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STEPHEN ROY EMMETT, R v.  EWCA Crim 1710 (18th June, 1999)
THE COURT OF APPEAL
Courts of Justice
18th June 1999
B E F O R E :
(LORD JUSTICE ROSE)
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R E G I N A
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Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
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appeared on behalf of the Appellant
appeared on behalf of the Crown
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approved by the Court
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18th June 1999
JUSTICE WRIGHT: On 29th January 1999, in the Crown Court at Norwich, the
appellant, Mr Stephen Roy Emmett,
appeared before His Honour Judge Downes and a
jury charged with altogether five offences of assault occasioning actual bodily
In the event, the prosecution were content to proceed upon two of those
counts. The appellant was convicted of assault occasioning actual bodily harm,
on one count, by the jury on the judge's direction; and in the light of the
judge's direction, he pleaded guilty to a further count of assault occasioning
actual bodily harm, following the judge's ruling that there was no defence of
consent available to the appellant. The remaining counts on the indictment
were ordered to remain on the file on the usual terms.
On 23rd February 1999 the appellant was sentenced to 9 months'
imprisonment on each count consecutive, the sentence being suspended for 2 years.
He now appeals against conviction upon a certificate granted by the trial
judge which sets out the following question for the determination of this Court:
two adult persons consent to participate in sexual activity in private not
intended to cause any physical injury but which does in fact cause or risk
actual bodily harm, the potential for such harm being foreseen by both
parties, does consent to such activity constitute a defence to an allegation of
assault occasioning actual bodily harm contrary to section 47 of the Offences
Against the Person Act 1861."
The facts underlining these convictions and this appeal are a little
unusual. The appellant and the lady who is the subject of these two counts
were at the material time cohabiting together, and it is only right to recall
that, since the events which formed the basis of this prosecution and since the
prosecution was launched, they have married each other.
The evidence before the court upon which the judge made his ruling came
not from the complainant, who indeed in the circumstances is hardly to be
described as such, but from the doctor whom she had consulted as a result of
the injuries that she had suffered. At trial the doctor was permitted only to
describe the extent and nature of those injuries and not the explanations she
gave for them. The explanations for such injuries that were proffered by the
appellant, at his interview with the investigating police officers constituted
the remainder of the evidence. The complainant herself did not give evidence
and it was not intended that the appellant should do so either.
As to the first incident which gave rise to a conviction, we take
gratefully the statement of facts from the comprehensive ruling on the matter
that the learned judge handed down. The evidence on that count was that in the
course of sexual activity between them, it was agreed that the appellant was to
cover the complainant's head with a plastic bag of some sort, tie it at the
neck with a ligature, made from anything that was to hand, and tightened to the
point of endurance on the part of the person being tied. There is a
possibility, although the evidence was not entirely clear on the point, there
might also have been a gag applied. In any event, the complainant was tied up.
On the occasion of count 1, it is clear that while the lady was enveloped
in the plastic bag in this way, the defendant engaged in oral sex with her and
it became apparent, at some stage, that his excitement was such that he had
lost track of what was happening to the complainant. He eventually became
aware that she was in some sort of distress, was unable to speak, or make
intelligible noises, and it was apparent that she was in trouble because of the
loss of oxygen.
He rapidly removed the bag from her head. It may well be, as indeed the
complainant herself appears to have thought, that she actually lost
consciousness during this episode. But, in any event, during the following day,
her eyes became progressively and increasingly bloodshot and eventually she
went to see her doctor. He found that there subconjunctival haemorrhages in
both eyes and some petechial bruising around her neck. The first symptom was
caused by the restriction of oxygen to the brain and the second by the
restriction on the return blood flow in her neck. No treatment was prescribed
and after about a week her eyes returned to normal.
However, it is plain, and is accepted, that if these restrictions had been
allowed to continue for too long, as the doctor himself pointed out, brain
damage of increasing severity and ultimately death might result.
The second incident arose out of events a few weeks later when again
sexual activity was taking place between these two people. On this occasion
lighter fuel was used and the appellant poured some on to his partner's breasts
and set light to it. As a result she suffered a burn, measuring some 6cm x
4cm, which became infected and, at the appellant's insistence, she consulted
her doctor again. He thought she had suffered a full thickness third degree
burn which might in the event require skin graft. Happily, it appears that he
may have somewhat overestimated the seriousness of the burn, as it appears to
be accepted that, by the date of the hearing, the burn had in fact completely
healed over without scarring.
Nonetheless, the doctor, alarmed by the appearance of his patient on two
occasions and the explanations that she had given as to how these injuries had
come about, informed the police, and the appellant was arrested.
During a series of interviews, the appellant explained that he and his
partner had been living together for some 4 months, and that they were deeply
involved in an energetic and very physical sexual relationship which both
greatly enjoyed. The suggestions for some of the more outre forms of sexual
activity came normally from him, but were always embarked upon and only after
discussion and with her complete consent and always desisted from if she
On the other hand, he accepted that it was their joint intention to take
such matters "to the limit, before anything serious happens to each other." He
accepted that, on the first occasion, involving the plastic bag, things had
indeed gone too far, and he had panicked: "I just pulled it off straight away,
I didn't realise how far the bag had gone."
As to the lighter fuel incident, he explained that when he set light to
the liquid, she had panicked and would not keep still, so he could not
extinguish the flames immediately. As a result, she had suffered the burn which
he had accepted was a serious one.
On both occasions, she had only gone to the doctor on his insistence. The
learned judge, at the close of that evidence, delivered a ruling to which this
Court desires to pay tribute, for its clarity and logical reasoning. He held
that the nature of the injuries and the degree of actual or potential harm was
such, that it was proper for the criminal law to intervene and that in light of
the majority of the opinions of the House of Lords in
 AC 212
, 97 Cr App R 44, consent could not form the basis of a defence.
It is to that authority that first reference must be made when considering a
matter of this kind.
In that case a group of sadomasochistic homosexuals, over a period of
years, took willing part in the commission of acts of violence against each
other, including what can only be described as genital torture for the sexual
pleasure engendered in the giving and receiving of pain. All such activities
took place in private. The participants were convicted of a series of
substantive offences against either section 20 or section 47 of the 1861 Act.
The House of Lords, by a majority of 3 to 2 upheld the judgment of this Court,
and dismissed the appeals against conviction, holding that public policy
required that society should be protected by criminal sanctions against conduct
which, among other things, held the potential for causing serious injury.
Accordingly the House held that a person could be convicted under section 47 of
the 1861 Act for committing sadomasochistic acts which inflict injuries, which
were neither transient nor trifling, notwithstanding that the recipient of such
injuries consented to the acts and not withstanding that no permanent injury
Lord Jauncey and Lord Lowry in their speeches both expressed the view
that, as a matter of principle, that the deliberate infliction of actual bodily
harm in a sadomasochistic activity should be held unlawful notwithstanding the
consent of the victim. At page 50 Lord Jauncey observed:
was accepted by all the appellants that a line had to be drawn somewhere
between those injuries to which a person could consent to an infliction upon
himself and those which were so serious that consent was immaterial. They all
agreed that assaults occasioning actual bodily harm 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
a later passage, the learned Lord of Appeal having cited a number of English
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
Offence Against the Person Act 1961, 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 contest and games, parental chatisement
or reasonable surgery."
Lord Lowry at page 67, agreed with Lord Jauncey, and also drew the line
between that which amounts to common assault and that which amounts to the
statutory offence of assault occasioning actual bodily harm. Lord Templeman,
on the other hand, based his opinion upon the actual or potential risk of harm,
and at page 51 he observed this, after describing the activities engaged in by
the appellants in that case. He observed and we quote:
dangers involved in administering violence must have been appreciated by the
appellant 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... There were obvious dangers of serious personal injury and blood
in a later passage he observed:
is fortunate that there were no permanent injuries to a victim though no one
knows the extent of harm inflicted in other cases."
a resounding passage, Lord Templeman concluded:
am not prepared to invent a defence of consent for sado-masochistic encounters
which breed and glorify cruelty and result in offences under section 47 and 20
of the Act of 1861."
observe en passant that although that case related to homosexual activity, we
can see no reason in principle, and none was contended for, to draw any
distinction between sadomasochistic activity on a heterosexual basis and that
which is conducted in a homosexual context.
Their Lordships referred, with approval, in the course of those evidence,
to the decision of this Court, in
Reference No 6 of 1980
73 Cr App R 63, a case arising out of consensual fighting in the street. Lord
Lane, giving the judgment of the Court, when answering the question: at what
point does the public interest require the court to hold that consent is not a
defence? He remarked and we quote:
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 public; it is
an assault if actual bodily harm is intended and/or caused. This mean that
most fights will be unlawful regardless of consent.
which we have said is intended to cast doubt upon the accepted legality of
properly conducted games and sports, lawful chatisement or correction,
reasonable surgical interference, dangerous exhibitions, etc. These apparent
exceptions can be justified as involving the exercise of a legal right, in the
cause of chastisement or corrections, or as needed in the public interest, in
the other case cases."
(1988) 83 Cr App R 335, this Court, in relying on the abbreviation "etc", added
rough and undisciplined horseplay without there being any intention to cause
injury to that list, and the appellant relies upon that case as forming the
basis for a submission that the present case is to be similarly approached as
dealing or being concerned with rough and undisciplined love play.
The primary basis, however, for the appellant's submissions in this case,
is to be found in the case of
 2 Cr App R 241. In that case the facts were that the appellant, at the
request and with the consent of his wife, used a hot knife to brand his
initials A W on each of his wife's buttocks. At the close of the prosecution
case at trial, the judge ruled that there was a case to answer, holding that he
was bound by the House of Lords authority of
The appellant called no evidence, and was convicted. This Court allowed the
appellant's appeal on the basis that
is not authority for the proposition that consent is no defence, to a charge
under section 47 of the Offences Against the Person 1861, in all circumstances
where actual bodily harm is deliberately inflicted. What the appellant had
done, if carried out with the consent of an adult, did not involve an offence
against section 47, albeit actual bodily harm was deliberately inflicted. The
court also observed in its view, consensual activity between husband and wife,
in the privacy of the matrimonial home, is not a proper matter for criminal
investigation or prosecution. Russell LJ, giving the judgment of the Court,
after setting out the facts, pointed that there was no evidence of any
significant harm having been done to the wife, in this particular case. The
healing proceeded in the normal way, so much so that the doctor who gave
evidence made no reference to any scar on the right buttock.
Having referred to
and another case
Russell LJ went on:
are abundantly satisfied that there is no factual comparison to be made between
the instant case and the facts of either Donovan or Brown: Mrs Wilson not only
consented to that which the appellant did, she instigated it. There was no
aggressive intent on the part of the appellant. On the contrary, far from
wishing to cause injury to his wife, the appellant's desire was to assist her
in what she regard as the acquisition of a desirable personal adornment,
perhaps in this day and age no less understandable that the piercing of
nostrils or even tongues for the purposes of inserting decorative jewellery.
is not authority for the proposition that consent is no defence to a charge
under section 47 of the 1861 Act, in all the circumstances where actual bodily
harm is deliberately inflicted. It is to be observed that the questions
certified for their Lordships in
related only to a sadomasochistic encounter. Their Lordships recognised, in the
course of their speeches, that it was necessary there must be exceptions to
what is no more than a general proposition."
the learned Lord Justice continued at page 244:
our part, we cannot detect any logical difference between what the appellant
did and what he might have done in the way of tattooing. The latter activity
apparently requires no state authorisation, and the appellant was as free to
engage in it as anyone else.
do not think that we are entitled to assume that the method adopted by the
appellant and his wife was any more dangerous or painful than tattooing. There
was simply no evidence to assist the court on this aspect of the matter."
The appellant, understandably, relies strongly upon these passages, but we
have come to the clear conclusion that the evidence in the instant case, in
striking contrast to that in
made it plain that the actual or potential damage to which the appellant's
partner was exposed in this case, plainly went far beyond that which was
established by the evidence in
The lady suffered a serious, and what must have been, an excruciating
painful burn which became infected, and the appellant himself recognised that
it required medical attention. As to the process of partial asphyxiation, to
which she was subjected on the earlier occasion, while it may be now be fairly
well known that the restriction of oxygen to the brain is capable of
heightening sexual sensation, it is also, or should be, equally well-known that
such a practice contains within itself a grave danger of brain damage or even
death. There have been, in recent years, a number of tragic cases of persons
who have taken this practice too far, with fatal consequences.
As the interview made plain, the appellant was plainly aware of that
danger. In the course of argument, counsel was asked what the situation would
have been if, in the present case, the process had gone just a little further
and the appellant's partner had died. No satisfactory answer, unsurprisingly,
as we think could be given to that question.
Accordingly, whether the line beyond which consent becomes immaterial is
drawn at the point suggested by Lord Jauncey and Lord Lowry, the point at which
common assault becomes assault occasioning actual bodily harm, or at some
higher level, where the evidence looked at objectively reveals a realistic risk
of a more than transient or trivial injury, it is plain, in our judgment, that
the activities involved in by this appellant and his partner went well beyond
that line. The learned judge, in giving his ruling said:
this case, the degree of actual and potential harm was such and also the degree
of unpredictability as to injury was such as to make it a proper cause from the
criminal law to intervene. This was not tattooing, it was not something which
absented pain or dangerousness and the agreed medical evidence is in each case,
certainly on the first occasion, there was a very considerable degree of danger
to life; on the second, there was a degree of injury to the body."
that conclusion, this Court entirely agrees. The learned judge was right to
rule that these matters should be left to the jury, on the basis that consent
could not amount to a defence.
Two other points have been raised before us which were not raised in the
court below and which we must necessarily deal with. The first, which, in all
fairness to Mr Spencer, we have to say he put forward with very considerable
diffidence, is an argument based on provisions of the Local Government
(Miscellaneous) Provisions Act which, as will be well-known, permits the
setting up, under certain restricted circumstances, of a system of licenced sex
shops. The argument, as we understand it, is that as Parliament contemplated
the setting up of shops which, under certain circumstances would be permitted
to sell articles to be used in connection or for the purpose of stimulating
acts of force or restraint associated with sexual activity, then so must
Parliament have recognised, and at least been prepared to tolerate, the use to
which such articles would or might be put.
Mr Spencer regaled the Court with the recent publications emanating from
the European Commission setting out what is apparently described as best
practice to be followed when conduct of such kind is being indulged in.
If the suggestion behind that argument is that Parliament must be taken to
have consented sub silentio to the use of sexual aids or other articles by one
person, to inflict actual bodily harm upon another, then, with the greatest of
respect, we would conclude that the absurdity of such a contention is such that
it merits no further discussion. If that is not the suggestion, then the point
has no relevance.
The second point raised by the appellant is that on the facts of this
particular case, the involvement of the processing of the criminal law, in the
consensual activities that were carried on in this couple's bedroom, amount to
a breach of Article 8 of the European Convention on Human Rights, and this
provides under paragraph (1) that everyone has the right to respect for his
private and family life, his home and correspondence. By paragraph (2), there
should be no interference by a public authority with the exercise of this
right, except such as is in accordance with the law and is necessary, in a
democratic society, in the interests - and I omit the irrelevant words - of the
prevention of disorder or crime, or for the protection of health or morals.
Article 8 was considered by the House of Lords in
Lord Templeman, at page 52, observed tersely, after setting out the terms of
Article 8 as follows:
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
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."
Jauncey agreed with those observations and Lord Lowry, at page 68, observed:
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
This aspect of the case was endorsed by the European Court on Human Rights
itself, its own consideration of the very same case, under the title of
v United Kingdom
24 EHRR 39
. Again, it seems clear to us that once the conduct of the accused
person has gone beyond the permitted limit, however that is defined, in
inflicting injury upon or exposing to potential risk his or her partner, in the
course of sadomasochistic games whether homo- or heterosexual, so that he or she
at least has committed an offence of a sufficient degree of seriousness, the
institution of a criminal investigation and, if appropriate, criminal
proceedings cannot amount to a breach of Article 8.
For all these reasons these appeals must be dismissed.
FARMER: I am asked to apply for costs in the sum of £1,236. The defendant
did not receive an immediate custodial sentence and was paying some
contribution to costs in the lower court.
SPENCER: My Lord, he has been on legal aid, I believe.
VICE PRESIDENT: Can we be sure.
SPENCER: I was instructed by the Registrar.
FARMER: I am not applying that he pay his own costs, I am applying for an
order for the prosecution costs.
VICE PRESIDENT: Against the appellant, who is on legal aid. It would be a
very unusual order.
FARMER: With respect, my Lord, no, the usual practise is that if he has the
means to pay a contribution to the prosecution costs, it is general practice
that he does.
JUSTICE WRIGHT: We have no evidence as to what his means are.
FARMER: All I can say, on the issue of means, is that he had sufficient means
to pay a contribution in the court below.
SPENCER: I am trying to see if he is here, he is not. I am in extreme
difficulty, I know not of his current state of affairs at all.
VICE PRESIDENT: Mr Farmer, did you give notice to the appellant that this
application was going to be made?
FARMER: I did not give notice but it is well established. My learned friend
well knows that it is, these days, always the instructions of the Crown
Prosecution Service to apply for costs.
VICE PRESIDENT: Are you speaking in first instance or in this Court? Certainly
it is not the experience of this Court.
FARMER: Usually when I have found myself in this situation, the defendant has
finished with a custodial sentence, and I cannot actually recall, in this
situation, where a defendant has not received a custodial sentence - there may
have been, I cannot remember it.
VICE PRESIDENT: You are not seeking an Attorney-General's Reference by the
FARMER: Not at all, I am instructed to ask, I am asking. He is at liberty, and
I know that certainly at the time of the Crown Court in January or February he
had means to pay. That is what I am going on.
VICE PRESIDENT: We shall not accede to Mr Farmer's application for costs. We
add this. If, in future, in this Court, the question arises of seeking an
order for costs against a legally aided appellant, it will be in everybody's
interest if the prosecution give notice of the intention to make that
application to those, at least to counsel for the appellant.
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