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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> R v Brown [1992] UKHL 7 (11 March 1993)
URL: http://www.bailii.org/uk/cases/UKHL/1992/7.html
Cite as: [1993] 2 All ER 75, [1994] 1 AC 212, [1992] UKHL 7, [1993] 2 WLR 556

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JISCBAILII_CASE_CRIME

    Parliamentary Archives,
    HL/PO/JU/18/253

    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] Q.B. 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] Q.B. 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] Q.B. 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] Q.B. 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] Q.B. 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 A.C. 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] Q.B. 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

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    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:

    1. 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.

    2. 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.

    3. 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

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    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.

    1. 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.

    2. 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.

    3. 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:

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    "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] Q.B. 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:

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