the public interest, the courts were
extending the law against assault and were legislating judicial paternalism.
The Lord Chief Justice then spoke of the need for a “partly new
approach” (compared with that found in Coney and Donovan.) He continued,
at p. 719:
“The answer to this question” [that is, the question, At what point does
the public interest require the court to hold otherwise?], “in our
judgment, is that it is not in the public interest that people should try
to cause, or should cause, each other actual bodily harm for no good
reason. Minor struggles are another matter. So, in our judgment, it
is immaterial whether the act occurs in private or in public; it is an
assault if actual bodily harm is intended and/or caused. This means
that most fights will be unlawful regardless of consent.
“Nothing which we have said is intended to cast doubt upon the
accepted legality of properly conducted games and sports, lawful
chastisement or correction, reasonable surgical interference, dangerous
exhibitions, etc. These apparent exceptions can be justified as
involving the exercise of a legal right, in the case of chastisement or
correction, or as needed in the public interest, in the other cases.
“Our answer to the point of law is No, but not, as the reference
implies, because the fight occurred in a public place, but because,
wherever it occurred, the participants would have been guilty of
assault, subject to self-defence, if, as we understand was the case, they
intended to and or did cause actual bodily harm.”
– 28 –
The appellants submitted that this pronouncement was confined to fighting but,
as Professor Glanville Williams pointed out, the contents of the second
paragraph cited above appear to contradict this view. Thus we are left with
the proposition that it is not in the public interest that people should try to
cause, or should cause, each other actual bodily harm for no good reason and
that it is an assault if actual bodily harm is caused (except for good reason).
This principle was adopted in Reg. v. McCoy [1953(2)] S.A.L.R. 4
(although it was not required in order to decide the case), where the manager
of an airline caned an air hostess, allegedly with her consent, as a punishment
for failing to secure her seat belt when landing, and also by the Court of
Appeal Reg. v. Boyea (28 January 1992 unreported). I think that
consideration of the 1861 Act and the indications to be derived from the cases
together provide strong support for the respondents’ case on the effect of
consent on charges involving actual bodily harm. While saying this, I do not
forget the danger of applying to a particular situation cases decided by judges
who, in reaching their decisions, were not thinking of that situation at all.
Let me now consider the judgment of the Court of Appeal in this case,
reported at [1992] Q.B. 491 and delivered by Lord Lane, C.J. First, I agree
with the disposal, brief as it was, of the appellants’ argument directed to the
word “hostility”. On this point I gladly adopt everything which has been said
by my noble and learned friend Lord Jauncey. I also concur in the summary
dismissal of the argument that it was inappropriate for the Crown to have
proceeded under the 1861 Act. There was a considerable delay and one may
speculate that the prosecuting authorities had cast around for a suitable vehicle
for their accusations before finally deciding to proceed under the 1861 Act in
this unusual case, but the only way of meeting these charges otherwise than
on the merits was to contend that they amounted to an abuse of process. This
procedure was not resorted to, which is not surprising in the state of the
authorities.
Predictably, the appeal and the judgment in the Court of Appeal were
mainly occupied with the effect of the victim’s consent (p. 497B et seq.).
Having cited Donovan [1934] 2 K.B. 498, Lord Lane, C.J. drew attention to
Kenny’s Outlines of Criminal Law (p. 499E) and Archbold (p. 499G) and went
on to consider Attorney General’s Reference (No. 6 of 1980) [1981] QB 715.
Commenting on p. 719, he said (p. 500B):
“What may be ‘good reason’ it is not necessary for us to decide. It is
sufficient to say, so far as the instant case is concerned, that we agree
with the trial judge that the satisfying of sado-masochistic libido does
not come within the category of good reason nor can the injuries be
described as merely transient or trifling.”
In the immediately following paragraph of his judgment the Lord Chief Justice
shows that what he said in Attorney General’s Reference (No. 6 of 1980) was
intended by him to be of general application:
– 29 –
“It was submitted to us that the facts in that case were no different
from those in the instant case that the principle which is expressed in
the answer to the Attorney-General’s question does not apply to the
present circumstances. We disagree. In our judgment the principle as
expressed in Attorney General’s Reference (No. 6 of 1980) [1981] Q.B.
715 does apply. Consequently for those reasons the question of
consent was immaterial. The judge’s ruling was accordingly correct.”
If, as I, too, consider, the question of consent is immaterial, there are
prima facie offences against sections 20 and 47 and the next question is
whether there is good reason to add sado-masochistic acts to the list of
exceptions contemplated in Attorney-General’s Reference. In my opinion, the
answer to that question is “No”.
In adopting this conclusion I follow closely my noble and learned
friends Lord Templeman and Lord Jauncey. What the appellants are obliged
to propose is that the deliberate and painful infliction of physical injury should
be exempted from the operation of statutory provisions the object of which is
to prevent or punish that very thing, the reason for the proposed exemption
being that both those who will inflict and those who will suffer the injury wish
to satisfy a perverted and depraved sexual desire. Sado-masochistic
homosexual activity cannot be regarded as conducive to the enhancement or
enjoyment of family life or conducive to the welfare of society. A relaxation
of the prohibitions in sections 20 and 47 can only encourage the practice of
homosexual sado-masochism and the physical cruelty that it must involve
(which can scarcely be regarded as a “manly diversion”) by withdrawing the
legal penalty and giving the activity a judicial imprimatur. As well as all this,
one cannot overlook the physical danger to those who may indulge in sado-
masochism. In this connection, and also generally, it is idle for the appellants
to claim that they are educated exponents of “civilised cruelty”. 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 powerful influence of the sexual instinct, will get out of hand and result
in serious physical damage to the participants and that some activity will
involve a danger of infection such as these particular exponents do not
contemplate for themselves. 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,
subject to conditions, legalised buggery, now a well-known vehicle for the
transmission of AIDS.
So far as I can see, the only counter-argument is that to place a
restriction on sado-masochism is an unwarranted interference with the private
life and activities of persons who are indulging in a lawful pursuit and are
doing no harm to anyone except, possibly, themselves. This approach, which
has characterised every submission put forward on behalf of the appellants,
is derived from the fallacy that what is involved here is the restraint of a
lawful activity as opposed the refusal to relax existing prohibitions in the 1861
– 30 –
Act. If in the course of buggery, as authorised by the 1967 Act, one
participant, either with the other participant’s consent or not, deliberately
causes actual bodily harm to that other, an offence against section 47 has been
committed. The 1967 Act provides no shield. The position is as simple as
that, and there is no legal right to cause actual bodily harm in the course of
sado-masochistic activity.
As your Lordships have observed, the appellants have sought to fortify
their argument by reference to the European Convention on Human Rights.
On the view which I have taken, Article 7 has no relevance since the question
of retrospective legislation or a retrospective judicial decision does not arise.
Article 8.1 of the Convention states that everyone has the right to
respect for his private and family life, his home and his correspondence. The
attempts to rely on this article is another example of the appellants’ reversal
of the onus of proof of legality, which disregards the effect of sections 20 and
47. I would only say, in the first, place, that article 8 is not part of our law.
Secondly, there has been no legislation which, being post-Convention and
ambiguous, falls to be construed so as to conform with the Convention rather
than to contradict it. And thirdly, 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 1861 Act. 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 in them.
For all these reasons I would answer “No” to the certified question and
would dismiss the appeals.
LORD MUSTILL
My Lords.
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. Right or wrong, the point is easily made. The speeches
already delivered contain summaries of the conduct giving rise to the charges
under the Offences Against the Person Act 1861 now before the House,
together with other charges in respect of which the appellants have been
sentenced, and no longer appeal. Fortunately for the reader my Lords have
not gone on to describe other aspects of the appellants’ behaviour of a similar
but more extreme kind which was not the subject of any charge on the
indictment. It is sufficient to say that whatever the outsider might feel about
the subject-matter of the prosecutions – perhaps horror, amazement or
incomprehension, perhaps sadness – very few could read even a summary of
the other activities without disgust. The House has been spared the video
– 31 –
tapes, which must have been horrible. If the criminality of sexual deviation
is the true ground of these proceedings, one would have expected that these
above all would have been the subject of attack. Yet the picture is quite
different.
The conduct of the appellants and of other co-accused was treated by
the prosecuting authorities in three ways. First, there were those acts which
fell squarely within the legislation governing sexual offences. These are easily
overlooked, because attention has properly been concentrated on the charges
which remain in dispute, but for a proper understanding of the case it is
essential to keep them in view. Thus, four of the men pleased guilty either
as principals or as aiders and abettors to the charges of keeping a disorderly
house. It is worth setting out, with abbreviations, the particulars of a typical
charge:
“GWC on divers days between the 1st day of January 1979 and the 5th
day of November 1987 at . . . Bolton kept a disorderly house to which
numerous persons resorted in order to take part in, and who did take
part in, acts of sadistic and masochistic violence, and in accompanying
acts of lewd, immoral and unnatural kind. IW, PJG, COLIN
LASKEY and PJK at the same times and at the same place did aid,
abet, counsel and procure GWH to commit the said offence.”
Laskey also pleaded guilty to two counts of publishing an obscene article.
The articles in question were video-tapes of the activities which formed the
subject of some of the counts laid under the Act of 1861.
The pleas of guilty to these counts, which might be regarded as dealing
quite comprehensively with those aspects of Laskey’s sexual conduct which
impinged directly on public order attracted sentences of four years reduced on
appeal to eighteen months imprisonment and three months imprisonment
respectively. Other persons, not before the House, were dealt with in a
similar way.
The two remaining categories of conduct comprised private acts. Some
were prosecuted and are now before the House. Others, which I have
mentioned, were not. 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.
Whereas the sexual conduct which underlies the present appeals, although less
extreme, could at least arguably be brought within sections 20 and 47 of the
1861 Act because it involved the breaking of skin and the infliction of more
than trifling hurt.
I must confess that this distribution of the charges against the
appellants at once sounds a note of warning. It suggests that the involvement
– 32 –
of the Act of 1861 was adventitious. This impression is reinforced when one
considers the tide of the statute under which the appellants are charged,
“Offences against the Person”. 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
fact, quite the reverse. Of course we must give effect to the statute if its
words capture what the appellants have done, but in deciding whether this is
really so it in my opinion legitimate to assume that the choice of the Offences
against the Person Act as the basis for the relevant counts in the indictment
was made only because no other statute was found which could conceivably
be brought to bear upon them.
In these circumstances I find it easy to share the opinion expressed by
Wills J. in Reg. v. Clarence (1888) 22 Q.B.D. 23, a case where the accused
had consensual intercourse with his wife, he knowing and she ignorant that he
suffered from gonorrhoea, with the result that she was infected. The case is
of general importance, since the Court for Crown Cases Reserved held that
there was no offence under sections 47 and 20, since both sections required
an assault, of which the wound or grievous bodily harm was the result, and
that no assault was disclosed on the facts. For present purposes, however, I
need only quote from the report, at p. 30:
” . . . such considerations lead one to pause on the threshold, and
enquire whether the enactment under consideration could really have
been intended to apply to circumstances so completely removed from
those which are usually understood when an assault is spoken of, or to
deal with matters of any kind involving the sexual relation or act.”
I too am led to pause on the threshold. Asking myself the same question, I
cannot but give a negative answer. I therefore approach the appeal on the
basis that the convictions on charges which seem to me so inapposite cannot
be upheld unless the language of the statute or the logic of the decided cases
positively so demand. Unfortunately, as the able arguments which we have
heard so clearly demonstrate, the language of the statute is opaque, and the
cases few and unhelpful. To these I now turn.
I THE DECIDED CASES
Throughout the argument of the appeal I was attracted by an analysis
on the following lines. First, one would construct a continuous spectrum of
the infliction of bodily harm, with killing at one end and a trifling touch at the
other. Next, with the help of reported cases one would identify the point on
this spectrum at which consent ordinarily ceases to be an answer to a
prosecution for inflicting harm. This could be called “the critical level”. It
would soon become plain however that this analysis is too simple and that
– 33 –
I
there are certain types of special situation to which the general rule does not
apply. Thus, for example, surgical treatment which requires a degree of
bodily invasion well on the upper side of the critical level will nevertheless be
legitimate if performed in accordance with good medical practice and with the
consent of the patient. Conversely, there will be cases in which even a
moderate degree of harm cannot be legitimated by consent. Accordingly, the
next stage in the analysis will be to identify those situations which have been
identified as special by the decided cases, and to examine them to see whether
the instant case either falls within one of them or is sufficiently close for an
analogy to be valid. If the answer is negative, then the court will have to
decide whether simply to apply the general law simply by deciding whether
the bodily harm in the case under review is above or below the critical level,
or to break new ground by recognising a new special situation to which the
general law does not apply.
For all the intellectual neatness of this method I must recognise that it
will not do. for it imposes on the reported cases and on the diversities of
human life an order which they do not possess. Thus, when one comes to
map out the spectrum of ordinary consensual physical harm, to which the
special situations form exceptions, it is found that the task is almost
impossible, since people do not ordinarily consent to the infliction of harm.
In effect, either all or almost all the instances of the consensual infliction of
violence are special. They have been in the past, and will continue to be in the
future, the subject of special treatment by the law.
There are other objections to a general theory of consent and violence.
Thus, for example, it is too simple to speak only of consent, for it comes in
various sons. Of these, four spring immediately to mind. First, there is an
express agreement to the infliction of the injury which was in the event
inflicted. Next, there is express agreement to the infliction of some harm, but
not to that harm which in the event was actually caused. These two categories
are matched by two more, in which the recipient expressly consents not to the
infliction of harm, but to engagement in an activity which creates a risk of
harm: again, either the harm which actually results, or to something less.
These examples do not exhaust the categories, for corresponding with each are
situations of frequent occurrence in practice where the consent is not express
but implied. These numerous categories are not the fruit of academic over-
elaboration, but are a reflection of real life. Yet they are scarcely touched on
in the cases, which just do not bear the weight of any general theory violence
and consent.
Furthermore, when one examines the situations which are said to found
such a theory it is seen that the idea of consent as the foundation of a defence
has in many cases been forced on to the theory, whereas in reality the reason
why the perpetrator of the harm is not liable is not because of the recipient’s
consent, but because the perpetrator has acted in a situation where the consent
of the recipient forms one, but only one, of the elements which make the act
legitimate. This concept is clearly expressed in the following extract from the
– 34 –
judgment of my noble and learned friend Lord Goff of Chieveley in Collins
v. Wilcock [1984] 1 W.L.R. 1172, at pp. 1177:
“We are here concerned primarily with battery. The fundamental
principle, plain and incontestable, is that every person’s body is
inviolate. It has long been established that any touching of another
person, however slight, may amount to a battery.” So Holt C.J. held
in Cole v. Turner (1704) 6 Mod. 149 that “the least touching of
another in anger is a battery.” The breadth of the principle reflects the
fundamental nature of the interest so protected. As Blackstone wrote
in his Commentaries, 17th ed. (1830), vol. 3, p. 120:
“the law cannot draw the line between different degrees of violence,
and therefore totally prohibits the first and lowest stage of it; every
man’s person being sacred, and no other having a right to meddle with
it, in any the slightest manner.”
The effect is that everybody is protected not only against physical
injury but against any form of physical molestation.
“But so widely drawn a principle must inevitably be subject to
exceptions. For example, children may be subjected to reasonable
punishment; people may be subjected to the lawful exercise of the
power of arrest; and reasonable force may be used in self-defence or
for the prevention of crime. But, apart from these special instances
where the control or constraint is lawful, a broader exception has been
created to allow for the exigencies of everyday life. Generally
speaking, consent is a defence to battery; and most of the physical
contacts of ordinary life are not actionable because they are impliedly
consented to by all who move in society and so expose themselves to
the risk of bodily contact. So nobody can complain of the jostling
which is inevitable from his presence in, for example, a supermarket,
an underground station or a busy street; nor can a person who attends
a party complain if his hand is seized in friendship, or even if his back
is, within reason, slapped: see Tuberville v. Savage (1669) 1 Mod. 3.
Although such cases are regarded as examples of implied consent, it
is more common nowadays to treat them as falling within a general
exception embracing all physical contact which is generally acceptable
in the ordinary conduct of daily life. We observe that, although in the
past it has sometimes been stated that a battery is only committed
where the action is ‘angry, revengeful, rude, or insolent’ (see
Hawkins, Pleas of the Crown, 8th ed. (1824), vol. 1, e. 15, section 2),
we think that nowadays it is more realistic, and indeed more accurate,
to state the broad underlying principle, subject to the broad exception.”
In these circumstances I must accept that the existing case-law does not
sustain a step-by step analysis of the type proposed above. This being so I
have considered whether there is some common feature of those cases in
– 35 –
which consent has been held ineffectual whose presence or absence will
furnish an immediate solution when the court is faced with a new situation.
The only touchstone of this kind suggested in argument was the notion of
“hostility” without which, as Mr. Kershen Q.C. maintained, no offence of
violence can be made out. This argument, which equates hostility with
antagonism, is attractive because antagonism felt by the perpetrator against the
recipient, and expressed in terms of violence, is present in the great majority
of the offences dealt with by the courts under the Act of 1861. Nevertheless
I cannot accept it as a statement of the existing law which leads automatically
to a conclusion on the present appeals. It is true that counsel was able to cite
a series of cases on indecent conduct with consenting children, beginning with
Fairclough v. Whipp [1951] 2 All. E.R. 832 in which the absence of hostility
formed a ground for holding that indecent assaults were not proved. It is
however clear to my mind that whatever precise meaning the word was
intended to bear in the judgments there delivered it must have been different
from the one for which Mr. Kershen now contends. The facts were far
removed from the present, for the accused persons did nothing to the children
but merely persuaded them to do certain acts. They used no force, nor
inflicted any physical harm. It is not surprising that no assault was made out,
and the decisions do no more than furnish a useful reminder of the care to be
taken before punishing repugnant sexual conduct under laws aimed at
violence. Furthermore this theory does not fit the situations at the upper end
of the scale. The doctor who hastens the end of a patient to terminate his
agony acts with the best intentions, and quite without hostility to him in any
ordinary sense of the word, yet there is no doubt that notwithstanding the
patient’s consent he is guilty of murder. Nor has it been questioned on the
argument of the present appeal that someone who inflicts serious harm,
because (for example) he is inspired by a belief in the efficacy of a pseudo-
medical treatment, or acts in conformity with some extreme religious tenet,
is guilty of an offence notwithstanding that he is inspired only by a desire to
do the best he can for the recipient. Hostility cannot, as it seems to me, 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.
I thus see no alternative but to adopt a much narrower and more
empirical approach, by looking at the situations in which the recipient
consents or is deemed to consent to the infliction of violence upon him, to see
whether the decided cases teach us how to react to this new challenge. I will
take them in turn.
1. Death
With the exception of a few exotic specimens which have never come
before the courts, euthanasia is in practice the only situation where the
recipient expressly consents to being killed. As the law stands today,
consensual killing is murder. Why is this so? Professor Glanville Williams
suggests (Text book of Criminal Law, 2nd ed., (1983) pp. 579-580) that the
– 36 –
arguments in support are transcendental, and I agree. Believer or atheist, the
observer grants to the maintenance of human life an overriding imperative, so
strong as to outweigh any consent to its termination. Some believers and some
atheists now dissent from this view, but the controversy as to the position at
common law does not illuminate our present task, which is to interpret a
statute which is aimed at non-lethal violence.
Nor is anything gained by study of duelling, an activity in which the
recipient did not consent to being killed (quite the reverse) but did consent to
running the risk. The nineteenth century authorities were not too concerned
to argue the criminality of the practice as between principals, but to stamp
out this social evil by involving in the criminality those others, such as
seconds and surgeons, who helped to perpetuate it. A series of Nineteenth
Century cases, such as Rex. v. Rice (1803) 3 East 581, reiterated that the
dueller who inflicted the fatal wound was guilty of murder, whether he was
the challenger or not, and regardless of the fact that the deceased willingly
took the risk but by then it was already very old law – certainly as old as Rex
v. Taverner (1619) 3 Bulstr. 171 where Coke C.J. and Croke J expounded
the heinousness of the offence with copious reference to the ancients and to
Holy Scripture. Killing in cold blood was the sin of Cain, and that was that.
There is nothing to help us here.
2. Maiming.
The act of maiming consisted of “. . . such a hurt of any part of a
man’s body whereby he is rendered less able, in fighting either to defend
himself or to annoy his adversary . . . ” (Hawkins Pleas of the Crown, 8th
ed., vol. 1, ch. 15, p. 107). Maiming was a felony at common law. Self-
maiming was also a crime, and consent was no defence to maiming by
another. Maiming was also, in certain circumstances, a statutory offence under
a series of Acts, now repealed, beginning with the so-called “Coventry Act”.
and continuing as part of a more general prohibition of serious offences
against the person until an Act of 1803, 43 Geo. 3 c. 58. Then it seems to
have disappeared. There is no record of anyone being indicted for maim in
modern times, and I doubt whether maiming would have been mentioned in
the present case but for the high authority of Sir James Fitzjames Stephen who
as late as 1883, in article 206 of the third edition of his Digest of the Criminal
Law, stated that – “Every one has a right to consent to the infliction upon
himself of bodily harm not amounting to a maim.” No reported decision or
statute was cited in support of this proposition, and the reasoning (according
to a footnote) rested upon the assertion that below the level of maiming an
injury was no more than an assault, to which consent was a defence.
My Lords, I cannot accept that this antique crime any longer marks a
watershed for the interrelation of violence and consent. In the first place the
crime is obsolete. The Act of 1861 says nothing about it, as it must have done
if Parliament had intended to perpetuate maiming as a special category of
offence. Furthermore, the rationale of maiming as a distinct offence is now
– 37 –
quite out of date. Apparently the permanent disablement of an adult male was
criminal because it cancelled him as a fighting unit in the service of his king.
I think it impossible to apply this reasoning to the present case.
Finally, the practical results of holding that maim marks the level at
what consent ceases to be relevant seem to me quite unacceptable. The point
cannot be better made that in terms of the only illustration given by Stephen
J. in article 206 of his work. “It is a maim to strike out a front tooth. It is not
a maim to cut off a man’s nose.” Evidently consent would be a defence in the
latter instance, but not in the former. This not in my view a sound basis for
a modern law of violence.
3. Prizefighting, sparring and boxing.
Far removed as it is from the present appeal, I must take a little time
over prizefighting, for it furnishes in Reg. v. Coney (1882) 8 Q.B.D 534 one
of the very few extended judicial analyses of the relationship between violence
and consent. By the early part of the Nineteenth Century it was firmly
established that prizefighting was unlawful notwithstanding the consent of the
fighters. It nevertheless continued to flourish. It is therefore not surprising to
find that the few and meagrely reported early cases at nisi prius were
concerned with the efforts of the courts to stamp out the practice by
prosecuting those who were thought to encourage it by acting as seconds or
promoters, or just by being present. Although it was at that stage taken for
granted that the activity was criminal per se, it is significant that in almost all
the cases the accused were charged with riot, affray or unlawful assembly,
and that emphasis was given to the tendency of prizefights to attract large and
unruly crowds. We encounter the same theme when at a later stage, in cases
such as Coney, Reg. v. Young (1866) 10 Cox C.C. 371 and Reg. v. Orton
(1878) 39 L.T. 293, the courts were forced to rationalise the distinction
between prizefighting (unlawful) and sparring between amateurs (lawful). Of
these cases much the most important was Coney 8 Q.B.D. 534. Burke and
Mitchell fought in a ring of posts and ropes on private land a short distance
from a highway. Upwards of one hundred people were present. There was
no evidence that the fight was for money or reward. Coney, Gilliam and Tully
were in the crowd. Originally, Burke, Mitchell, and three spectators and
others who did not appeal were charged under an indictment which contained
counts against all the accused for riot and other offences against public order,
but these were dropped and the trial proceeded on two counts alone, one
alleging (against all the accused except Burke) a common assault upon Burke,
and the other a kindred count relating to Mitchell. The chairman of quarter
sessions left to the jury the question whether this was a prize-fight, with a
direction that if so it was illegal and an assault. He also directed that all
persons who go to a prize-fight to see the combatants strike each other and
who are present when they do so are guilty of an assault. The jury convicted
all the accused. The chairman stated for decision by the Court of Crown Cases
Reserved the question whether in relation to the three last-named accused his
direction was right.
– 38 –
Two issues arose. First, whether the fighting between Burke and
Mitchell was an assault. If it was not, none of the accused were guilty of any
offence. Second, whether the direction as to the participation of the other
three appellants as aiders and abettors was correct. The court was divided on
the second issue. But on the first all the judges were agreed that if the
proceedings constituted a prize-fight then Burke and Mitchell were guilty of
assault irrespective of the fact that they had agreed to fight.
Even at first sight it is clear that this decision involved something out
of the ordinary, for the accused were charged, not with any of the serious
offences of violence under the Act of 1861 but with common assault; and as
all concerned in the argument of the present appeal have agreed, in common
with the judges in Coney itself, consent is usually a defence to such a charge.
Furthermore it seems that the degree of harm actually inflicted was thought
to be immaterial, for no reference was made to it in the case stated by
quarter sessions or (except tangentially) in the judgments of the court. What
then was the basis for holding that a prize-fight stood outside the ordinary
rules of criminal violence? Of the eleven judges only five went further than
to say that the law was well-established. Their reasons were as follows-
1. Prize-fighting is a breach of the peace. The parties may consent to the
infliction of blows as a civil wrong, but cannot prevent a breach of the peace
from being criminal. Per Cave J. at p. 538 of the report, and Stephen J.,
Hawkins J., and Lord Coleridge C.J. at pp. 549, 553 and 567 respectively.
As Stephen J. put it, prizefights were “disorderly exhibitions mischievous on
many obvious grounds”.
-
-
-
The participants are at risk of suffering ferocity and severe
punishment, dreadful injuries and endangerment of life, and are encouraged
to take the risk by the presence of spectators. It is against the public interest
that these risks should be run, whether voluntarily or not. Per Cave and
Mathew JJ., at pp. 539 and 544. -
Fists are dangerous weapons like pistols, and prizefighting should be
proscribed for the same reasons as duelling. Per Mathew J. at p. 547.
-
-
My Lords, there is nothing here to found a general theory of
consensual violence. The court simply identifies a number of reasons why as
a matter of policy a particular activity of which consent forms an element
should found a conviction for an offence where the level of violence falls
below what would normally be the critical level. As Stephen J. made clear 8
Q.B.D. 534, 549, the question whether considerations of policy are strong
enough to take the case outside the ordinary law depends on whether “the
injury is of such nature or is inflicted under such circumstances that its
infliction is injurious to the public”. Speaking of duels, Bramwell L.J. was
later to say (in Reg. v. Bradshaw (1878) 14 Cox C.C. 83, 84-85): “No person
can by agreement go out to fight with deadly weapons, doing by agreement
what the law savs shall not be done, and thus shelter themselves from the
– 39 –
consequences of their acts.” (Emphasis added). Precisely the same reliance on
an empirical or intuitive reference to public policy in substitution for any
theory of consent and violence are seen in discussions of amateur sparring
with fists and other sports which involve the deliberate infliction of harm.
The matter is put very clearly in East, Pleas of the Crown, (1803) vol. 1, ch.
v, paras. 41 and 42, pp. 268-270:
” . . . If death ensue from such [sports] as are innocent and
allowable, the case will fall within the rule of excusable
homicide; but if the sport be unlawful in itself or productive of
danger, riot, or disorder, from the occasion, so as to endanger
the peace, and death ensue; the party killing is guilty of
manslaughter. . . . Manly sports and exercises which tend to
give strength, activity and skill in the use of arms, and are
entered into merely as private recreations among friends, are
not unlawful; and therefore persons playing by consent at
cudgels, or foils, or wrestling are excusable if death ensue. For
though doubtless it cannot be said that such exercises are
altogether free from danger; yet they are very rarely attended
with fatal consequences; and each party has friendly warning
to be on his guard. And if the possibility of danger were the
criterion by which the lawfulness of sports and recreations was
to be decided, many exercises must be proscribed which are in
common use, and were never heretofore deemed unlawful. . .
. But the latitude given to manly exercises of the nature above
described, when conducted merely as diversions among friends,
must not be extended to legalise prize-fighting, public boxing
matches and the like, which are exhibited for the sake of lucre,
and are calculated to draw together a number of idle disorderly
people…And again, such meetings have a strong tendency in
their nature to a breach of the peace..”
In his work on Crown Law, 3rd ed. (1809) p. 230, Sir Michael Foster
put the matter in a similar way when he distinguished beneficial recreations
such as single-stick fighting from
“prize-fighting and ….other exertions of courage, strength and activity
. .which are exhibited for lucre, and can serve no valuable purpose, but
on the contrary encourage a sprit of idleness and debauchery”.
Thus, although consent is present in both cases the risks of serious
violence and public disorder make prize-fighting something which “the law
says shall not be done”, whereas the lesser risk of injury, the absence of the
public disorder, the improvement of the health and skills of the participants,
and the consequent benefit to the public at large combine to place sparring
into a different category, which the law says “may be done”.
– 40 –
That the court is in such cases making a value-judgment, not dependant
upon any general theory of consent is exposed by the failure of any attempt
to deduce why professional boxing appears to be immune from prosecution.
For money, not recreation or personal improvement, each boxer tries to hurt
the opponent more than he is hurt himself, and aims to end the contest
prematurely by inflicting a brain injury serious enough to make the opponent
unconscious, or temporarily by impairing his central nervous system through
a blow to the midriff, or cutting his skin to a degree which would ordinarily
be well within the scope of section 20. The boxers display skill, strength and
courage, but nobody pretends that they do good to themselves or others. The
onlookers derive entertainment, but none of the physical and moral benefits
which have been seen as the fruits of engagement in manly sports. I intend no
disrespect to the valuable judgment of McInearny J. in Pallante v. Stadiums
Pty. [1976] V.R. 331 when I say that the heroic efforts of that learned judge
to arrive at an intellectually satisfying account of the apparent immunity of
professional boxing from criminal process have convinced me that the task is
impossible. It is in my judgment best to regard this as another special situation
which for the time being stands outside the ordinary law of violence because
society chooses to tolerate it.
4. “Contact” sports.
Some sports, such as the various codes of football, have deliberate
bodily contact as an essential element. They lie at a mid-point between
fighting, where the participant knows that his opponent will try to harm him,
and the milder sports where there is at most an acknowledgement that
someone may be accidentally hurt. In the contact sports each player knows
and by taking part agrees that an opponent may from time to time inflict upon
his body (for example by a rugby tackle) what would otherwise be a painful
battery. By taking part he also assumes the risk that the deliberate contact may
have unintended effects, conceivably of sufficient severity to amount to
grievous bodily harm. But he does not agree that this more serious kind of
injury may be inflicted deliberately. This simple analysis conceals a number
of difficult problems, which are discussed in a series of Canadian decisions,
culminating in Reg. v. Ciccarelli (1989) 54 C.C.C. (3d), 121, on the subject
of ice hockey, a sport in which an ethos of physical contact is deeply
entrenched. The courts appear to have started with the proposition that some
level of violence is lawful if the recipient agrees to it, and have dealt with the
question of excessive violence by enquiring whether the recipient could really
have tacitly accepted a risk of violence at the level which actually occurred.
These decisions do not help us in the present appeal, where the consent of the
recipients was express, and where it is known that they gladly agreed, not
simply to some degree of harm but to everything that was done. What we
need to know is whether, notwithstanding the recipient’s implied consent,
there comes a point at which it is too severe for the law to tolerate. Whilst
common sense suggests that this must be so, and that the law will not license
brutality under the name of sport, one of the very few reported indications of
the point at which tolerable harm becomes intolerable violence is in the
– 41 –
direction to the jury given by Bramwell B. in Bradshaw 14 Cox C.C. 83 that
the act (in this case a charge at football) would be unlawful if intended to
cause “serious hurt”. This accords with my own instinct, but I must recognise
that a direction at nisi prius, even by a great judge, cannot be given the same
weight as a judgment on appeal, consequent upon full argument and reflection.
The same comment may be made about Reg. v. Moore (1898) 14 T.L.R.
229.
5. Surgery.
Many of the acts done by surgeons would be very serious crimes if
done by anyone else, and yet the surgeons incur no liability. Actual consent,
or the substitute for consent deemed by the law to exist where an emergency
creates a need for action, is an essential element in this immunity; but it
cannot be a direct explanation for it, since much of the bodily invasion
involved in surgery lies well above any point at which consent could even
arguably be regarded as furnishing a defence. Why is this so? The answer
must in my opinion be that proper medical treatment, for which actual or
deemed consent is a pre-requisite. is in a category of its own.
6. Lawful correction.
It is probably still the position at common law, as distinct from statute,
that a parent or someone to whom the parent has delegated authority may
inflict physical hurt on his or her child, provided that it does not go too far
and is for the purpose of correction and not the gratification of passion or
rage. See Reg. v. Conner (1835) 7 C. & P. 438; Rex. v. Cheeseman (1836)
7 C. & P. 455; Reg. v. Hopley (1860) 2 F.& F. 202; Reg. v. Griffin (1869)
11 Cox C.C. 402. These cases have nothing to do with consent, and are useful
only as another demonstration that specially exempt situations can exist and
that they can involve an upper limit of tolerable harm.
7. Dangerous pastimes: bravado: mortification.
For the sake of completeness I should mention that the list of
situations in which one person may agree to the infliction of harm, or to the
risk of infliction of harm, by another includes dangerous pastimes, bravado
(as where a boastful man challenges another to try to hurt him with a blow)
and religious mortification. These examples have little in common with one
another and even less with the present case. They do not appear to be
discussed in the authorities although dangerous pastimes are briefly mentioned
and I see no advantage in exploring them here.
8. Rough horseplay.
The law recognises that community life (and particularly male
community life), such as exists in the school playground, in the barrack-room
and on the factory floor, may involve a mutual risk of deliberate physical
– 42 –
contact in which a particular recipient (or even an outsider, as in Reg. v.
Bruce (1847) 2 Cox C.C. 262) may come off worst, and that the criminal law
cannot be too tender about the susceptibilities of those involved. I think it
hopeless to attempt any explanation in terms of consent. This is well
illustrated by Reg. v. Terence Jones (1986) 83 Cr.App.R. 375. The injured
children did not consent to being thrown in the air at all, nor to the risk that
they might be thrown so high as to cause serious injury. They had no choice.
Once again it appears to me that as a matter of policy the courts have decided
that the criminal law does not concern itself with these activities, provided that
they do not go too far. It also seems plain that as the general social
appreciation of what is tolerable and of the proper role of the state in
regulating the lives of individuals changes with the passage of time, so we
shall expect to find that the assumptions of the criminal justice system about
what types of conduct are properly excluded from its scope, and about what
is meant by going “too far”, will not remain constant.
9. Prostitution.
Prostitution may well be the commonest occasion for the voluntary
acceptance of the certainty, as distinct from the risk, of bodily harm. It is
very different from the present case. There is no pretence of mutual
affection. The prostitute, as beater or beaten, does it for money. The dearth
of reported decisions on the application of the 1861 Act clearly shows how the
prosecuting authorities have (rightly in my view) tended to deal with such
cases, if at all, as offences against public order. Only in Rex. v. Donovan
[1934] 2 K.B. 498, amongst the English cases, has the criminality of sexual
beating been explored.
The facts were as follows. The accused met the complainant and
immediately asked her “Where would you like to have your spanking, in Hyde
Park or in my garage?”. Previous telephone conversations had made it clear
that he wanted to beat her for sexual gratification. She went with him to his
garage, where he caned her in a manner which left seven or eight marks
indicative, as a medical witness said, of “a fairly severe beating”. He was
charged with indecent assault and common assault. The defence was that the
girl consented and that it was for the prosecution to prove that she did not.
The chairman of quarter sessions directed the jury that the vital issue was
“consent or no consent”, apparently without giving any guidance on burden
of proof. After retiring for an hour the jury asked a question about reasonable
belief and consent, which again the chairman answered without reference to
burden of proof.
The Court of Criminal Appeal (Lord Hewart C.J., and Swift and du
Parcq JJ.). quashed the conviction. The fell into two entirely distinct parts.
The first was concerned with the direction on consent and proceeded on the
footing that consent was material to guilt and that the burden was on the
crown to disprove it. This part of the judgment concluded, at p. 506
– 43 –
“It is, in our view, at least possible that [a correct direction]
would have resulted in the acquittal of the appellant, and we
are, therefore, compelled to come to the conclusion… that the
trial was not satisfactory.”
On the face of it this conclusion was fatal to the conviction, but the
court went on to consider an argument for the Crown that this was not so,
because on the facts the striking of the girl was not an act for which consent
afforded a defence; so that the absence of a proper direction upon it made no
difference. On this question the court held that it was for the jury to decide
whether the situation was such that the consent of the girl was immaterial, and
that since the issue had never been left to the jury and the trial had proceeded
on the footing that consent was the key to the case, the appeal ought to be
decided on the same basis. Accordingly, the direction on consent being
unsatisfactory the conviction must be quashed.
How did the court arrive at the opinion that there was an issue for the
jury which ought to have been tried? As I understand it the course of
reasoning was as follows-
1. On the basis of a statement of Cave J. in Coney 8 Q.B.D. 534
and the old authorities on which it was founded the court was of the
opinion (p. 507) that -“If an act is unlawful in the sense of being in
itself a criminal act, it is plain that it cannot be rendered lawful
because the person to whose detriment it is done consents to it. No
person can license another to commit a crime. So far as the criminal
law is concerned, therefore, where the act charged is in itself
unlawful, it can never be necessary to prove absence of consent on the
part of the person wronged in order to obtain the conviction of the
wrongdoer.”
2. “There are, however, many acts in themselves harmless and
lawful which become unlawful only if they are done without the
consent of the person affected.”
3. “As a general rule, although it is a rule to which there are
exceptions, it is an unlawful act to beat another person with such a
degree of violence that the infliction of bodily harm is a probable
consequence, and when such an act is proved, consent is immaterial.”
4. The former distinction between maim and other types of injury
was out of date. Beating with the intent of doing some bodily harm is
malum in se to which consent is not a defence.
5. There are exceptions to this general rule, such as sparring,
sport or horseplay.
– 44 –
6. But what happened in the instant case did not fall within any of
the established exceptions.
-
-
-
For the purpose of the general rule bodily injury meant any hurt
or injury calculated to interfere with the health or comfort of the
prosecutor; it need not be permanent, but must be more than merely
transient or trifling. -
It was for the jury to decide whether the appellant had inflicted or
intended to inflict bodily injury in this sense.
-
-
My Lords, the first two of these propositions have more than once
been criticised as tautologous. I do not accept this, but will not stay to discuss
the point for its seems to me that they are right, as the instances of prize-
fighting and duelling make plain, and as all the counsel appearing in the
present appeal have agreed. The law simply treats some acts as criminal per
se irrespective of consent.
It is with the next stages in the reasoning that I pan company.
Donovan was charged only with indecent assault, and the latter is an offence
to which, it is common ground, consent is a defence. Yet the Court of
Criminal Appeal proceeded on the basis that the critical level of violence was
that of actual bodily harm, and that the jury should have been directed to
decide whether he was guilty of facts establishing an offence under section 47
of the Act of 1861: an offence with which he had not been charged. There is
something amiss here. What is amiss is that the dictum of Cave J. and the old
cases said to support it are taken out of their context, which was in each
instance the kind of battery regarded for reasons of public policy as being in
a special category which is automatically criminal. Plainly the Court in
Donovan did not put the beating of the complainant into that category, or the
appeal would have taken a quite different course. All that the court had to say
about the nature of the beating was that it was not, as the present appellants
would have us say, in a category which is automatically innocent.
10. Fighting.
I doubt whether it is possible to give a complete list of the situations
where it is conceivable that one person will consent to the infliction of
physical hurt by another, but apart from those already mentioned only one
seems worth considering; namely, what one may call “ordinary” fighting.
This was the subject of Attorney General’s Reference (No. 6 of 1980), [1981]
Q.B. 715. The accused fell into an argument with another youth in a street.
They agreed to settle it there and then by a fight, which they did, and as a
result the other person suffered a bleeding nose and a bruised face. The
accused was charged with common assault. There was no evidence that
anyone was present except one bystander, nor that there was any public
disorder other than the fight itself. The judge directed the jury that the fight
did not necessarily amount to an assault, and that they should consider
– 45 –
whether it was a case of both parties agreeing to fight and use only reasonable
force. The Attorney General referred for the opinion of the Court of Appeal
the question -“Where two persons fight (otherwise than in the course of sport)
in a public place can it be a defence for one of those persons to a charge of
assault arising out of the fight that the other consented to fight? ” When
answering this question the court consciously broke new ground. No reliance
was placed on the unsystematic old cases on sparring, or on Donovan, or even
as I understand it on Coney except as showing that public interest may demand
a special response to a special situation. Indeed, the protection of public order,
which had been the principal ground for the recognition of prizefighting as a
special category in Coney was explicitly discarded. Instead the court began by
stating that in general consent is a defence to a charge of assault, and went on
to observe that there might be cases where the public interest demanded
otherwise. Such a case existed “where people ..try to cause or …cause each
other bodily harm for no good reason”.
My Lords, I am not sure that I can detect here the inconsistency for
which this judgment has been criticised. Perhaps it is unduly complicated to
suggest that the public interest might annul the defence of consent in certain
situations and then in the shape of “good reason” re-create it. Nevertheless
I am very willing to recognise that the public interest may sometimes operate
in one direction and sometimes in the other. But even if it be correct that
fighting in private to settle a quarrel is so much against the public interest as
to make it automatically criminal even if the fighter is charged only with
assault, (a proposition which I would wish to examine more closely should the
occasion arise), I cannot accept that the infliction of bodily harm, and
especially the private infliction of it, is invariably criminal absent some special
factor which decrees otherwise. I prefer to address each individual category
of consensual violence in the light of the situation as a whole. Sometimes the
element of consent will make no difference and sometimes it will make all the
difference. Circumstances must alter cases.
For these reasons I consider that the House is free, as the Court of
Appeal in the present case was not (being bound by Attorney General’s
Reference (No. 6 of 1980) was not free) was not, to consider entirely afresh
whether the pubic interest demands the interpretation of the Act of 1861 in
such a way as to render criminal under section 47 the acts done by the
appellants.
II AN UNLAWFUL ACT
A question has arisen, not previously canvassed, whether the
appellants are necessarily guilt because their acts were criminal apart from the
Offences against the Person Act 1861, and that accordingly a defence of
consent which might otherwise have been available as an answer to a charge
under section 47 is to be ruled out. This proposition if correct will have some
strange practical consequences. First of all, it means that solely because the
– 46 –
appellants were guilty of offences under the Sexual Offences Act 1967, with
which they had not been charged and of which they could not (because of the
time limit) be convicted they can properly be convicted of crimes of violence
under a different statute carrying a much larger maximum penalty. The logic
of this argument demands that if the prosecution can show that a sexual
harming constitutes some other offence, however trifling and however
different in character, the prosecution will be able to establish an offence of
common assault or an offence under the Act of 1861, even if in its absence
the defendant would not be guilty of any offence at all. Surely this cannot be
right.
Moreover, if one returns to offences of the present kind further
practical anomalies may be foreseen. Not all grossly indecent acts between
males are indictable under the Sexual Offences Act, 1956. Thus, if the
criminality of conduct such as the present under the Offences against the
Person Act is to depend on whether the conduct is criminal on other grounds,
one would find that the penal status of the acts for the purposes of section 47
would depend upon whether they were done by two adult males or three adult
males. I can understand why, in relation to a homosexual conduct, Parliament
has not yet thought fit to disturb the compromise embodied in the Sexual
Offences Act 1967, but am quite unable to see any reason to carry a similar
distinction into the interpretation of a statute passed a century earlier, and
aimed at quite different evil. Since the point was not raised before the trial
judge, and the House has properly not been burdened with all the committal
papers, it is impossible to tell whether, if advanced, it might have affected the
pleas offered and accepted at the Central Criminal Court, but its potential for
creating anomalies in other cases seems undeniable.
I would therefore accede to this argument only if the decided cases so
demand. In my opinion they do not, for I can find nothing in them to suggest
that the consensual infliction of hurt is transmuted into an offence of violence
simply because it is chargeable as another offence. Even in the prizefighting
cases, which come closest to this idea, the tendency of these events to attract
a disorderly crowd was relevant not because the fighters might have been
charged, if anyone had cared to do so, with the separate offence of causing
a breach of the peace, but rather because this factor was a reason why the
events were placed as a matter of policy in a category which the law treated
as being in itself intrinsically unlawful notwithstanding the presence of
consent. I am satisfied that it was in this sense that the courts made reference
to the unlawfulness of the conduct under examination, and not to its
criminality aliunde.
III THE EUROPEAN CONVENTION ON HUMAN RIGHTS
The appellants relied on the European Convention on Human
Rights for two reasons. First, because it was said to support an argument that
the law as it now stood should be interpreted or developed in a sense
favourable to the appellants, and secondly because in the event of failure
– 47 –
before the House the appellants intend to pursue the matter before the
European Court of Human Rights, and for this purpose must show that their
local remedies have been exhausted.
Two provisions of the Convention are called in aid. The first is article
7, the proposition being that the convictions cannot be upheld without making
the appellants guilty in respect of acts which were not criminal when it was
committed. I am satisfied that this argument is unsound. Many of the acts
relied on took place after the decision in Attorney General’s Reference (No.
6 of 1980) [1981] QB 715, and all of them long postdated Donovan [1934]
2 K.B. 498. The ruling of the trial judge was perfectly comprehensible in the
light of these and other decisions. The law was being applied as it was then
understood. If the view which I now propose were to prevail the law would
be understood differently. If this happened the appeals would succeed, without
any reference to article 7. And if, as I understand to be the case, your
Lordships hold that on the law as it already exists the trial judge’s ruling was
right, there is no change of any kind, whether retrospective or otherwise, that
could possibly infringe article 7.
The second argument, ably presented by Miss Sharpston, is altogether
more substantial. Not of course because the enunciation of a qualified right of
privacy in article 8 leads inexorably to a conclusion in the appellants’ favour,
since even after all these years the United Kingdom has still failed to comply
with its treaty obligation to enact the Convention. Nor because I consider that
the individual provisions of the Convention will always point unequivocally
to the right answer in a particular case. Far from it. Emphasis on human
duties will often yield a more balanced and sharply-focused protection for the
individual than the contemporary preoccupation with human rights. The
sonorous norms of the Convention, valuable as they unquestionably are in
recalling errant states to their basic obligations of decency towards those in
their power, are often at the same time too general and too particular to
permit a reasoned analysis of new and difficult problems. Article 8 provides
a good example. The jurisprudence with which this article, in common with
other terms of the Convention, is rapidly becoming encrusted shows that in
order to condemn acts which appear worthy of censure they have had to be
forced into the mould of article 8, and referred to the concept of privacy, for
want of any other provision which will serve. I do not deny that the privacy
of the conduct was an important element in the present case, but I cannot
accept that this fact on its own can yield an answer.
Nevertheless, I believe that the general tenor of the decisions of the
European court does furnish valuable guidance on the approach which the
English court should adopt, if free to do so, and I take heart from the fact that
the European authorities, balancing the personal considerations invoked by
article 8(1) against the public interest considerations called up by article 8(2),
clearly favour the right of the appellants to conduct their private lives
undisturbed by the criminal law: a conclusion at which I have independently
arrived for reasons which I must now state.
– 48 –
IV PUBLIC POLICY
The purpose of this long discussion has been to suggest that the decks
are clear for the House to tackle completely anew the question whether the
public interest requires section 47 of the 1861 Act to be interpreted as
penalising an infliction of harm which is at the level of actual bodily harm,
but not grievous bodily harm; which is inflicted in private (by which I mean
that it is exposed to the view only of those who have chosen to view it);
which takes place not only with the consent of the recipient but with his
willing and glad co-operation; which is inflicted for the gratification of sexual
desire, and not in a spirit of animosity or rage; and which is not engaged in
for profit.
My Lords, I have stated the issue in these terms to stress two
considerations of cardinal importance. Lawyers will need no reminding of the
first, but since this prosecution has been widely noticed it must be
emphasised that the issue before the House is not whether the appellants’
conduct is morally right, but whether it is properly charged under the Act of
1861. When proposing that the conduct is not rightly so charged I do not
invite your Lordships’ House to endorse it as morally acceptable. Nor do I
pronounce in favour of a libertarian doctrine specifically related to sexual
matters. Nor in the least do I suggest that ethical pronouncements are
meaningless, that there is no difference between right and wrong, that sadism
is praiseworthy, or that new opinions on sexual morality are necessarily
superior to the old, or anything else of the same kind. What I do say is that
these are questions of private morality; that the standards by which they fall
to be judged are not those of the criminal law; and that if these standards are
to be upheld the individual must enforce them upon himself according to his
own moral standards, or have them enforced against him by moral pressures
exerted by whatever religious or other community to whose ethical ideals he
responds. The point from which I invite your Lordships to depart is simply
this, that the state should interfere with the rights of an individual to live his
or her life as he or she may choose no more than is necessary to ensure a
proper balance between the special interests of the individual and the general
interests of the individuals who together comprise the populace at large.
Thus, whilst acknowledging that very many people, if asked whether the
appellants’ conduct was wrong, would reply “Yes, repulsively wrong”, I
would at the same time assert that this does not in itself mean that the
prosecution of the appellants under sections 20 and 47 of the Offences against
the Person Act 1861 is well founded.
This point leads directly to the second. As I have ventured to formulate
the crucial question, it asks whether there is good reason to impress upon
section 47 an interpretation which penalises the relevant level of harm
irrespective of consent: i.e. to recognise sado-masochistic activities as falling
into a special category of acts, such as duelling and prize-fighting, which “the
law says shall not be done.” This is very important, for if the question were
differently stated it might well yield a different answer. In particular, if it
– 49 –
were to be held that as a matter of law all infliction of bodily harm above the
level of common assault is incapable of being legitimated by consent, except
in special circumstances, then we would have to consider whether the public
interest required the recognition of private sexual activities as being in a
specially exempt category. This would be an altogether more difficult
question and one which I would not be prepared to answer in favour of the
appellants, not because I do not have my own opinions upon it but because
I regard the task as one which the courts are not suited to perform, and which
should be carried out, if at all, by Parliament after a thorough review of all
the medical, social, moral and political issues, such as was performed by the
Wolfenden Committee. Thus, if I had begun from the same point of departure
as my noble and learned friend Lord Jauncey of Tullichettle I would have
arrived at a similar conclusion; but differing from him on the present state of
the law. I venture to differ.
Let it be assumed however that we should embark upon this question.
I ask myself, not whether as a result of the decision in this appeal, activities
such as those of the appellants should cease to be criminal, but rather whether
the Act of 1861 (a statute which I venture to repeat once again was clearly
intended to penalise conduct of a quite different nature) should in this new
situation be interpreted so as to make it criminal. Why should this step be
taken? Leaving aside repugnance and moral objection, both of which are
entirely natural but neither of which are in my opinion grounds upon which
the court could properly create a new crime, I can visualise only the following
reasons:
1. Some of the practices obviously created a risk of genito-urinary
infection, and others of septicaemia. These might indeed have been grave in
former times, but the risk of serious harm must surely have been greatly
reduced by modern medical science.
2. The possibility that matters might get out of hand, with grave results.
It has been acknowledged throughout the present proceedings that the
appellants’ activities were performed as a pre-arranged ritual, which at the
same time enhanced their excitement and minimised the risk that the infliction
of injury would go too far. Of course things might go wrong and really
serious injury or death might ensue. If this happened, those responsible would
be punished according to the ordinary law, in the same way as those who kill
or injure in the course of more ordinary sexual activities are regularly
punished. But to penalise the appellants’ conduct even if the extreme
consequences do not ensue, just because they might have done so would
require an assessment of the degree of risk, and the balancing of this risk
against the interests of individual freedom. Such a balancing is in my opinion
for Parliament, nor the courts; and even if your Lordships’ House were to
embark upon it the attempt must in my opinion fail at the outset for there is
no evidence at all of the seriousness of the hazards to which sado-masochistic
conduct of this kind gives rise. This is not surprising, since the impressive
argument of Mr. Purnell Q.C. for the respondents did not seek to persuade
– 50 –
your Lordships’ to bring the matter within the Act of 1861 on the ground of
special risks, but rather to establish that the appellants are liable under the
general law because the level of harm exceeded the critical level marking off
criminal from non-criminal consensual violence which he invited your
Lordships to endorse.
3. I would give the same answer to the suggestion that these activities
involved a risk of accelerating the spread of auto-immune deficiency
syndrome, and that they should be brought within the Act of 1861 in the
interests of public health. The consequence would be strange, since what is
currently the principal cause for the transmission of this scourge, namely
consenting buggery between males, is now legal. Nevertheless, I would have
been compelled to give this proposition the most anxious consideration if there
had been any evidence to support it. But there is none, since the case for the
respondent was advanced on an entirely different ground.
4. There remains an argument to which I have given much greater
weight. As the evidence in the present case has shown, there is a risk that
strangers (and especially young strangers) may be drawn into these activities
at an early age and will then become established in them for life. This is
indeed a disturbing prospect, but I have come to the conclusion that it is not
a sufficient ground for declaring these activities to be criminal under the Act
of 1861. The element of the corruption of youth is already catered for by the
existing legislation; and if there is a gap in it which needs to be filled the
remedy surely lies in the hands of Parliament, not in the application of a
statute which is aimed at other forms of wrong-doing. As regards
proselytisation for adult sado-masochism the argument appears to me circular.
For if the activity is not itself so much against the public interest that it ought
to be declared criminal under the Act of 1861 then the risk that others will be
induced to join in cannot be a ground for making it criminal.
Leaving aside the logic of this answer, which seems to me
impregnable, plain humanity demands that a court addressing the criminality
of conduct such as that of the present should recognise and respond to the
profound dismay which all members of the community share about the
apparent increase of cruel and senseless crimes against the defenceless. Whilst
doing so I must repeat for the last time that in the answer which I propose I
do not advocate the de-criminalisation of conduct which has hitherto been a
crime; nor do I rebut a submission that a new crime should be created,
penalising this conduct, for Mr. Purnell has rightly not invited the House to
take this course. 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.
V CONCLUSION
Accordingly I would allow these appeals and quash such of the
convictions as are now before the House.
– 51 –
LORD SLYNN OF HADLEY
My Lords,
The Court of Appeal (Criminal Division) when granting leave to the
appellants to appeal to the House of Lords certified that a point of law of
general importance was involved in their decision to dismiss the appeal,
namely:
“Where A wounds or assaults B occasioning him actual bodily harm
in the course of a sadomasochistic 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 and section 47 of the 1861
Offences Against the Person Act?”
By section 20 “Whosoever shall unlawfully and maliciously wound or
inflict any grievous bodily harm upon any other person, . . . shall be liable
to imprisonment . . .” and by section 47 “whosoever shall be convicted on
indictment of any assault occasioning actual bodily harm shall be liable . . .
to imprisonment.”
The trial judge ruled as a preliminary issue that:
” 1. It is an assault deliberately to strike or touch another person
other than in self defence with the intention thereby to cause bodily
harm, or a fortiori so to act so that bodily harm is thereby caused
intentionally or recklessly.
“2. Such an act or touching can be excused on the grounds that it
was lawfully carried out. Therefore whether consent is an element of
the offence itself, or whether it is to be treated as a defence in
exception to the general rule that I have stated, it is, accordingly, in
some cases a defence to the charge that the subject consented.”
The circumstances of this case do not permit these defendants
to rely on consent as a defence in law if any of them have carried out
acts satisfying the conditions under my first heading.”
On the basis of that ruling the appellants pleaded guilty to the charges
under section 47 of the Act (actual bodily harm) and to wounding (though not
to inflicting grievous bodily harm) under section 20 of the Act.
Some of the appellants and certain others also pleaded guilty to other
offences concerned with keeping a disorderly house, for which longer
sentences were imposed than those on the assault charges, and with the
– 52 –
publication and possession of obscene or indecent articles, for which sentences
of imprisonment were also imposed.
The argument on both sides has proceeded on the basis of earlier
authorities that bodily harm means any hurt or injury that is calculated to or
does interfere with the health or comfort of the subject but must be more than
transient or trifling; that grievous bodily harm means really serious bodily
harm and that wounding involves the breaking of the whole skin. Common
assault would include any physical touching which did not fall within these
categories.
The facts upon which the convictions under appeal were based are
sufficiently and clearly set out in the judgment of Lord Lane C.J. and
fortunately it is not necessary to repeat them. Nor is it necessary to refer to
other facts which are mentioned in the papers before the House which can
only add to one’s feeling of revulsion and bewilderment that anyone (in this
case men, in other cases mutatis mutandis, men and women or women) should
wish to do or to have done to him or her the acts so revealed. Some of those
other facts, though no less revolting to most people than the facts set out in
the charges, could not possibly have constituted an assault in any of the
degrees to which I have referred.
The determination of the appeal, however, does not depend on
bewilderment or revulsion or whether the right approach for the House in the
appeal ought to be liberal or otherwise. The sole question is whether when
a charge of assault is laid under the two sections in question, consent is
relevant in the sense either that the prosecution must prove a lack of consent
on the pan of the person to whom the act is done or that the existence of
consent by such person constitutes a defence for the person charged.
If, as seems clear on previous authority, it was a general rule of the
common law that any physical touching could constitute a battery, there was
an exception where the person touched expressly or impliedly consented. As
Goff L.J. put it in Collins v. Wilcock [1984] 1 W.L.R. 1172, 1177:
“Generally speaking, consent is a defence to battery.” As the word
“generally” suggests the exception was itself subject to exceptions. Thus in
Stephen’s Digest of the Criminal Law 3rd ed. (1883) it is stated in article 206
“Everyone has a right to consent to the infliction upon himself of bodily harm
not amounting to a maim”. By way of footnote it is explained that “Injuries
short of maims are not criminal at common law unless they are assaults, but
an assault is inconsistent with consent”. Maim could not be the subject matter
of consent since it rendered a man less able to fight or defend himself.
(Hawkins Pleas of the Crown, 8th ed., Book 1, p. 107). Nor could a person
consent to the infliction of death (Stephens, Digest, 3rd ed. article 207) or to
an infliction of bodily harm in such manner as to amount to a breach of the
peace (article 208). It was “uncertain to what extent any person has a right
to consent to his being put in danger of death or bodily harm by the act of
– 53 –
another” (article 209), where the example given suggests that dangerous acts
rendering serious bodily harm likely were contemplated.
The law has recognised cases where consent, expressed or implied, can
be a defence to what would otherwise be an assault and cases where consent
cannot be a defence. The former include surgical operations, sports, the
chastisement of children, jostling in a crowd, but all subject to a reasonable
degree of force being used, tattooing and earpiercing; the latter include death
and maiming. None of these situations, in most cases pragmatically accepted,
either covers or is analogous to the facts of the present case.
It is, however, suggested that the answer to the question certified flows
from the decisions in three cases.
The first is R. v. Coney (1882) 8 Q.B.D. 534. This is a somewhat
remarkable case in that not only the two participants in a prize-fight but a
number of observers were convicted of a common assault. The case was said
to be relevant to the present question since it was decided that consent was not
a defence to common assault. It is, however, accepted in the present appeal
that consent can be a defence to common assault. Moreover it is plain from
the judgment as a whole that a fight of this kind, since in public, either did,
or had a direct tendency to, create a breach of the peace. It drew large
crowds who gambled, who might have got excited and have fought among
themselves. Moreover it was plain that such fights were brutal – the fighters
went out to kill or very gravely injure their opponents and they fought until
one of them died or was very gravely injured. As Mathew J. put it, at p.
544:
“. . . the chief incentive to the wretched combatants to fight on until
(as happens too often) deadly injuries have been inflicted and life
endangered or sacrificed, is the presence of spectators watching with
keen interest every incident of the fight.”
This emphasis on the risk of a breach of the peace and the great danger to the
combatants is to be found in all of the judgments in the case. (See, for
example, pp. 538, 544, 546, 554, 562, 567). I cite only the judgment of
Stephen J. at p. 549:
“The principle as to consent seems to me to be this: when one person
is indicted for inflicting personal injury upon another, the consent of
the person who sustains the injury is no defence to the person who
inflicts the injury, if the injury is of such a nature, or is inflicted under
such circumstances, that its infliction is injurious to the public as well
as to the person injured. But the injuries given and received in prize-
fights are injurious to the public, both because it is against the public
interest that the lives and the health of the combatants should be
endangered by blows, and because prize-fights are disorderly
exhibitions, mischievous on many obvious grounds. Therefore the
– 54 –
consent of the parties to the blows which they mutually receive does
not prevent those blows from being assaults.”
The second case is Rex. v. Donovan [1934] 2 K.B. 498. Here the,
appellant, in private for his sexual gratification, caned a girl, who consented
and was paid. The appeal was allowed because the question of consent was
not left to the jury yet it was said that if the act done was itself unlawful,
consent to the act could not be a defence. This, however, was a long way
from Coney, upon which the essential passage in the judgment was largely
based, where the act was held to be unlawful in all circumstances regardless
of consent. In Donovan there was accepted to be an issue for the jury as to
whether the prosecution had proved that the girl had not consented and
whether the consent was immaterial.
The third case is the Attorney General’s Reference (No. 6 of 2980)
[1981] QB 715. Here two youths fought following an argument. There was
one bystander but no suggestion of public disorder as in Coney. If the
judgment had been limited to the fact that the fight took place in public then
there would clearly have been a possibility of a breach of the peace being
caused; but the court laid down (p. 719C) that even consensual fighting in
private constitutes an assault on the basis that consent is no defence “where
people . . . try to cause . . . or cause each other bodily harm for no good
reason.”
I am not satisfied that fighting in private is to be treated always and
necessarily as so much contrary to the public interest that consent cannot be
a defence. In any event I think that the question of consent in regard to a
fight needs special consideration. If someone is attacked and fights back he
is not to be taken as consenting in any real sense. He fights to defend
himself. If two people agree to fight to settle a quarrel the persons fighting
may accept the risk of being hurt; they do not consent to serious hurt, on the
contrary the whole object of the fight is to avoid being hurt and to hurt the
opponent. It seems to me that the notion of “consent” fits ill into the situation
where there is a fight. It is also very strange that a fight in private between
two youths where one may, at most, get a bloody nose should be unlawful,
whereas a boxing match where one heavyweight fighter seeks to knock out his
opponent and possibly do him very serious damage should be lawful.
Accordingly I do not consider that any of these three cases is
conclusive in resolving the present question.
These decisions are not in any event binding upon your Lordships’
House and the matter has to be considered as one of principle.
Three propositions seem to me to be clear.
It is “. . . inherent in the conception of assault and battery that the
victim does not consent” (Glanville Williams [1962] Grim. L.R. 74, 75).
– 55 –
Secondly, consent must be full and free and must be as to the actual level of
force used or pain inflicted. Thirdly, there exist areas where the law
disregards the victim’s consent even where that consent is freely and fully
given. These areas may relate to the person (e.g. a child); they may relate to
the place (e.g. in public); they may relate to the nature of the harm done. It
is the latter which is in issue in the present case.
I accept that consent cannot be said simply to be a defence to any act
which one person does to another. A line has to be drawn as to what can and
as to what cannot be the subject of consent. In this regard it is relevant to
recall what was said by Stephen J. in Reg. v. Coney 8 Q.B.D. 534, 549.
Even though he was referring to the position at common law, his words seem
to me to be of relevance to a consideration of the statute in question.
“In cases where life and limb are exposed to no serious danger in the
common course of things, I think that consent is a defence to a charge
of assault, even when considerable force is used that, as, for instance,
in cases of wrestling, single-stick, sparring with gloves, football, and
the like; but in all cases the question whether consent does or does not
take from the application of force to another its illegal character, is a
question of degree depending upon circumstances.”
There are passages in the judgment of Mclnerney J. in the Australian
case of Pallante v. Stadiums Pty. Ltd. (No. 1) [1976] V.R. 331, where a
boxing match was in issue which also seem to me to be helpful.
Thus at p. 340:
“It is easy to understand the proposition that if the harm to which
consent is alleged to have been given is really grievous, as, for
instance, in a case of maiming, the consent should be treated as
nugatory: see, for instance, Stephen’s Digest of Criminal Law (1926)
7th ed., Article 290. In Cross and Jones, An Introduction to Criminal
Law, 7th ed., p. 40, it is suggested as a reason for this conclusion that
the injured person is likely to become the charge of society. This may
be a good enough reason but I would think it is not the primary
reason. The primary reason, I would think, is that, as a general
proposition, it injures society if a person is allowed to consent to the
infliction on himself of such a degree of serious physical harm. . . .
“Grievous bodily harm is now to be understood as meaning ‘really
serious bodily harm’. So understood, the dictum of Stephen J. in
Coney’s case” [i.e. at p. 549, that the infliction of the blows is
regarded as injurious to the public as well as to the person injured]
“may, as Cross and Jones point out in the work cited at p. 40, require
to be understood as meaning that a person can lawfully consent to the
infliction of bodily harm upon himself provided it falls short of being
grievous bodily harm.”
– 56 –
I do not think a line can simply be drawn between “maiming” and
death on the one hand and everything else on the other hand. The rationale
for negating consent when maiming occurred has gone. It is, however,
possible to draw the line, and the line should be drawn, between really serious
injury on the one hand and less serious injuries on the other. I do not accept
that it is right to take common assault as the sole category of assaults to which
consent can be a defence and to deny that defence in respect of all other
injuries. In the first place the range of injuries which can fall within “actual
bodily harm” is wide – the description of two beatings in the present case
show that one is much more substantial than the other. Further, the same is
true of wounding where the test is whether the skin is broken and where it can
be more or less serious. I can see no significant reason for refusing consent
as a defence for the lesser of these cases of actual bodily harm and wounding.
If a line has to be drawn, as I think it must, to be workable, it cannot
be allowed to fluctuate within particular charges and in the interests of legal
certainty it has to be accepted that consent can be given to acts which are said
to constitute actual bodily harm and wounding. Grievous bodily harm I accept
to be different by analogy with and as an extension of the old cases on
maiming. Accordingly, I accept that other than for cases of grievous bodily
harm or death, consent can be a defence. This in 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 these two specific sections of
the Offences against the Person Act 1861.
None of the convictions in the present cases have been on the basis that
grievous bodily harm was caused. Whether some of the acts done in these
cases might have fallen within that category does not seem to me to be
relevant for present purposes.
Even if the act done constitutes common assault, actual bodily harm
or wounding, it remains to be established that the act was done otherwise than
in public and that it was done with full consent. I do not accept the suggested
test, as to whether an offence is committed, to be whether there is expense to
the state in the form of medical assistance or social security payments. It
seems to me better to ask whether the act was done in private or in public: is
the public harmed or offended by seeing what is done or is a breach of the
peace likely to be provoked? Nor do I consider that “hostility” in the sense
of “aggression” is a necessary element to an assault. It is sufficient if what
is done is done intentionally and against the will of the person to whom it is
done. These features in themselves constitute “hostility”.
In Reg. v. Wollaston (1872) 12 Cox C.C. 180 (where indecent assault
was charged) Kelly C.B., with whom the rest of the Court concurred, said,
at p. 181:
“If anything is done by one being upon the person of another, to make
the act an assault, it must be done without the consent and against the
– 57 –
will of the person upon whom it is done. Mere submission is not
consent, for there may be submission without consent, and while the
feelings are repugnant to the act being done. Mere submission is
totally different from consent. But in the present case there was actual
participation by both parties in the act done, and complete mutuality.”
In the present cases there is no doubt that there was consent; indeed
there was more than mere consent. Astonishing though it may seem, the
persons involved positively wanted, asked for, the acts to be done to them,
acts which it seems from the evidence some of them also did to themselves.
All the accused were old enough to know what they were doing. The acts
were done in private. Neither the applicants nor anyone else complained as
to what was done. The matter came to the attention of the police
“coincidentally”; the police were previously unaware that the accused were
involved in these practices though some of them had been involved for many
years. 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, even injury.
There has been much argument as to whether lack of consent is a
constituent of the offence which must be proved by the prosecution or whether
consent is simply raised by way of defence. Reliance is placed on the
Canadian case of Reg. v. Ciccarelli (1989) 54 C.C.C. (3d) 121, 123, where
it is said that in the absence of express consent the Crown must prove that the
victim did not impliedly consent to the act done. That decision, however, is
in the context of section 244 of the Criminal Code, (revised statutes of Canada
1970) which provides that: “A person commits an assault when, without the
consent of another person, or with consent (a) he applies force intentionally
to the person of the other, directly or indirectly; . . . ” In the present statute
there is no such provision, but it seems to me that here too the onus is on the
prosecution to prove that there was no consent on the part of the person said
to have been assaulted.
It has been suggested that if the act done is otherwise unlawful then
consent cannot be a defence, but it can be a defence, if the act is otherwise
lawful, in respect of injury which is less than really serious injury. That
would produce the result in the present case that if these acts are done by two
men they would be lawful by reason of section 1 of the Sexual Offences Act
1967, even though the acts are far away from the kinds of homosexual acts
which the Wolfenden Report had in mind (see paragraph 105 of the Report);
in that situation, consent, it is said, would be a defence. If on the other hand
three men took part, the activity would be unlawful under the Act of 1967 so
that there could be no consent to the acts done. But it would also appear to
mean that if these acts were done mutatis mutandis by a man and a woman,
or between two men and a woman, or a man and two women, where the
activity was entirely heterosexual, consent would prevent there being an
offence. I do not find that this distinction produces an acceptable result.
– 58 –
My conclusion is thus that as the law stands, adults can consent to acts
done in private which do not result in serious bodily harm, so that such acts
do not constitute criminal assaults for the purposes of the Act of 1861. My
conclusion is not based on the alternative argument that for the criminal law
to encompass consensual acts done in private would in itself be an unlawful
invasion of privacy. If these acts between consenting adults in private did
constitute criminal offences under the Act of 1861, there would clearly be an
invasion of privacy. Whether that invasion would be justified and in
particular whether it would be within the derogations permitted by article 8(2)
of the European Convention on Human Rights, it is not necessary, on the
conclusion to which I have come, to decide, despite the interesting arguments
address to your Lordships on that question and even on the basis that English
law includes a principle parallel to that set out in the European Convention on
Human Rights.
Mr. Kershaw Q.C. contended in a very helpful argument that the
answer to the question should be on the basis (a) of existing law or (b) that a
new ruling was to be given. My conclusion is on the basis of what I consider
existing law to be. I do not consider that it is necessary for the House in its
judicial capacity to give what is called “a new ruling” based on freedom of
expression, public opinion, and the consequences of a negative ruling on those
whom it is said can only get satisfaction through these acts; indeed the latter
I regard as being of no or at best of little relevance to the decision in this
case. Nor do I think that it is for your Lordships to make new law on the
basis of the position in other states so that English law can “keep in line”. All
these are essentially matters, in my view, to be balanced by the legislature if
it is thought necessary to consider the making criminal of sado-masochistic
acts per se. The problems involved are carefully analysed by Dr. L.H. Leigh
in Sado-masochism, Consent and the Reform of the Criminal Law‘”(1976) 39
M.L.R. 130.
The Director of Public Prosecution contends in her written
submissions:
“In the end it is a matter of policy. Is/are the state/courts right to
adopt a paternalistic attitude as to what is bad or good for subjects, in
particular as to deliberate 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. If society takes the view that this kind of behaviour, even though
sought after and done in private, is either so new or so extensive or so
undesirable that it should be brought now for the first time within the criminal
law, then it is for the legislature to decide. It is not for the courts in the
interests of “paternalism”, as referred to in the passage I have quoted, or in
order to protect people from themselves, to introduce, into existing statutory
crimes relating to offences against the person, concepts which do not properly
– 59 –
fit there. If Parliament considers that the behaviour revealed here should be
made specifically criminal, then the Offences against the Person Act 1861 or,
perhaps more appropriately, the Sexual Offences Act 1967 can be amended
specifically to define it. Alternatively, if it is intended that this sort of
conduct should be lawful as between two persons but not between more than
two persons as falling within the offence of gross indecency, then the
limitation period for prosecution can be extended and the penalties increased
where sadomasochistic acts are involved. That is obviously a possible course;
whether it is a desirable way of changing the law is a different question.
I would therefore answer the question certified on the basis that where
a charge is brought in respect of acts done between adults in private under
section 20 of the Offences against the Person Act 1861 in respect of wounding
and under section 47 in respect of causing actual bodily harm, it must be
proved by the prosecution that the person to whom the act was done did not
consent to it.
Accordingly I consider that these appeals should be allowed and the
conviction set aside.
– 60 –
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