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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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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
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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:
Offences against section 18 were
felonies, but offences against sections
20 and 47 were
misdemeanours. Therefore section 20 was not associated with
section
18 and separated from section 47 by categorisation.
Although section 47 appears to
describe a less serious offence than
section 20, the maximum
penalty was the same. Equality was maintained at
five years'
imprisonment after the distinction between felony
and
misdemeanour was abolished.
Wounding is associated in
sections 18 and 20 with the infliction of
grievous bodily harm
and is naturally thought of as a serious offence, but it
may
involve anything from a minor breaking or puncture of the skin to a
near
fatal injury. Thus wounding may simply occasion actual
bodily harm or it
- 23 -
may inflict grievous bodily harm.
If the victim's consent is a defence to
occasioning actual bodily
harm, then, so far as concerns the proof of guilt, the
line is
drawn, as my noble and learned friend, Lord Jauncey of
Tullichettle
puts it, "somewhere down the middle of section
20", which I would regard as
a most unlikely solution.
According to the appellants'
case, if an accused person charged with
wounding relies on
consent as a defence, the jury will have to find whether
anything
more than actual bodily harm was occasioned, something which is
not
contemplated by section 20.
The distinction between common
assault and all other attacks on the
person is that common
assault does not necessarily involve any. significant
bodily
injury. It is much easier to draw the line between no significant
injury
and some injury than to differentiate between
degrees of injury. It is also
more logical, because for one
person to inflict any injury on another without
good reason is an
evil in itself (malum in se) and contrary to public policy.
That consent is a defence to a
charge of common assault is a common
law doctrine which the 1861
Act has done nothing to change.
The proposition that the line of
"victim's consent" is regarded as drawn
just above
common assault gains support from the wording of clause 8(1) of
the
Bill attached to L.C. 122 (see paragraph 9.10):
"8(1) A person is guilty of assault if -
(a) he intentionally or recklessly
applies force to or causes an
impact on the body of another,
(i) without the consent of the other; or
(ii) where the act is likely
or intended to cause injury, with
or without the consent of the
other; or
(b) he intentionally or
recklessly, without the consent of the other,
causes the other to
believe that any such force or impact is
imminent."
My Lords, on looking at the cases,
I get little help from Reg. v. Coney
(1882) 8 Q.B.D.
534, which was much canvassed at the hearing of the appeal
and on
which your Lordships, necessarily, have commented. The case
contains
a number of inconclusive and sometimes conflicting statements, but
it
was generally agreed (the charge being one of common assault) that
consent
was no defence to that which amounted to, or had a direct
tendency to create,
a breach of the peace. The only support for
the present appellants is found
in the judgment of Stephen J., at
p. 549:
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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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