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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> R v Brown [1993] UKHL 19 (11 March 1993)
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Cite as: [1994] 1 AC 212, [1993] 2 WLR 556, [1993] UKHL 19, [1993] 2 All ER 75, [1994] AC 212

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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] QB 715
    where two men quarrelled and fought with bare fists Lord Lane, C.J.,
    delivering the judgment of the Court of Appeal said, at p. 719:

    ". . . It is not in the public interest that people should try to cause, or
    should cause, each other bodily harm for no good reason. Minor
    struggles are another matter. So, in our judgment, it is immaterial

    - 5 -

    whether the act occurs in private or in public; it is an assault if actual
    bodily harm is intended and/caused. This means that most fights will
    be unlawful regardless of consent. Nothing which we have said is
    intended to cast doubt upon the accepted legality of properly conducted
    games and sports, lawful chastisement or correction, reasonable
    surgical interference, dangerous exhibitions, etc. These apparent
    exceptions can be justified as involving the exercise of a legal right,
    in the case of chastisement or correction, or as needed in the public
    interest, in the other cases."

    Duelling and fighting are both unlawful and the consent of the
    protagonists affords no defence to charges of causing actual bodily harm,
    wounding or grievous bodily harm in the course of an unlawful activity.

    The appellants and their victims in the present case were engaged in
    consensual homosexual activities. The attitude of the public towards
    homosexual practices changed in the second half of this century. Change in
    public attitudes led to a change in the law.

    The Wolfenden Report (Report of the Committee on Homosexual
    Offences and Prostitution (1957) ((Cmnd. 247)) declared that the function of
    the criminal law in relation to homosexual behaviour "is to preserve public
    order and decency, to project the citizen from what is offensive or injurious,
    and to provide sufficient safeguards against exploitation and corruption of
    others, particularly those who are especially vulnerable because they are
    young, weak in body or mind, inexperienced, or in a state of special,
    physical, official or economic dependence"; paragraph 13 of chapter 2.

    In response to the Wolfenden Report and consistently with its
    recommendations, Parliament enacted section 1 of the Sexual Offences Act
    1967 which provided, inter alia, as follows:

    "(1) Notwithstanding any statutory or common law provision, . . .
    a homosexual act in private shall not be an offence provided that the
    parties consent thereto and have attained the age of 21 years.

    "(2) An act which would otherwise be treated for the purposes of this
    Act as being done in private shall not be so treated if done - (a) when
    more than two persons take part or are present; . . .

    "(6) It is hereby declared that where in any proceedings it is charged
    that a homosexual act is an offence the prosecutor shall have the
    burden of proving that the act was done otherwise than in private or
    otherwise than with the consent of the parties or that any of the parties
    had not attained the age of 21 years.

    "(7) For the purposes of this section a man shall be treated as doing
    a homosexual act if, and only if, he commits buggery with another

    -6-

    man or commits an act of gross indecency with another man or is a
    party to the commission by a man of such an act."

    The offence of gross indecency was created by section 13 of the Sexual
    Offences Act 1956 in the following terms:

    "It is an offence for a man to commit an act of gross indecency with
    another man, whether in public or private, or to be a party to the
    commission by a man of an act of gross indecency with another man,
    or to procure the commission by a man of an act of gross indecency
    with another man."

    By the Act of 1967, Parliament recognised and accepted the practice
    of homosexuality. Subject to exceptions not here relevant, sexual activities
    conducted in private between not more than two consenting adults of the same
    sex or different sexes are now lawful. Homosexual activities performed in
    circumstances which do not fall within section 1(1) of the Act of 1967 remain
    unlawful. Subject to the respect for private life embodied in the Act of 1967,
    Parliament has retained criminal sanctions against the practice, dissemination
    and encouragement of homosexual activities.

    My Lords, the authorities dealing with the intentional infliction of
    bodily harm do not establish that consent is a defence to a charge under the
    Act of 1861. They establish that the courts have accepted that consent is a
    defence to the infliction of bodily harm in the course of some lawful activities.
    The question is whether the defence should be extended to the infliction of
    bodily harm in the course of sado-masochistic encounters. The Wolfenden
    Committee did not make any recommendations about sado-masochism and
    Parliament did not deal with violence in 1967. The Act of 1967 is of no
    assistance for present purposes because the present problem was not under
    consideration.

    The question whether the defence of consent should be extended to the
    consequences of sado-masochistic encounters can only be decided by
    consideration of policy and public interest. Parliament can call on the advice
    of doctors, psychiatrists, criminologists, sociologists and other experts and can
    also sound and take into account public opinion. But the question must at this
    stage be decided by this House in its judicial capacity in order to determine
    whether the convictions of the appellants should be upheld or quashed.

    Counsel for some of the appellants argued that the defence of consent
    should be extended to the offence of occasioning actual bodily harm under
    section 47 of the Act of 1861 but should not be available to charges of serious
    wounding and the infliction of serious bodily harm under section 20. I do not
    consider that this solution is practicable. Sado-masochistic participants have
    no way of foretelling the degree of bodily harm which will result from their
    encounters. The differences between actual bodily harm and serious bodily

    - 7 -

    harm cannot be satisfactorily applied by a jury in order to determine acquittal
    or conviction.

    Counsel for the appellants argued that consent should provide a defence
    to charges under both section 20 and section 47 because, it was said, every
    person has a right to deal with his body as he pleases. I do not consider that
    this slogan provides a sufficient guide to the policy decision which must now
    be made. It is an offence for a person to abuse his own body and mind by
    taking drugs. Although the law is often broken, the criminal law restrains a
    practice which is regarded as dangerous and injurious to individuals and which
    if allowed and extended is harmful to society generally. In any event the
    appellants in this case did not mutilate their own bodies. They inflicted bodily
    harm on willing victims. Suicide is no longer an offence but a person who
    assists another to commit suicide is guilty of murder or manslaughter.

    The assertion was made on behalf of the appellants that the sexual
    appetites of sadists and masochists can only be satisfied by the infliction of
    bodily harm and that the law should not punish the consensual achievement of
    sexual satisfaction. There was no evidence to support the assertion that sado-
    masochist activities are essential to the happiness of the appellants or any
    other participants but the argument would be acceptable if sado-masochism
    were only concerned with sex, as the appellants contend. In my opinion sado-
    masochism is not only concerned with sex. Sado-masochism is also concerned
    with violence. The evidence discloses that the practices of the appellants were
    unpredictably dangerous and degrading to body and mind and were developed
    with increasing barbarity and taught to persons whose consents were dubious
    or worthless.

    A sadist draws pleasure from inflicting or watching cruelty. A
    masochist derives pleasure from his own pain or humiliation. The appellants
    are middle-aged men. The victims were youths some of whom were
    introduced to sado-masochism before they attained the age of 21. In his
    judgment in the Court of Appeal, Lord Lane C.J. said that two members of
    the group of which the appellants formed part, namely one Cadman and the
    appellant Laskey:

    ". . . were responsible in part for the corruption of a youth K . . . It
    is some comfort at least to be told, as we were, that K has now it
    seems settled into a normal heterosexual relationship. Cadman had
    befriended K when the boy was 15 years old. He met him in a
    cafeteria and, so he says, found out that the boy was interested in
    homosexual activities. He introduced and encouraged K in "bondage
    affairs". He was interested in viewing and recording on videotape K
    and other teenage boys in homosexual scenes . . . One cannot overlook
    the danger that the gravity of the assaults and injuries in this type of
    case may escalate to even more unacceptable heights."

    - 8 -

    The evidence disclosed that drink and drugs were employed to obtain
    consent and increase enthusiasm. The victim was usually manacled so that the
    sadist could enjoy the thrill of power and the victim could enjoy the thrill of
    helplessness. The victim had no control over the harm which the sadist, also
    stimulated by drink and drugs might inflict. In one case a victim was branded
    twice on the thigh and there was some doubt as to whether he consented to or
    protested against the second branding. The dangers involved in administering
    violence must have been appreciated by the appellants because, so it was said
    by their counsel, each victim was given a code word which he could
    pronounce when excessive harm or pain was caused. The efficiency of this
    precaution, when taken, depends on the circumstances and on the personalities
    involved. No one can feel the pain of another. The charges against the
    appellants were based on genital torture and violence to the buttocks, anus,
    penis, testicles and nipples. The victims were degraded and humiliated
    sometimes beaten, sometimes wounded with instruments and sometimes
    branded. Bloodletting and the smearing of human blood produced excitement.
    There were obvious dangers of serious personal injury and blood infection.
    Prosecuting counsel informed the trial judge against the protests of defence
    counsel, that although the appellants had not contracted AIDS, two members
    of the group had died from AIDS and one other had contracted an HIV
    infection although not necessarily from the practices of the group. Some
    activities involved excrement. The assertion that the instruments employed by
    the sadists were clean and sterilized could not have removed the danger of
    infection, and the assertion that care was taken demonstrates the possibility of
    infection. Cruelty to human beings was on occasions supplemented by cruelty
    to animals in the form of bestiality. It is fortunate that there were no
    permanent injuries to a victim though no one knows the extent of harm
    inflicted in other cases. It is not surprising that a victim does not complain
    to the police when the complaint would involve him in giving details of acts
    in which he participated. Doctors of course are subject to a code of
    confidentiality.

    In principle there is a difference between violence which is incidental
    and violence which is inflicted for the indulgence of cruelty. The violence of
    sado-masochistic encounters involves the indulgence of cruelty by sadists and
    the degradation of victims. Such violence is injurious to the participants and
    unpredictably dangerous. I am not prepared to invent a defence of consent for
    sado-masochistic encounters which breed and glorify cruelty and result in
    offences under sections 47 and 20 of the Act of 1861.

    The appellants' counsel complained that some of the group's activities
    involved the appellants in offences of gross indecency which, happily for the
    appellants, became time barred before the police obtained video films made
    by members of the group of some of their activities. Counsel submitted that
    since gross indecency charges were time barred, the police acted unfairly
    when they charged the appellants with offences under the Act of 1861. But
    there was no reason for the police to refrain from pursuing the charges under
    the Act of 1861 merely because other charges could not be pursued.

    - 9 -

    Indecency charges are connected with sex. Charges under the Act of 1861 are
    concerned with violence. The violence of sadists and the degradation of their
    victims have sexual motivations but sex is no excuse for violence.

    The appellants' counsel relied, somewhat faintly, on article 7 of the
    European Convention on Human Rights. That article so far as material
    provides that:

    " 1. No one shall be guilty of any criminal offence on account of
    any act or omission which did not constitute a criminal offence
    under national or international law at the time when it was
    committed."

    At the relevant time it was a criminal offence under English law to
    inflict actual bodily harm or worse. Counsel submitted that the appellants
    reasonably believed that consent was a defence. This was an ingenious
    argument for which there was no foundation in fact or principle and which in
    any event does not seem to me to provide a defence under article 7.

    The appellants' counsel relied on article 8 of the Convention which is

    in these terms:

    "1. Everyone has the right to respect for his private and family
    life, his home and his correspondence.

    2. There shall be no interference by a public authority for the
    exercise of this right except such as is in accordance with the
    law and is necessary in a democratic society in the interests of
    natural security, public safety or the economic well-being of
    the country, for the prevention of disorder or crime, for the
    protection of health or morals, or for the protection of the
    rights and freedoms of others."

    It is not clear to me that the activities of the appellants were exercises
    of rights in respect of private and family life. But assuming that the
    appellants are claiming to exercise those rights I do not consider that Article
    8 invalidates a law which forbids violence which is intentionally harmful to
    body and mind.

    Society is entitled and bound to protect itself against a cult of violence.
    Pleasure derived from the infliction of pain is an evil thing. Cruelty is
    uncivilised. I would answer the certified question in the negative and dismiss
    the appeals of the appellants against conviction.

    - 10 -

    LORD JAUNCEY OF TULLICHETTLE

    My Lords,

    All five appellants and a number of other persons were charged with
    offences against section 47 of the Offences Against the Person Act 1861, and
    the appellants Laskey, Jaggard and Lucas were also charged with
    contraventions of section 20 of that Act. The events giving rise to all the
    charges were sado-masochistic homosexual activities carried out consensually
    by the appellants with each other and with other persons. Following upon a
    ruling of the trial judge that consent of the other participant ("the receiver")
    was no defence to the charges the appellants pleaded guilty and were duly
    sentenced. Their appeals against the judge's ruling were dismissed by the
    Court of Appeal which certified the following point of law as being of general
    public importance.

    "Where A wounds or assaults B occasioning him actual bodily harm
    in the course of a sado-masochistic encounter, does the prosecution
    have to prove lack of consent on the part of B before they can
    establish A's guilt under section 20 or section 47 of the Offences
    Against the Person Act 1861?"

    Although the issue of consent was fundamental and indeed common to
    all five appeals the appellants did not lack for representation since no less than
    four Queens Counsel and one junior counsel addressed your Lordships on
    their behalf on different aspects of this matter.

    The facts giving rise to the charges came to light as a result of police
    investigation into other matters. It was common ground that the receivers had
    neither complained to the police nor suffered any permanent injury as a result
    of the activities of the appellants. Although the incidents giving rise to each
    charge were the subject of a video-recording, these recordings were made not
    for sale at a profit but for the benefit of those members of the "ring", if one
    may so describe it, who had not had the opportunity of witnessing the events
    in person. Your Lordships were further informed that the activities of the
    appellants, who are middle aged men, were conducted in secret and in a
    highly controlled manner, that code words were used by the receiver when he
    could no longer bear the pain inflicted upon him and that when fish-hooks
    were inserted through the penis they were sterilised first. None of the
    appellants however had any medical qualifications and there was, of course,
    no referee present such as there would be in a boxing or football match.

    The basic argument propounded by all the appellants was that the
    receivers having in every case consented to what was inflicted upon them no
    offence had been committed against sections 20 or 47 of the Offences Against
    the Person Act 1861. All the appellants recognised however that so broad a
    proposition could not stand up and that there must be some limitation upon the
    harm which an individual could consent to receive at the hand of another.

    - 11 -

    The line between injuries to the infliction of which an individual could consent
    and injuries to whose infliction he could not consent must be drawn it was
    argued where the public interest required. Thus except in the case of
    regulated sports the public interest required that injuries should not be inflicted
    in public where they might give rise to a breach of the peace. Lady Mallalieu
    for laggard argued that injuries to which consent would be irrelevant were
    those which resulted in actual expense to the public by reason, for example,
    of the expenses of hospital or other medical treatment, or payment of some
    benefit. Such injuries would be likely to be serious and to be appropriate to
    a section 20 charge, whereas the consensual infliction of less serious injuries
    would not constitute an offence. Furthermore the presence of hostility was an
    essential element in the offence of assault, which element was necessarily
    lacking where a valid consent was present. Miss Worrall for Laskey
    maintained that everyone had a right to consent to the infliction on himself of
    bodily harm not amounting to serious harm or maiming at which point public
    interest intervened. She further argued that having regard to the common law
    offence of keeping a disorderly house and to the various offences created by
    the Sexual Offences Acts 1956 to 1976 it was inappropriate to use the Act of
    1861 for the prosecution of sexual offences because the public interest was
    adequately looked after by the common law offence and the later Acts. Mr.
    Kershen for Brown also argued that the Act of 1861 was an inappropriate
    weapon to use in these cases. He submitted that while deliberate infliction of
    injury resulting in serious bodily harm might be an offence whether or not
    consent was given, deliberate consensual wounding would not be an offence
    if it did not cause serious bodily harm. This latter proposition would appear
    to draw the line somewhere down the middle of section 20. Mr. Kershen
    further argued that if his primary submissions were wrong this House should,
    having regard to the current public interest in freedom of sexual expression,
    lay down new rules for sado-masochistic activities. Mr. Thwaites for Carter
    traced the history of the offence of maiming which deprived the King of
    possible service, invited your Lordships to hold that Rex. v. Donovan [1934]
    2 K.B. 498, and Attorney-General's Reference (No. 6 of 1980), 1981 1 Q.B.
    715, to which I shall refer later, were wrongly decided and submitted that as
    a matter of principle a man could lawfully consent to the infliction of any
    injury upon himself which fell short of maiming.

    In concluding that the consent of the receivers was immaterial to the
    offences charged the Court of Appeal relied on three cases, namely, Reg. v.
    Coney
    (1882) 8 Q.B.D. 534, Rex. v. Donovan [1934] 2 K.B. 498 and
    Attorney-General's Reference (No. 6 of 1980) [1981] QB 715. Before
    examining these cases it is interesting to look at the definitions of "Maim" and
    "Assault" in Hawkins' Pleas of the Crown, 8th ed. (1824), Book 1 in Chapter
    15. Maiming is defined, at p. 107, Sect. 1, as "... such a hurt of any part
    of a man's body whereby he is rendered less able, in fighting, either to defend
    himself or to annoy his adversary . . . . " Examples are then given. Assault
    is defined, at p. 110, Sect. 1, as "... an attempt to offer, with force and
    violence, to do a corporal hurt to another" and battery (Sect. 2) as "... any
    injury whatsoever be it never so small, being actually done to the person of

    - 12 -

    a man in an angry, revengeful, rude, or insolent manner . . . " It is to be
    noted that lack of consent of the victim is stated to be a necessary ingredient
    neither of assault nor of battery. In Coney the 11 judges who heard the case
    held that a prize-fight was unlawful, that all persons aiding and abetting
    therein were guilty of assault, and that consent of the persons actually engaged
    in fighting to the interchange of blows did not afford any answer to the
    criminal charge of common assault. The appellants were spectators at an
    organised fight between two men near a public road. Cave J. said, at p. 539:

    "The true view is, I think, that a blow struck in anger, or which is
    likely or is intended to do corporal hurt, is an assault, but that a blow
    struck in sport, and not likely, nor intended to cause bodily harm, is
    not an assault, and that, an assault being a breach of the peace and
    unlawful, the consent of the person struck is immaterial. If this view
    is correct a blow struck in a prize-fight is clearly an assault; but
    playing with single-sticks or wrestling do not involve an assault; nor
    does boxing with gloves in the ordinary way, and not with the ferocity
    and severe punishment to the boxers deposed to in Reg. v. Orton

    Stephen J. said, at p. 549:

    .

    "The principle as to consent seems to me to be this: When one person
    is indicted for inflicting personal injury upon another, the consent of
    the person who sustains the injury is no defence to the person who
    inflicts the injury, if the injury is of such a nature, or is inflicted under
    such circumstances, that its infliction is injurious to the public as well
    as to the person injured. But the injuries given and received in prize-
    fights are injurious to the public, both because it is against the public
    interest that the lives and the health of the combatants should be
    endangered by blows, and because prize-fights are disorderly
    exhibitions, mischievous on many obvious grounds. Therefore the
    consent of the parties to the blows which they mutually received does
    not prevent those blows from being assaults."

    In this passage Stephen J. clearly considered that prize-fights were likely to
    cause breaches of the peace and that no consent could render fights with such
    a result lawful. In a later passage on the same page he said:

    "In cases where life and limb are exposed to no serious danger in the
    common course of things, I think that consent is a defence to a charge
    of assault, even when considerable force is used, as, for instance, in
    cases of wrestling, single-stick, sparring with gloves, football, and the
    like; but in all cases the question whether consent does or does not
    take from the application of force to another its illegal character, is a
    question of degree depending upon circumstances."

    - 13 -

    In this passage he appears to be considering organised sports where
    danger to life and limb is merely incidental to the main purpose of the
    activity. Hawkins J. said, at p. 553:

    "As a general proposition it is undoubtedly true that there can be no
    assault unless the act charged as such be done without the consent of
    the person alleged to be assaulted, for want of consent is an essential
    element in every assault, and that which is done by consent is no
    assault at all."

    He later said:

    ". . . it is not in the power of any man to give an effectual consent to
    that which amounts to, or has a direct tendency to create, a breach of
    the peace; so as to bar a criminal prosecution."

    Hawkins J. concluded that every fight in which the object and intent of each
    of the combatants was to subdue the other by violent blows tending to a
    breach of the peace was illegal and he distinguished friendly encounters in the

    follow passage, at p. 554:

    "The cases in which it has been held that persons may lawfully engage
    in friendly encounters not calculated to produce real injury to or to
    rouse angry passions in either, do not in the least militate against the
    view I have expressed; for such encounters are neither breaches of the
    peace nor are they calculated to be productive thereof,"

    It is obvious that in concluding that prize-fights were unlawful he was
    influenced mainly, if not entirely, by the fact that they were likely to be
    productive of breaches of the peace. Furthermore, it would in my view be
    wrong to treat the first cited dictum of Hawkins J. as referring to all assaults
    irrespective of the gravity thereof. The court was considering a charge of
    common assault and I do not think that the learned judge was intending to lay
    down a general principle which was applicable also to assaults charged under
    section 47 of the Act of 1861 or to offences under section 20 thereof. Lord
    Coleridge C.J. at p. 567 similarly concluded that the combatants in a prize-
    fight could not consent to commit a breach of the peace.

    Although there was unanimity among the judges in Coney as to consent
    in the particular circumstances affording no answer to a charge of assault,
    there were differing reasons advanced for reaching that conclusion. However,
    Cave, Stephen and Hawkins JJ. and Lord Coleridge C.J. all considered that
    effectual consent could not be given to blows producing or likely to produce
    a breach of the peace. Stephen J. specifically referred to prize-fights being
    injurious to the public as disorderly exhibitions and it may be assumed that the
    other three judges also had in mind the public interest in preventing breaches
    of the peace. Given the fact that the fight took place before a crowd of more
    than 100 persons the likelihood of a breach of the peace would by itself have

    - 14 -

    been sufficient to negative consent without considering the nature and effect
    of the blows struck. Nevertheless, Stephen J. also considered that it was
    against the public interest that blows should endanger the health of the
    combatants. Whether he had in mind only blows which produced a maim is
    not stated although in the editions of his Digest published before and after
    Coney he stated "Everyone has a right to consent to the infliction upon himself
    of bodily harm not amounting to a maim." (3rd ed. (1883) article 206) I do
    not find great assistance in Coney towards the immediate resolution of the
    questions raised in these appeals where the offences charged were statutory
    and where no question of breach of the peace arose. I would therefore sum
    up my analysis of Coney 8 Q.B.D. 534 by concluding that it is authority for
    the proposition that the public interest limits the extent to which an individual
    may consent to infliction upon himself by another of bodily harm and that
    such public interest does not intervene in the case of sports where any
    infliction of injury is merely incidental to the purpose of the main activity.

    In Donovan [1934] 2 K.B. 498 the appellant was charged with indecent
    and common assault upon a girl whom he had beaten with her consent for his
    own sexual gratification. In delivering the judgment of the Court of Criminal
    Appeal Swift J., after citing the passage in the judgment of Cave J. in Coney,
    to which I have already referred, said, at p. 507:

    "If an act is unlawful in the sense of being in itself a criminal act, it
    is plain that it cannot be rendered lawful because the person to whose
    detriment it is done consents to it. No person can license another to
    commit a crime. So far as the criminal law is concerned, therefore,
    where the act charged is in itself unlawful, it can never be necessary
    to prove absence of consent on the part of the person wronged in order
    to obtain the conviction of the wrongdoer. There are, however, many
    acts in themselves harmless and lawful which become unlawful only
    if they are done without the consent of the person affected. What is,
    in one case, an innocent act of familiarity or affection, may, in
    another, be an assault, for no other reason that that, in the one case
    there is consent, and in the other consent is absent. As a general rule,
    although it is a rule to which there are well established exceptions, it
    is an unlawful act to beat another person with such a degree of
    violence that the infliction of bodily harm is a probable consequence,
    and when such an act is proved, consent is immaterial."

    Swift J. also observed that the passage from Stephen's Digest which I
    have quoted above needed considerable qualification in 1934. He went on to
    consider exceptions to the general rule that an act likely or intended to cause
    bodily harm is an unlawful act. Such exceptions included friendly contests
    with cudgels, foils or wrestling which were capable of causing bodily harm,
    rough and undisciplined sports or play where there was no anger and no
    intention to cause bodily harm and reasonable chastisement by a parent for a
    person in loco parentis. He might also have added necessary surgery. After
    referring to the fact that if the appellant acted so as to cause bodily harm he

    - 15 -

    could not plead the gratification of his perverted desires as an excuse, Swift
    J. said, at p. 509:

    "Always supposing, therefore, that the blows which he struck were
    likely or intended to do bodily harm, we are of opinion that he was
    doing an unlawful act, no evidence having been given of facts which
    would bring the case within any of the exceptions to the general rule.
    In our view, on the evidence given at the trial, the jury should have
    been directed that, if they were satisfied that the blows struck by the
    prisoner were likely or intended to do bodily harm to the prosecutrix,
    they ought to convict him, and that it was only if they were not so
    satisfied, that it became necessary to consider the further question
    whether the prosecution had negatived consent. For this purpose we
    think that 'bodily harm' has its ordinary meaning and includes any hurt
    or injury calculated to interfere with the health or comfort of the
    prosecutor. Such hurt or injury need not be permanent, but must, no
    doubt, be more than merely transient and trifling."

    It is clear from the report that the girl did in fact suffer actual bodily harm.

    In Attorney General's Reference (No. 6 of 1980) [1981] QB 715 the
    respondent and the victim had a fistfight in a public street which resulted in
    actual bodily harm to the victim. The respondent was charged with assault
    causing actual bodily harm and was acquitted. The question referred to the

    Court of Appeal was (p. 717):

    "Where two persons fight (otherwise than in the course of sport) in a
    public place can it be a defence for one of those persons to a charge
    of assault arising out of the fight that the other consented to fight?"

    The court answered the question in the negative. Lord Lane C.J. said, at
    p.718H:

    "Bearing in mind the various cases and the views of the text book
    writers cited to us, and starting with the proposition that ordinarily an
    act consented to will not constitute an assault, the question is: at what
    point does the public interest require the court to hold otherwise?"

    He later said, at p. 719C:

    "The answer to this question, in our judgment, is that it is not in the
    public interest that people should try to cause, or should cause, each
    other actual bodily harm for no good reason. Minor struggles are
    another matter. So, in our judgment, it is immaterial whether the act
    occurs in private or in public; it is an assault if actual bodily harm is
    intended and/or caused. This means that most fights will be unlawful
    regardless of consent.

    - 16 -

    "Nothing which we have said is intended to cast doubt upon the
    accepted legality of properly conducted games and sports, lawful
    chastisement or correction, reasonable surgical interference, dangerous
    exhibitions, etc. These apparent exceptions can be justified as
    involving the exercise of a legal right, in the case of chastisement or
    correction, or as needed in the public interest, in the other cases."

    Although the reasoning in these two cases differs somewhat, the conclusion
    from each of them is clear, namely, that the infliction of bodily harm without
    good reason is unlawful and that the consent of the victim is irrelevant. In the
    unreported case of Reg. v. Boyea (28 January 1992), in which the appellant
    was convicted of indecent assault on a woman, Glidewell L.J. giving the
    judgment of the Court of Appeal (Criminal Division) said:

    "The central proposition in Donovan [1934] 2 K.B. 498 is in our view
    consistent with the decision of the court in the Attorney General's
    Reference (No. 6 of 1980)
    [1981] QB 715. That proposition can be
    expressed as follows: an assault intended or which is likely to cause
    bodily harm, accompanied by indecency, is an offence irrespective of
    consent, provided that the injury is not 'transient or trifling'."

    Glidewell L.J. went on to point out that having regard to the change in social
    attitude towards sexual relations "transient and trivial" must be understood in
    the light of conditions prevailing in 1992 rather than in 1934.

    Before considering whether the above four cases were correctly
    decided and if so what relevance they have to these appeals, I must say a
    word about hostility. It was urged upon your Lordships that hostility on the
    pan of the inflicter was an essential ingredient of assault and that this
    ingredient was necessarily lacking when injury was inflicted with the consent
    of the receiver. It followed that none of the activities in question constituted
    assault. The answer to this submission is to be found in the judgment of the
    Court of Appeal in Wilson v. Pringle [1987] QB 237 where it was said, at
    p. 253 that hostility could not be equated with ill will or malevolence. The
    judgment went on to state:

    "Take the example of the police officer in Collins v. Wilcock [1984]
    1 W.L.R. 1172. She touched the woman deliberately, but without an
    intention to do more than restrain her temporarily. Nevertheless, she
    was acting unlawfully and in that way was acting with hostility."

    If the appellant's activities in relation to the receivers were unlawful they were
    also hostile and a necessary ingredient of assault was present.

    It was accepted by all the appellants that a line had to be drawn
    somewhere between those injuries to which a person could consent to
    infliction upon himself and those which were so serious that consent was
    immaterial. They all agreed that assaults occasioning actual bodily harm

    - 17 -

    should be below the line but there was disagreement as to whether all offences
    against section 20 of the Act of 1861 should be above the line or only those
    resulting in grievous bodily harm. The four English cases to which I have
    referred were not concerned with the distinction between the various types of
    assault and did not therefore have to address the problem raised in these
    appeals. However it does appear that in Donovan, the Attorney General's
    Reference (No. 6 of 1980),
    and Boyea the infliction of actual bodily harm was
    considered to be sufficient to negative any consent. Indeed in Donovan and
    Boyea such injuries as were sustained by the two women could not have been
    described as in any way serious. Cave J. in Coney also appeared to take the
    same view. On the other hand, Stephen J. in Coney appeared to consider that
    it required serious danger to life and limb to negative consent, view which
    broadly accords with the passage in his digest to which I have already
    referred. A similar view was expressed by McInerney J. in the Supreme
    Court of Victoria in Pallante v. Stadiums Property Ltd. (No. 1) [1976] V.R.
    331.

    I prefer the reasoning of Cave J. in Coney and of the Court of Appeal
    in the later three English cases which I consider to have been correctly
    decided. In my view the line properly falls to be drawn between assault at
    common law and the offence of assault occasioning actual bodily harm created
    by section 47 of the Offences Against the Person Act 1861, with the result
    that consent of the victim is no answer to anyone charged with the latter
    offence or with a contravention of section 20 unless the circumstances fall
    within one of the well known exceptions such as organised sporting contests
    and games, parental chastisement or reasonable surgery. There is nothing in
    sections 20 and 47 of the Act of 1861 to suggest that consent is either an
    essential ingredient of the offences or a defence thereto. If consent is to be
    an answer to a charge under section 47 but not to one under section 20,
    considerable practical problems would arise. It was held in Reg. v. Savage
    [1992] 1 AC 699 that a verdict of guilty of assault occasioning actual bodily
    harm is a permissible alternative verdict on a count alleging unlawful
    wounding contrary to section 20 (Lord Ackner at p. 740D). A judge charging
    a jury in a section 20 case would therefore not only have to direct them as to
    the alternative verdict available under section 47, but also as to the
    consequences of consent in relation to that alternative only. Such direction
    would be more complex if consent was an answer to wounding under section
    20 but not to the infliction of grievous bodily harm under the same section.
    These problems would not arise if consent is an answer only to common
    assault I would therefore dispose of these appeals on the basis that the
    infliction of actual or more serious bodily harm is an unlawful activity to
    which consent is no answer. In reaching this conclusion I have not found it
    necessary to rely on the fact that the activities of the appellants were in any
    event unlawful inasmuch as they amounted to acts of gross indecency which,
    not having been committed in private, did not fall within section 1(1) of the
    Sexual Offences Act 1967. Notwithstanding the views which I have come to,

    - 18 -

    I think it right to say something about the submissions that consent to the
    activity of the appellants would not be injurious to the public interest.

    Considerable emphasis was placed by the appellants on the well-
    ordered and secret manner in which their activities were conducted and upon
    the fact that these activities had resulted in no injuries which required medical
    attention. There was, it was said, no question of proselytising by the
    appellants. This latter submission sits ill with the following passage in the
    judgment of the Lord Chief Justice:

    "They [Laskey and Cadman] recruited new participants: they jointly
    organised proceedings at the house where much of this activity took
    place; where much of the pain inflicting equipment was stored.

    "Cadman was a voyeur rather than a sado-masochist, but both he and
    Laskey through their operations at the Horwich premises were
    responsible in part for the corruption of a youth "K" to whom the
    judge, rightly in our view, paid particular attention. It is some
    comfort at least to be told, as we were, that "K" is now it seems
    settled into a normal heterosexual relationship."

    Be that as it may, in considering the public interest it would be wrong to look
    only at the activities of the appellants alone, there being no suggestion that
    they and their associates are the only practitioners of homosexual sado-
    masochism in England and Wales. This House must therefore consider the
    possibility that these activities are practised by others and by others who are
    not so controlled or responsible as the appellants are claimed to be. Without
    going into details of all the rather curious activities in which the appellants
    engaged it would appear to be good luck rather than good judgment which has
    prevented serious injury from occurring. Wounds can easily become septic
    if not properly treated, the free flow of blood from a person who is H.I.V.
    positive or who has Aids can infect another and an inflicter who is carried
    away by sexual excitement or by drink or drugs could very easily inflict pain
    and injury beyond the level to which the receiver had consented. Your
    Lordships have no information as to whether such situations have occurred in
    relation to other sado-masochistic practitioners. It was no doubt these dangers
    which caused Lady Mallalieu to restrict her propositions in relation to the
    public interest to the actual rather than the potential result of the activity. In
    my view such a restriction is quite unjustified. When considering the public
    interest potential for harm is just as relevant as actual harm. As Mathew J.
    said in Coney 8 Q.B.D. 534, 547:

    "There is however abundant authority for saying that no consent can
    render that innocent which is in fact dangerous".

    Furthermore, the possibility of proselytisation and corruption of young men
    is a real danger even in the case of these appellants and the taking of video
    recordings of such activities suggest that secrecy may not be as strict as the

    - 19 -

    appellants claimed to your Lordships. If the only purpose of the activity is the
    sexual gratification of one or both of the participants what then is the need of
    a video recording?

    My Lords I have no doubt that it would not be in the public interest
    that deliberate infliction of actual bodily harm during the course of
    homosexual sado-masochistic activities should be held to be lawful. In
    reaching this conclusion I have regard to the information available in these
    appeals and of such inferences as may be drawn therefrom. I appreciate that
    there may be a great deal of information relevant to these activities which is
    not available to your Lordships. When Parliament passed the Sexual Offences
    Act 1967 which made buggery and acts of gross indecency between consenting
    males lawful it had available the Wolfenden Report (1957) (Cmnd. 247) which
    was the product of an exhaustive research into the problem. If it is to be
    decided that such activities as the nailing by A of B's foreskin or scrotum to
    a board or the insertion of hot wax into C's urethra followed by the burning
    of his penis with a candle or the incising of D's scrotum with a scalpel to the
    effusion of blood are injurious neither to B, C and D nor to the public interest
    then it is for Parliament with its accumulated wisdom and sources of
    information to declare them to be lawful.

    Two further matters only require to be mentioned. There was
    argument as to whether consent, where available, was a necessary ingredient
    of the offence of assault or merely a defence. There are conflicting dicta as
    to its effect. In Coney Stephen J. referred to consent as "being no defence",
    whereas in Attorney General's Reference (No. 6 of 1980) [1981] QB 715
    Lord Lane C.J. referred to the onus being on the prosecution to negative
    consent. In Collins v. Wilcock [1984] 1 W.L.R. 1172, 1177F Goff L.J.
    referred to consent being a defence to a battery. If it were necessary, which
    it is not, in this appeal to decide which argument was correct I would hold
    that consent was a defence to but not a necessary ingredient in assault.

    The second matter is the argument that the appellants should have been
    charged under the Sexual Offences Act and not under the Act of 1861. The
    appellants could within the time limit have been charged under the Act of
    1956 with committing acts of gross indecency. However that Act contained
    no provision limiting the effect of sections 20 and 47 of the Act of 1861 to
    offences unconnected with sex. The Wolfenden Report in considering gross
    indecency between males took the view that it usually took one of three forms,
    of which none involved the deliberate infliction of injury. Your Lordships
    were referred to no material which suggested that Parliament, when enacting
    the Act of 1956 had in contemplation the type of activities engaged in by the
    appellants. These activities necessarily comprehended acts of gross indecency
    as referred to in section 13 of the Sexual Offences Act 1956 and section 1(7)
    of the Act of 1967. However, the Wolfenden Report (1957) (Cmnd. 247), at
    paragraph 105 states that from police reports seen by the Committee and other
    evidence acts of gross indecency usually take one of the three forms in which
    none involves violence or injury. The activities of the appellants thus went

    - 20 -

    far beyond the sort of conduct contemplated by the legislature in the foregoing
    statutory provisions and I consider that they were unlawful even when carried
    out in private. In these circumstances there exists no reason why the
    appellants should not have been charged under the Act of 1861.

    I cannot usefully add anything to what my noble and learned friend
    Lord Templeman has said in relation to the appellants' argument on articles
    7 and 8 of the European Convention on Human Rights.

    My Lords, I would answer the certified question in the negative and
    dismiss the appeals.

    LORD LOWRY

    My Lords,

    I have had the advantage of reading in draft the speeches of your
    Lordships. I agree with the reasoning and conclusions of my noble and
    learned friends, Lord Templeman and Lord Jauncey of Tullichettle and I, too,
    would answer the certified question in the negative and dismiss the appeals.

    In stating my own further reasons for this view I shall address myself
    exclusively to the cases in which, as has been informally agreed, one person
    has acted upon another in private, occasioning him actual bodily harm but
    nothing worse.

    The appellants' main point is that, contrary to the view of the trial
    judge and the Court of Appeal, the consent of the victim, as I shall call the
    willing recipient of the sado-masochistic treatment, constitutes a defence to the
    charges of assault occasioning actual bodily harm contrary to section 47 of the
    Offences Against the Person Act 1861 ("the 1861 Act") and of wounding
    contrary to section 20 of the 1861 Act (no more than actual bodily harm being
    occasioned) or, to put it another way, that, when the victim consents, no such
    offence of assault or wounding as I have described takes place.

    Under the law which formerly held sway (and which has been
    thoroughly described and analysed by my noble and learned friend, Lord
    Mustill) consent was a defence to a charge of common assault but not to a
    charge of mayhem or maiming. Everyone agrees that consent remains a
    complete defence to a charge of common assault and nearly everyone agrees
    that consent of the victim is not a defence to a charge of inflicting really
    serious personal injury (or "grievous bodily harm"). The disagreement
    concerns offences which occasion actual bodily harm: the appellants contend
    that the consent of the victim is a defence to one charged with such an

    - 21 -

    offence, while the respondent submits that consent is not a defence. I agree
    with the respondent's contention for reasons which I now explain.

    The 1861 Act was one of several laudable but untidy Victorian
    attempts to codify different areas of the law. From the accusation of
    untidiness I must exempt such measures as the Bills of Exchange Act 1882
    and the Sale of Goods Act 1893, but, in regard to the 1861 Act I would adopt
    the words of paragraph 7.4 of the Law Commission's Consultation Paper No.
    122 ("L.C. 122") published in 1992.

    "Sections 18, 20 and 47 of the 1861 Act are not part of a
    comprehensive legislative code; were not drafted with a view to setting
    out the various offences with which they deal in a logical or graded
    manner; in some cases do not create offences, but merely state the
    punishment for what is regarded as an existing common law offence;
    and, above all, in so doing employ terminology that was difficult to
    understand even in 1861. The sections are virtually the only
    significant part of the extensive series of criminal law statutes passed
    in 1861 that still remains on the statute book. Those Acts as a whole
    attracted early criticism, not least from Sir (James) Fitzjames Stephen:

    'Their arrangement is so obscure, their language so lengthy and
    cumbrous, and they are based upon and assume the existence
    of so many singular common law principles that no-one who
    was not already well acquainted with the law would derive any
    information from reading them.'

    "More recent critics have agreed with these strictures describing the
    1861 Act as 'piece-meal legislation', which is a 'rag-bag of offences
    brought together from a wide variety of sources with no attempt, as
    the draftsman frankly acknowledged, to introduce consistency as to
    substance or as to form.'"

    The 1861 Act has not the form or substance of a true consolidation
    but, with acknowledgments to the work of C. S. Greave, Q.C., L.C. 122
    traces section 18 of the 1861 Act to section 4 of the Offences Against the
    Person Act 1837, (section 20 to section 29 of the Offences Against the Person
    Act (Ireland) 1829) (and section 47 to section 29 of the Administration of
    Criminal Justice Act 1851). I do not think, however, that it would be helpful
    to your Lordships for me to go further back than the 1861 Act itself.

    It follows that the indications to be gathered from the 1861 Act are not
    precise. Nevertheless, I consider that it contains fairly clear signs that, with
    regard to the relevance of the victim's consent as a defence, assault
    occasioning actual bodily harm and wounding which results in actual bodily
    harm are not offences "below the line", to be ranked with common assault as
    offences in connection with which the victim's consent provides a defence, but
    offences "above the line", to be ranked with inflicting grievous bodily harm

    - 22 -

    and the other more serious offences in connection with which the victim's
    consent does not provide a defence. The sections in question, in their original
    form, read as follows:

    "18. Whosoever shall unlawfully and maliciously by any means
    whatsoever wound or cause any grievous bodily harm to any person,
    or shoot at any person, or, by drawing a trigger or in any other
    manner, attempt to discharge any kind of loaded arms at any person,
    with intent, in any of the cases aforesaid, to maim, disfigure, or
    disable any person, or to do some other grievous bodily harm to any
    person, or with intent to resist or prevent the lawful apprehension or
    detainer of any person, shall be guilty of felony, and being convicted
    thereof shall be liable, at the discretion of the court, to be kept in
    penal servitude for life or for any term not less than three years, - or
    to be imprisoned for any term not exceeding two years, with or
    without hard labour, and with or without solitary confinement.

    "20. Whosoever shall unlawfully and maliciously wound or inflict
    any grievous bodily harm upon any other person, with or without any
    weapon or instrument, shall be guilty of a misdemeanour, and being
    convicted thereof shall be liable, at the discretion of the court, to be
    kept in penal servitude for the term of three years, or to be imprisoned
    for any term not exceeding two years, with or without hard labour.

    "47. Whosoever shall be convicted upon an indictment of any assault
    occasioning actual bodily harm shall be liable at the discretion of the
    court to be kept in penal servitude for the term of three years or to be
    imprisoned for any term not exceeding two years with or without hard
    labour; and whosoever shall be convicted upon an indictment for a
    common assault shall be liable, at the discretion of the court, to be
    imprisoned for any term not exceeding one year, with or without hard
    labour."

    I suggest that the following points should be noted:

    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

    - 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.

    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:

    - 24 -

    "In cases where life and limb are exposed to no serious danger in the
    common course of things, I think that consent is a defence to a charge
    of assault, even when considerable force is used ..."

    The learned judge developed this view in his Digest of the Criminal Law,
    where he stated that consent was a defence to a charge of assault occasioning
    actual bodily harm. Archbold adopted that statement, for which there is no
    other judicial authority, until it was disapproved in R. v. Donovan [1934] 2
    K.B. 498, and the editor of later editions of Stephen's Digest has abandoned
    the distinguished author's proposition.

    In Donovan the appellant had been convicted on two counts, indecent
    assault and common assault. The only issue of fact was whether the victim
    consented. The chairman of quarter sessions rightly told the jury that the case
    depended on the issue of consent. The jury must have rejected the appellant's
    evidence, but the Court of Criminal Appeal held that the chairman had
    misdirected the jury as to the burden of proof on the consent issue and
    quashed the conviction. It was obvious what had to be done once the court
    found misdirection on the vital issue, but it is instructive to note what
    happened. Lord Hewart, C.J. is reported in (1934) 25 Cr.App.R. 1, 4, as
    saying at the conclusion of argument:

    "We have come to the conclusion that this trial, dealing as it did with
    a revolting matter, was in various ways unsatisfactory. The court is
    compelled, however reluctantly, to take the view that in the
    circumstances this conviction cannot safely be upheld and that this
    appeal must be allowed. The matter involves, however, more than one
    question of importance and we propose therefore to give our reasons
    for our decision upon a later day."

    Five weeks later, as reported in [1934] 2 K.B. 498, Swift J. delivered
    the judgment of the court, disposing first of the consent issue and another
    point. He then dealt with the question which has some relevance to the
    present appeals and which he introduced as follows, at p. 506:

    "This conclusion would have been enough to dispose of the case were
    it not for the fact that the learned counsel for the Crown relied in this
    Court upon the submission which he had unsuccessfully made at the
    trial, and argued that, this being a case in which it was unnecessary for
    the Crown to prove absence of consent, this Court ought not to quash
    the conviction."

    A doctor who gave evidence for the Crown had said that marks on the
    girl's body two days after the incident indicated "a fairly severe beating";
    therefore clearly actual bodily harm had been caused. The judgment
    continued:

    - 25 -

    "We have given careful consideration to the question of law which this
    submission raises."

    Then, having noted observations of Cave J. in Reg. v. Coney 8 Q.B.D. 334,
    the judge said, at p. 507:

    "We have considered the authorities upon which this view of the
    learned judge was founded, and we think it of importance that we
    should state our opinion as to the law applicable in this case. If an act
    is unlawful in the sense of being in itself a criminal act, it is plain that
    it cannot be rendered lawful because the person to whose detriment it
    is done consents to it. No person can license another to commit a
    crime. So far as the criminal law is concerned, therefore, where the
    act charged
    is in itself unlawful, it can never be necessary to prove
    absence of consent on the part of the person wronged in order to
    obtain the conviction of the wrongdoer." (emphasis supplied).


    . . .

    "As a general rule, although it is a rule to which there are well
    established exceptions, it is an unlawful act to beat another person with
    such a degree of violence that the infliction of bodily harm is a
    probable consequence, and when such an act is proved, consent is
    immaterial. We are aware that the existence of this rule has not
    always been clearly recognized. In his Digest of the Criminal Law
    (6th ed.), Art. 227, Sir James FitzJames Stephen enunciates the
    proposition that 'everyone has a right to consent to the infliction upon
    himself of bodily harm not amounting to a maim.' This may have
    been true in early times when the law of this country showed
    remarkable leniency towards crimes of personal violence, but it is a
    statement which now needs considerable qualification."

    Having referred to East's Pleas of the Crown and Foster's Crown Law,
    Swift J. stated, at p. 508:

    "If an act is malum in se in the sense in which Sir Michael Foster used
    the words, that is to say, is, in itself, unlawful, we take it to be plain
    that consent cannot convert it into an innocent act."

    Having then mentioned the "well established exceptions" to the general rule
    that an act likely or intended to cause bodily harm is an unlawful act, he
    continued, at p. 509:

    "In the present case it was not in dispute that the motive of the
    appellant was to gratify his own perverted desires. If, in the course
    of so doing, he acted so as to cause bodily harm, he cannot plead his
    corrupt motive as an excuse, and it may truly be said of him in Sir
    Michael Foster's words that 'he certainly beat him with an intention

    - 26 -

    of doing him some bodily harm, he had no other intent,' and that what
    he did was malum in se. Nothing could be more absurd or more
    repellent to the ordinary intelligence than to regard his conduct as
    comparable with that of a participant in one of those 'manly
    diversions' of which Sir Michael Foster wrote. Nor is his act to be
    compared with the rough but innocent horse-play in Reg. v. Bruce 2
    Cox C.C. 262. Always supposing, therefore, that the blows which he
    struck were likely or intended to do bodily harm, we are of opinion
    that he was doing an unlawful act, no evidence having been given of
    facts which would bring the case within any of the exceptions to the
    general rule. In our view, on the evidence given at the trial, the jury
    should have been directed that, if they were satisfied that the blows
    struck by the prisoner were likely or intended to do bodily harm to the
    prosecutrix, they ought to convict him, and that it was only if they
    were not so satisfied, that it became necessary to consider the further
    question whether the prosecution had negatived consent."

    This passage is followed by an explanation why, the question not having been
    put to the jury, the court did not feel that, consistently with its practice, it
    could uphold the conviction on the ground argued by Crown counsel.

    I find this pan of the court's judgment hard to follow, when I recall
    the protest made at his trial by Sir Walter Raleigh to Sir Edward Coke: "The
    Crown cannot recover, Mr. Attorney, save secundum allegata et probata."
    This is a universal proposition, not confined to trials of the high and the
    mighty for treason. There were two counts in the indictment, to which
    consent of the victim was a complete defence. If the jury, properly directed,
    had found that consent was not disproved, they must have acquitted the
    appellant of the only charges brought against him. How, then, could they
    have convicted the appellant of either of those charges or of the offence of
    assault, occasioning actual bodily harm, with which he was not charged? It
    will not be overlooked that at p. 507 the judgment ran, "where the act charged
    is in itself unlawful".

    Does the second part of the Court of Criminal Appeal's judgment
    therefore stand condemned in all respects? My Lords, I suggest not. It
    clearly indicates the view of the court that assault, occasioning actual bodily
    harm, is malum in se, an offence for which, absent one of the recognised
    exceptions, the accused will be convicted, even though the victim consents.

    Attorney General's Reference (No. 6 of 1980) [1981] QB 715 was
    relied on by both sides before your Lordships. The charge was one of assault,
    occasioning actual bodily harm; the fight, between youths of 18 and 17 years
    took place in the street; and the question referred was concerned with fighting
    in public. In giving judgment, however, the court expressly made no
    distinction between fighting in public and in private.

    Lord Lane, C.J. introduced the subject by saying, at p. 718:

    - 27 -

    "We think that it can be taken as a starting point that it is an essential
    element of an assault that the act is done contrary to the will and
    without the consent of the victim; and it is doubtless for this reason
    that the burden lies on the prosecution to negative consent. Ordinarily,
    then, if the victim consents, the assailant is not guilty."

    Then he said (p. 718H):

    "Bearing in mind the various cases and the views of the textbook
    writers cited to us, and starting with the proposition that ordinarily an
    act consented to will not constitute an assault, the question is: at what
    point does the public interest require the court to hold otherwise?"

    I would concede that the natural way in which to construe these passages is
    to the effect that (1) there is no assault if the act is consented to by the victim
    and (2) where the victim has consented, a factor directed to the public interest
    is needed in order to make the court hold that an offence has been committed.
    No doubt this is what caused Professor Glanville Williams in Text book of
    Criminal Law
    2nd ed. (1983) at pp. 582-589 to express the view that, by
    vitiating the effect of the victim's consent in cases where the occasioning of
    physical harm seemed to be against the public interest, the courts were
    extending the law against assault and were legislating judicial paternalism.

    The Lord Chief Justice then spoke of the need for a "partly new
    approach" (compared with that found in Coney and Donovan.) He continued,

    at p. 719:

    "The answer to this question" [that is, the question, At what point does
    the public interest require the court to hold otherwise?], "in our
    judgment, is that it is not in the public interest that people should try
    to cause, or should cause, each other actual bodily harm for no good
    reason. Minor struggles are another matter. So, in our judgment, it
    is immaterial whether the act occurs in private or in public; it is an
    assault if actual bodily harm is intended and/or caused. This means
    that most fights will be unlawful regardless of consent.

    "Nothing which we have said is intended to cast doubt upon the
    accepted legality of properly conducted games and sports, lawful
    chastisement or correction, reasonable surgical interference, dangerous
    exhibitions, etc. These apparent exceptions can be justified as
    involving the exercise of a legal right, in the case of chastisement or
    correction, or as needed in the public interest, in the other cases.

    "Our answer to the point of law is No, but not, as the reference
    implies, because the fight occurred in a public place, but because,
    wherever it occurred, the participants would have been guilty of
    assault, subject to self-defence, if, as we understand was the case, they
    intended to and or did cause actual bodily harm."

    - 28 -

    The appellants submitted that this pronouncement was confined to fighting but,
    as Professor Glanville Williams pointed out, the contents of the second
    paragraph cited above appear to contradict this view. Thus we are left with
    the proposition that it is not in the public interest that people should try to
    cause, or should cause, each other actual bodily harm for no good reason and
    that it is an assault if actual bodily harm is caused (except for good reason).

    This principle was adopted in Reg. v. McCoy [1953(2)] S.A.L.R. 4
    (although it was not required in order to decide the case), where the manager
    of an airline caned an air hostess, allegedly with her consent, as a punishment
    for failing to secure her seat belt when landing, and also by the Court of
    Appeal Reg. v. Boyea (28 January 1992 unreported). I think that
    consideration of the 1861 Act and the indications to be derived from the cases
    together provide strong support for the respondents' case on the effect of
    consent on charges involving actual bodily harm. While saying this, I do not
    forget the danger of applying to a particular situation cases decided by judges
    who, in reaching their decisions, were not thinking of that situation at all.

    Let me now consider the judgment of the Court of Appeal in this case,
    reported at [1992] Q.B. 491 and delivered by Lord Lane, C.J. First, I agree
    with the disposal, brief as it was, of the appellants' argument directed to the
    word "hostility". On this point I gladly adopt everything which has been said
    by my noble and learned friend Lord Jauncey. I also concur in the summary
    dismissal of the argument that it was inappropriate for the Crown to have
    proceeded under the 1861 Act. There was a considerable delay and one may
    speculate that the prosecuting authorities had cast around for a suitable vehicle
    for their accusations before finally deciding to proceed under the 1861 Act in
    this unusual case, but the only way of meeting these charges otherwise than
    on the merits was to contend that they amounted to an abuse of process. This
    procedure was not resorted to, which is not surprising in the state of the
    authorities.

    Predictably, the appeal and the judgment in the Court of Appeal were
    mainly occupied with the effect of the victim's consent (p. 497B et seq.).
    Having cited Donovan [1934] 2 K.B. 498, Lord Lane, C.J. drew attention to
    Kenny's Outlines of Criminal Law (p. 499E) and Archbold (p. 499G) and went
    on to consider Attorney General's Reference (No. 6 of 1980) [1981] QB 715.
    Commenting on p. 719, he said (p. 500B):

    "What may be 'good reason' it is not necessary for us to decide. It is
    sufficient to say, so far as the instant case is concerned, that we agree
    with the trial judge that the satisfying of sado-masochistic libido does
    not come within the category of good reason nor can the injuries be
    described as merely transient or trifling."

    In the immediately following paragraph of his judgment the Lord Chief Justice
    shows that what he said in Attorney General's Reference (No. 6 of 1980) was
    intended by him to be of general application:

    - 29 -

    "It was submitted to us that the facts in that case were no different
    from those in the instant case that the principle which is expressed in
    the answer to the Attorney-General's question does not apply to the
    present circumstances. We disagree. In our judgment the principle as
    expressed in Attorney General's Reference (No. 6 of 1980) [1981] Q.B.
    715 does apply. Consequently for those reasons the question of
    consent was immaterial. The judge's ruling was accordingly correct."


    If, as I, too, consider, the question of consent is immaterial, there are
    prima facie offences against sections 20 and 47 and the next question is
    whether there is good reason to add sado-masochistic acts to the list of
    exceptions contemplated in Attorney-General's Reference. In my opinion, the
    answer to that question is "No".

    In adopting this conclusion I follow closely my noble and learned
    friends Lord Templeman and Lord Jauncey. What the appellants are obliged
    to propose is that the deliberate and painful infliction of physical injury should
    be exempted from the operation of statutory provisions the object of which is
    to prevent or punish that very thing, the reason for the proposed exemption
    being that both those who will inflict and those who will suffer the injury wish
    to satisfy a perverted and depraved sexual desire. Sado-masochistic
    homosexual activity cannot be regarded as conducive to the enhancement or
    enjoyment of family life or conducive to the welfare of society. A relaxation
    of the prohibitions in sections 20 and 47 can only encourage the practice of
    homosexual sado-masochism and the physical cruelty that it must involve
    (which can scarcely be regarded as a "manly diversion") by withdrawing the
    legal penalty and giving the activity a judicial imprimatur. As well as all this,
    one cannot overlook the physical danger to those who may indulge in sado-
    masochism. In this connection, and also generally, it is idle for the appellants
    to claim that they are educated exponents of "civilised cruelty". A proposed
    general exemption is to be tested by considering the likely general effect.
    This must include the probability that some sado-masochistic activity, under
    the powerful influence of the sexual instinct, will get out of hand and result
    in serious physical damage to the participants and that some activity will
    involve a danger of infection such as these particular exponents do not
    contemplate for themselves. When considering the danger of infection, with
    its inevitable threat of AIDS, I am not impressed by the argument that this
    threat can be discounted on the ground that, as long ago as 1967, Parliament,
    subject to conditions, legalised buggery, now a well-known vehicle for the
    transmission of AIDS.

    So far as I can see, the only counter-argument is that to place a
    restriction on sado-masochism is an unwarranted interference with the private
    life and activities of persons who are indulging in a lawful pursuit and are
    doing no harm to anyone except, possibly, themselves. This approach, which
    has characterised every submission put forward on behalf of the appellants,
    is derived from the fallacy that what is involved here is the restraint of a
    lawful activity as opposed the refusal to relax existing prohibitions in the 1861

    - 30 -

    Act. If in the course of buggery, as authorised by the 1967 Act, one
    participant, either with the other participant's consent or not, deliberately
    causes actual bodily harm to that other, an offence against section 47 has been
    committed. The 1967 Act provides no shield. The position is as simple as
    that, and there is no legal right to cause actual bodily harm in the course of
    sado-masochistic activity.

    As your Lordships have observed, the appellants have sought to fortify
    their argument by reference to the European Convention on Human Rights.
    On the view which I have taken, Article 7 has no relevance since the question
    of retrospective legislation or a retrospective judicial decision does not arise.

    Article 8.1 of the Convention states that everyone has the right to
    respect for his private and family life, his home and his correspondence. The
    attempts to rely on this article is another example of the appellants' reversal
    of the onus of proof of legality, which disregards the effect of sections 20 and
    47. I would only say, in the first, place, that article 8 is not part of our law.
    Secondly, there has been no legislation which, being post-Convention and
    ambiguous, falls to be construed so as to conform with the Convention rather
    than to contradict it. And thirdly, if one is looking at article 8.2, no public
    authority can be said to have interfered with a right (to indulge in sado-
    masochism) by enforcing the provisions of the 1861 Act. If, as appears to be
    the fact, sado-masochistic acts inevitably involve the occasioning of at least
    actual bodily harm, there cannot be a right under our law to indulge in them.

    For all these reasons I would answer "No" to the certified question and

    would dismiss the appeals.

    LORD MUSTILL

    My Lords.

    This is a case about the criminal law of violence. In my opinion it
    should be a case about the criminal law of private sexual relations, if about
    anything at all. Right or wrong, the point is easily made. The speeches
    already delivered contain summaries of the conduct giving rise to the charges
    under the Offences Against the Person Act 1861 now before the House,
    together with other charges in respect of which the appellants have been
    sentenced, and no longer appeal. Fortunately for the reader my Lords have
    not gone on to describe other aspects of the appellants' behaviour of a similar
    but more extreme kind which was not the subject of any charge on the
    indictment. It is sufficient to say that whatever the outsider might feel about
    the subject-matter of the prosecutions - perhaps horror, amazement or
    incomprehension, perhaps sadness - very few could read even a summary of
    the other activities without disgust. The House has been spared the video

    - 31 -

    tapes, which must have been horrible. If the criminality of sexual deviation
    is the true ground of these proceedings, one would have expected that these
    above all would have been the subject of attack. Yet the picture is quite
    different.

    The conduct of the appellants and of other co-accused was treated by
    the prosecuting authorities in three ways. First, there were those acts which
    fell squarely within the legislation governing sexual offences. These are easily
    overlooked, because attention has properly been concentrated on the charges
    which remain in dispute, but for a proper understanding of the case it is
    essential to keep them in view. Thus, four of the men pleased guilty either
    as principals or as aiders and abettors to the charges of keeping a disorderly
    house. It is worth setting out, with abbreviations, the particulars of a typical
    charge:

    "GWC on divers days between the 1st day of January 1979 and the 5th
    day of November 1987 at . . . Bolton kept a disorderly house to which
    numerous persons resorted in order to take part in, and who did take
    part in, acts of sadistic and masochistic violence, and in accompanying
    acts of lewd, immoral and unnatural kind. IW, PJG, COLIN
    LASKEY and PJK at the same times and at the same place did aid,
    abet, counsel and procure GWH to commit the said offence."

    Laskey also pleaded guilty to two counts of publishing an obscene article.
    The articles in question were video-tapes of the activities which formed the
    subject of some of the counts laid under the Act of 1861.

    The pleas of guilty to these counts, which might be regarded as dealing
    quite comprehensively with those aspects of Laskey's sexual conduct which
    impinged directly on public order attracted sentences of four years reduced on
    appeal to eighteen months imprisonment and three months imprisonment
    respectively. Other persons, not before the House, were dealt with in a
    similar way.

    The two remaining categories of conduct comprised private acts. Some
    were prosecuted and are now before the House. Others, which I have
    mentioned, were not. If repugnance to general public sentiments of morality
    and propriety were the test, one would have expected proceedings in respect
    of the most disgusting conduct to be prosecuted with the greater vigour. Yet
    the opposite is the case. Why is this so? Obviously because the prosecuting
    authorities could find no statutory prohibition apt to cover this conduct.
    Whereas the sexual conduct which underlies the present appeals, although less
    extreme, could at least arguably be brought within sections 20 and 47 of the
    1861 Act because it involved the breaking of skin and the infliction of more
    than trifling hurt.

    I must confess that this distribution of the charges against the
    appellants at once sounds a note of warning. It suggests that the involvement

    - 32 -

    of the Act of 1861 was adventitious. This impression is reinforced when one
    considers the tide of the statute under which the appellants are charged,
    "Offences against the Person". Conduct infringing sections 18, 20 and 47 of
    the Act of 1861 comes before the Crown Courts every day. Typically it
    involves brutality, aggression and violence, of a kind far removed from the
    appellants' behaviour which, however worthy of censure, involved no
    animosity, no aggression, no personal rancour on the part of the person
    inflicting the hurt towards the recipient and no protest by the recipient. In
    fact, quite the reverse. Of course we must give effect to the statute if its
    words capture what the appellants have done, but in deciding whether this is
    really so it in my opinion legitimate to assume that the choice of the Offences
    against the Person Act as the basis for the relevant counts in the indictment
    was made only because no other statute was found which could conceivably
    be brought to bear upon them.

    In these circumstances I find it easy to share the opinion expressed by
    Wills J. in Reg. v. Clarence (1888) 22 Q.B.D. 23, a case where the accused
    had consensual intercourse with his wife, he knowing and she ignorant that he
    suffered from gonorrhoea, with the result that she was infected. The case is
    of general importance, since the Court for Crown Cases Reserved held that
    there was no offence under sections 47 and 20, since both sections required
    an assault, of which the wound or grievous bodily harm was the result, and
    that no assault was disclosed on the facts. For present purposes, however, I
    need only quote from the report, at p. 30:

    " . . . such considerations lead one to pause on the threshold, and
    enquire whether the enactment under consideration could really have
    been intended to apply to circumstances so completely removed from
    those which are usually understood when an assault is spoken of, or to
    deal with matters of any kind involving the sexual relation or act."

    I too am led to pause on the threshold. Asking myself the same question, I
    cannot but give a negative answer. I therefore approach the appeal on the
    basis that the convictions on charges which seem to me so inapposite cannot
    be upheld unless the language of the statute or the logic of the decided cases
    positively so demand. Unfortunately, as the able arguments which we have
    heard so clearly demonstrate, the language of the statute is opaque, and the
    cases few and unhelpful. To these I now turn.

    I THE DECIDED CASES

    Throughout the argument of the appeal I was attracted by an analysis
    on the following lines. First, one would construct a continuous spectrum of
    the infliction of bodily harm, with killing at one end and a trifling touch at the
    other. Next, with the help of reported cases one would identify the point on
    this spectrum at which consent ordinarily ceases to be an answer to a
    prosecution for inflicting harm. This could be called "the critical level". It
    would soon become plain however that this analysis is too simple and that

    - 33 -

    I

    there are certain types of special situation to which the general rule does not
    apply. Thus, for example, surgical treatment which requires a degree of
    bodily invasion well on the upper side of the critical level will nevertheless be
    legitimate if performed in accordance with good medical practice and with the
    consent of the patient. Conversely, there will be cases in which even a
    moderate degree of harm cannot be legitimated by consent. Accordingly, the
    next stage in the analysis will be to identify those situations which have been
    identified as special by the decided cases, and to examine them to see whether
    the instant case either falls within one of them or is sufficiently close for an
    analogy to be valid. If the answer is negative, then the court will have to
    decide whether simply to apply the general law simply by deciding whether
    the bodily harm in the case under review is above or below the critical level,
    or to break new ground by recognising a new special situation to which the
    general law does not apply.

    For all the intellectual neatness of this method I must recognise that it
    will not do. for it imposes on the reported cases and on the diversities of
    human life an order which they do not possess. Thus, when one comes to
    map out the spectrum of ordinary consensual physical harm, to which the
    special situations form exceptions, it is found that the task is almost
    impossible, since people do not ordinarily consent to the infliction of harm.
    In effect, either all or almost all the instances of the consensual infliction of
    violence are special. They have been in the past, and will continue to be in the
    future, the subject of special treatment by the law.

    There are other objections to a general theory of consent and violence.
    Thus, for example, it is too simple to speak only of consent, for it comes in
    various sons. Of these, four spring immediately to mind. First, there is an
    express agreement to the infliction of the injury which was in the event
    inflicted. Next, there is express agreement to the infliction of some harm, but
    not to that harm which in the event was actually caused. These two categories
    are matched by two more, in which the recipient expressly consents not to the
    infliction of harm, but to engagement in an activity which creates a risk of
    harm: again, either the harm which actually results, or to something less.
    These examples do not exhaust the categories, for corresponding with each are
    situations of frequent occurrence in practice where the consent is not express
    but implied. These numerous categories are not the fruit of academic over-
    elaboration, but are a reflection of real life. Yet they are scarcely touched on
    in the cases, which just do not bear the weight of any general theory violence
    and consent.

    Furthermore, when one examines the situations which are said to found
    such a theory it is seen that the idea of consent as the foundation of a defence
    has in many cases been forced on to the theory, whereas in reality the reason
    why the perpetrator of the harm is not liable is not because of the recipient's
    consent, but because the perpetrator has acted in a situation where the consent
    of the recipient forms one, but only one, of the elements which make the act
    legitimate. This concept is clearly expressed in the following extract from the

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    judgment of my noble and learned friend Lord Goff of Chieveley in Collins
    v. Wilcock [1984] 1 W.L.R. 1172, at pp. 1177:

    "We are here concerned primarily with battery. The fundamental
    principle, plain and incontestable, is that every person's body is
    inviolate. It has long been established that any touching of another
    person, however slight, may amount to a battery." So Holt C.J. held
    in Cole v. Turner (1704) 6 Mod. 149 that "the least touching of
    another in anger is a battery." The breadth of the principle reflects the
    fundamental nature of the interest so protected. As Blackstone wrote
    in his Commentaries, 17th ed. (1830), vol. 3, p. 120:

    "the law cannot draw the line between different degrees of violence,
    and therefore totally prohibits the first and lowest stage of it; every
    man's person being sacred, and no other having a right to meddle with
    it, in any the slightest manner."

    The effect is that everybody is protected not only against physical
    injury but against any form of physical molestation.

    "But so widely drawn a principle must inevitably be subject to
    exceptions. For example, children may be subjected to reasonable
    punishment; people may be subjected to the lawful exercise of the
    power of arrest; and reasonable force may be used in self-defence or
    for the prevention of crime. But, apart from these special instances
    where the control or constraint is lawful, a broader exception has been
    created to allow for the exigencies of everyday life. Generally
    speaking, consent is a defence to battery; and most of the physical
    contacts of ordinary life are not actionable because they are impliedly
    consented to by all who move in society and so expose themselves to
    the risk of bodily contact. So nobody can complain of the jostling
    which is inevitable from his presence in, for example, a supermarket,
    an underground station or a busy street; nor can a person who attends
    a party complain if his hand is seized in friendship, or even if his back
    is, within reason, slapped: see Tuberville v. Savage (1669) 1 Mod. 3.
    Although such cases are regarded as examples of implied consent, it
    is more common nowadays to treat them as falling within a general
    exception embracing all physical contact which is generally acceptable
    in the ordinary conduct of daily life. We observe that, although in the
    past it has sometimes been stated that a battery is only committed
    where the action is 'angry, revengeful, rude, or insolent' (see
    Hawkins, Pleas of the Crown, 8th ed. (1824), vol. 1, e. 15, section 2),
    we think that nowadays it is more realistic, and indeed more accurate,
    to state the broad underlying principle, subject to the broad exception."

    In these circumstances I must accept that the existing case-law does not
    sustain a step-by step analysis of the type proposed above. This being so I
    have considered whether there is some common feature of those cases in

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    which consent has been held ineffectual whose presence or absence will
    furnish an immediate solution when the court is faced with a new situation.
    The only touchstone of this kind suggested in argument was the notion of
    "hostility" without which, as Mr. Kershen Q.C. maintained, no offence of
    violence can be made out. This argument, which equates hostility with
    antagonism, is attractive because antagonism felt by the perpetrator against the
    recipient, and expressed in terms of violence, is present in the great majority
    of the offences dealt with by the courts under the Act of 1861. Nevertheless
    I cannot accept it as a statement of the existing law which leads automatically
    to a conclusion on the present appeals. It is true that counsel was able to cite
    a series of cases on indecent conduct with consenting children, beginning with
    Fairclough v. Whipp [1951] 2 All. E.R. 832 in which the absence of hostility
    formed a ground for holding that indecent assaults were not proved. It is
    however clear to my mind that whatever precise meaning the word was
    intended to bear in the judgments there delivered it must have been different
    from the one for which Mr. Kershen now contends. The facts were far
    removed from the present, for the accused persons did nothing to the children
    but merely persuaded them to do certain acts. They used no force, nor
    inflicted any physical harm. It is not surprising that no assault was made out,
    and the decisions do no more than furnish a useful reminder of the care to be
    taken before punishing repugnant sexual conduct under laws aimed at
    violence. Furthermore this theory does not fit the situations at the upper end
    of the scale. The doctor who hastens the end of a patient to terminate his
    agony acts with the best intentions, and quite without hostility to him in any
    ordinary sense of the word, yet there is no doubt that notwithstanding the
    patient's consent he is guilty of murder. Nor has it been questioned on the
    argument of the present appeal that someone who inflicts serious harm,
    because (for example) he is inspired by a belief in the efficacy of a pseudo-
    medical treatment, or acts in conformity with some extreme religious tenet,
    is guilty of an offence notwithstanding that he is inspired only by a desire to
    do the best he can for the recipient. Hostility cannot, as it seems to me, be a
    crucial factor which in itself determines guilt or innocence, although its
    presence or absence may be relevant when the court has to decide as a matter
    of policy how to react to a new situation.

    I thus see no alternative but to adopt a much narrower and more
    empirical approach, by looking at the situations in which the recipient
    consents or is deemed to consent to the infliction of violence upon him, to see
    whether the decided cases teach us how to react to this new challenge. I will
    take them in turn.

    1. Death

    With the exception of a few exotic specimens which have never come
    before the courts, euthanasia is in practice the only situation where the
    recipient expressly consents to being killed. As the law stands today,
    consensual killing is murder. Why is this so? Professor Glanville Williams
    suggests (Text book of Criminal Law, 2nd ed., (1983) pp. 579-580) that the

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    arguments in support are transcendental, and I agree. Believer or atheist, the
    observer grants to the maintenance of human life an overriding imperative, so
    strong as to outweigh any consent to its termination. Some believers and some
    atheists now dissent from this view, but the controversy as to the position at
    common law does not illuminate our present task, which is to interpret a
    statute which is aimed at non-lethal violence.

    Nor is anything gained by study of duelling, an activity in which the
    recipient did not consent to being killed (quite the reverse) but did consent to
    running the risk. The nineteenth century authorities were not too concerned
    to argue the criminality of the practice as between principals, but to stamp
    out this social evil by involving in the criminality those others, such as
    seconds and surgeons, who helped to perpetuate it. A series of Nineteenth
    Century cases, such as Rex. v. Rice (1803) 3 East 581, reiterated that the
    dueller who inflicted the fatal wound was guilty of murder, whether he was
    the challenger or not, and regardless of the fact that the deceased willingly
    took the risk but by then it was already very old law - certainly as old as Rex
    v. Taverner
    (1619) 3 Bulstr. 171 where Coke C.J. and Croke J expounded
    the heinousness of the offence with copious reference to the ancients and to
    Holy Scripture. Killing in cold blood was the sin of Cain, and that was that.
    There is nothing to help us here.

    2. Maiming.

    The act of maiming consisted of ". . . such a hurt of any part of a
    man's body whereby he is rendered less able, in fighting either to defend
    himself or to annoy his adversary . . . " (Hawkins Pleas of the Crown, 8th
    ed., vol. 1, ch. 15, p. 107). Maiming was a felony at common law. Self-
    maiming was also a crime, and consent was no defence to maiming by
    another. Maiming was also, in certain circumstances, a statutory offence under
    a series of Acts, now repealed, beginning with the so-called "Coventry Act".
    and continuing as part of a more general prohibition of serious offences
    against the person until an Act of 1803, 43 Geo. 3 c. 58. Then it seems to
    have disappeared. There is no record of anyone being indicted for maim in
    modern times, and I doubt whether maiming would have been mentioned in
    the present case but for the high authority of Sir James Fitzjames Stephen who
    as late as 1883, in article 206 of the third edition of his Digest of the Criminal
    Law,
    stated that - "Every one has a right to consent to the infliction upon
    himself of bodily harm not amounting to a maim." No reported decision or
    statute was cited in support of this proposition, and the reasoning (according
    to a footnote) rested upon the assertion that below the level of maiming an
    injury was no more than an assault, to which consent was a defence.

    My Lords, I cannot accept that this antique crime any longer marks a
    watershed for the interrelation of violence and consent. In the first place the
    crime is obsolete. The Act of 1861 says nothing about it, as it must have done
    if Parliament had intended to perpetuate maiming as a special category of
    offence. Furthermore, the rationale of maiming as a distinct offence is now

    - 37 -

    quite out of date. Apparently the permanent disablement of an adult male was
    criminal because it cancelled him as a fighting unit in the service of his king.
    I think it impossible to apply this reasoning to the present case.

    Finally, the practical results of holding that maim marks the level at
    what consent ceases to be relevant seem to me quite unacceptable. The point
    cannot be better made that in terms of the only illustration given by Stephen
    J. in article 206 of his work. "It is a maim to strike out a front tooth. It is not
    a maim to cut off a man's nose." Evidently consent would be a defence in the
    latter instance, but not in the former. This not in my view a sound basis for
    a modern law of violence.

    3. Prizefighting, sparring and boxing.

    Far removed as it is from the present appeal, I must take a little time
    over prizefighting, for it furnishes in Reg. v. Coney (1882) 8 Q.B.D 534 one
    of the very few extended judicial analyses of the relationship between violence
    and consent. By the early part of the Nineteenth Century it was firmly
    established that prizefighting was unlawful notwithstanding the consent of the
    fighters. It nevertheless continued to flourish. It is therefore not surprising to
    find that the few and meagrely reported early cases at nisi prius were
    concerned with the efforts of the courts to stamp out the practice by
    prosecuting those who were thought to encourage it by acting as seconds or
    promoters, or just by being present. Although it was at that stage taken for
    granted that the activity was criminal per se, it is significant that in almost all
    the cases the accused were charged with riot, affray or unlawful assembly,
    and that emphasis was given to the tendency of prizefights to attract large and
    unruly crowds. We encounter the same theme when at a later stage, in cases
    such as Coney, Reg. v. Young (1866) 10 Cox C.C. 371 and Reg. v. Orton
    (1878) 39 L.T. 293, the courts were forced to rationalise the distinction
    between prizefighting (unlawful) and sparring between amateurs (lawful). Of
    these cases much the most important was Coney 8 Q.B.D. 534. Burke and
    Mitchell fought in a ring of posts and ropes on private land a short distance
    from a highway. Upwards of one hundred people were present. There was
    no evidence that the fight was for money or reward. Coney, Gilliam and Tully
    were in the crowd. Originally, Burke, Mitchell, and three spectators and
    others who did not appeal were charged under an indictment which contained
    counts against all the accused for riot and other offences against public order,
    but these were dropped and the trial proceeded on two counts alone, one
    alleging (against all the accused except Burke) a common assault upon Burke,
    and the other a kindred count relating to Mitchell. The chairman of quarter
    sessions left to the jury the question whether this was a prize-fight, with a
    direction that if so it was illegal and an assault. He also directed that all
    persons who go to a prize-fight to see the combatants strike each other and
    who are present when they do so are guilty of an assault. The jury convicted
    all the accused. The chairman stated for decision by the Court of Crown Cases
    Reserved the question whether in relation to the three last-named accused his
    direction was right.

    - 38 -

    Two issues arose. First, whether the fighting between Burke and
    Mitchell was an assault. If it was not, none of the accused were guilty of any
    offence. Second, whether the direction as to the participation of the other
    three appellants as aiders and abettors was correct. The court was divided on
    the second issue. But on the first all the judges were agreed that if the
    proceedings constituted a prize-fight then Burke and Mitchell were guilty of
    assault irrespective of the fact that they had agreed to fight.

    Even at first sight it is clear that this decision involved something out
    of the ordinary, for the accused were charged, not with any of the serious
    offences of violence under the Act of 1861 but with common assault; and as
    all concerned in the argument of the present appeal have agreed, in common
    with the judges in Coney itself, consent is usually a defence to such a charge.
    Furthermore it seems that the degree of harm actually inflicted was thought
    to be immaterial, for no reference was made to it in the case stated by
    quarter sessions or (except tangentially) in the judgments of the court. What
    then was the basis for holding that a prize-fight stood outside the ordinary
    rules of criminal violence? Of the eleven judges only five went further than
    to say that the law was well-established. Their reasons were as follows-

    1. Prize-fighting is a breach of the peace. The parties may consent to the
    infliction of blows as a civil wrong, but cannot prevent a breach of the peace
    from being criminal. Per Cave J. at p. 538 of the report, and Stephen J.,
    Hawkins J., and Lord Coleridge C.J. at pp. 549, 553 and 567 respectively.
    As Stephen J. put it, prizefights were "disorderly exhibitions mischievous on
    many obvious grounds".

    1. The participants are at risk of suffering ferocity and severe
      punishment, dreadful injuries and endangerment of life, and are encouraged
      to take the risk by the presence of spectators. It is against the public interest
      that these risks should be run, whether voluntarily or not. Per Cave and
      Mathew JJ., at pp. 539 and 544.

    2. Fists are dangerous weapons like pistols, and prizefighting should be
      proscribed for the same reasons as duelling. Per Mathew J. at p. 547.

    My Lords, there is nothing here to found a general theory of
    consensual violence. The court simply identifies a number of reasons why as
    a matter of policy a particular activity of which consent forms an element
    should found a conviction for an offence where the level of violence falls
    below what would normally be the critical level. As Stephen J. made clear 8
    Q.B.D. 534, 549, the question whether considerations of policy are strong
    enough to take the case outside the ordinary law depends on whether "the
    injury is of such nature or is inflicted under such circumstances that its
    infliction is injurious to the public". Speaking of duels, Bramwell L.J. was
    later to say (in Reg. v. Bradshaw (1878) 14 Cox C.C. 83, 84-85): "No person
    can by agreement go out to fight with deadly weapons, doing by agreement
    what the law savs shall not be done, and thus shelter themselves from the

    - 39 -

    consequences of their acts." (Emphasis added). Precisely the same reliance on
    an empirical or intuitive reference to public policy in substitution for any
    theory of consent and violence are seen in discussions of amateur sparring
    with fists and other sports which involve the deliberate infliction of harm.
    The matter is put very clearly in East, Pleas of the Crown, (1803) vol. 1, ch.
    v, paras. 41 and 42, pp. 268-270:

    " . . . If death ensue from such [sports] as are innocent and
    allowable, the case will fall within the rule of excusable
    homicide; but if the sport be unlawful in itself or productive of
    danger, riot, or disorder, from the occasion, so as to endanger
    the peace, and death ensue; the party killing is guilty of
    manslaughter. . . . Manly sports and exercises which tend to
    give strength, activity and skill in the use of arms, and are
    entered into merely as private recreations among friends, are
    not unlawful; and therefore persons playing by consent at
    cudgels, or foils, or wrestling are excusable if death ensue. For
    though doubtless it cannot be said that such exercises are
    altogether free from danger; yet they are very rarely attended
    with fatal consequences; and each party has friendly warning
    to be on his guard. And if the possibility of danger were the
    criterion by which the lawfulness of sports and recreations was
    to be decided, many exercises must be proscribed which are in
    common use, and were never heretofore deemed unlawful. . .
    . But the latitude given to manly exercises of the nature above
    described, when conducted merely as diversions among friends,
    must not be extended to legalise prize-fighting, public boxing
    matches and the like, which are exhibited for the sake of lucre,
    and are calculated to draw together a number of idle disorderly
    people...And again, such meetings have a strong tendency in
    their nature to a breach of the peace.."

    In his work on Crown Law, 3rd ed. (1809) p. 230, Sir Michael Foster
    put the matter in a similar way when he distinguished beneficial recreations
    such as single-stick fighting from

    "prize-fighting and ....other exertions of courage, strength and activity
    . .which are exhibited for lucre, and can serve no valuable purpose, but
    on the contrary encourage a sprit of idleness and debauchery".

    Thus, although consent is present in both cases the risks of serious
    violence and public disorder make prize-fighting something which "the law
    says shall not be done", whereas the lesser risk of injury, the absence of the
    public disorder, the improvement of the health and skills of the participants,
    and the consequent benefit to the public at large combine to place sparring
    into a different category, which the law says "may be done".

    - 40 -

    That the court is in such cases making a value-judgment, not dependant
    upon any general theory of consent is exposed by the failure of any attempt
    to deduce why professional boxing appears to be immune from prosecution.
    For money, not recreation or personal improvement, each boxer tries to hurt
    the opponent more than he is hurt himself, and aims to end the contest
    prematurely by inflicting a brain injury serious enough to make the opponent
    unconscious, or temporarily by impairing his central nervous system through
    a blow to the midriff, or cutting his skin to a degree which would ordinarily
    be well within the scope of section 20. The boxers display skill, strength and
    courage, but nobody pretends that they do good to themselves or others. The
    onlookers derive entertainment, but none of the physical and moral benefits
    which have been seen as the fruits of engagement in manly sports. I intend no
    disrespect to the valuable judgment of McInearny J. in Pallante v. Stadiums
    Pty.
    [1976] V.R. 331 when I say that the heroic efforts of that learned judge
    to arrive at an intellectually satisfying account of the apparent immunity of
    professional boxing from criminal process have convinced me that the task is
    impossible. It is in my judgment best to regard this as another special situation
    which for the time being stands outside the ordinary law of violence because
    society chooses to tolerate it.

    4. "Contact" sports.

    Some sports, such as the various codes of football, have deliberate
    bodily contact as an essential element. They lie at a mid-point between
    fighting, where the participant knows that his opponent will try to harm him,
    and the milder sports where there is at most an acknowledgement that
    someone may be accidentally hurt. In the contact sports each player knows
    and by taking part agrees that an opponent may from time to time inflict upon
    his body (for example by a rugby tackle) what would otherwise be a painful
    battery. By taking part he also assumes the risk that the deliberate contact may
    have unintended effects, conceivably of sufficient severity to amount to
    grievous bodily harm. But he does not agree that this more serious kind of
    injury may be inflicted deliberately. This simple analysis conceals a number
    of difficult problems, which are discussed in a series of Canadian decisions,
    culminating in Reg. v. Ciccarelli (1989) 54 C.C.C. (3d), 121, on the subject
    of ice hockey, a sport in which an ethos of physical contact is deeply
    entrenched. The courts appear to have started with the proposition that some
    level of violence is lawful if the recipient agrees to it, and have dealt with the
    question of excessive violence by enquiring whether the recipient could really
    have tacitly accepted a risk of violence at the level which actually occurred.
    These decisions do not help us in the present appeal, where the consent of the
    recipients was express, and where it is known that they gladly agreed, not
    simply to some degree of harm but to everything that was done. What we
    need to know is whether, notwithstanding the recipient's implied consent,
    there comes a point at which it is too severe for the law to tolerate. Whilst
    common sense suggests that this must be so, and that the law will not license
    brutality under the name of sport, one of the very few reported indications of
    the point at which tolerable harm becomes intolerable violence is in the

    - 41 -

    direction to the jury given by Bramwell B. in Bradshaw 14 Cox C.C. 83 that
    the act (in this case a charge at football) would be unlawful if intended to
    cause "serious hurt". This accords with my own instinct, but I must recognise
    that a direction at nisi prius, even by a great judge, cannot be given the same
    weight as a judgment on appeal, consequent upon full argument and reflection.
    The same comment may be made about Reg. v. Moore (1898) 14 T.L.R.
    229.

    5. Surgery.

    Many of the acts done by surgeons would be very serious crimes if
    done by anyone else, and yet the surgeons incur no liability. Actual consent,
    or the substitute for consent deemed by the law to exist where an emergency
    creates a need for action, is an essential element in this immunity; but it
    cannot be a direct explanation for it, since much of the bodily invasion
    involved in surgery lies well above any point at which consent could even
    arguably be regarded as furnishing a defence. Why is this so? The answer
    must in my opinion be that proper medical treatment, for which actual or
    deemed consent is a pre-requisite. is in a category of its own.

    6. Lawful correction.

    It is probably still the position at common law, as distinct from statute,
    that a parent or someone to whom the parent has delegated authority may
    inflict physical hurt on his or her child, provided that it does not go too far
    and is for the purpose of correction and not the gratification of passion or
    rage. See Reg. v. Conner (1835) 7 C. & P. 438; Rex. v. Cheeseman (1836)
    7 C. & P. 455; Reg. v. Hopley (1860) 2 F.& F. 202; Reg. v. Griffin (1869)
    11 Cox C.C. 402. These cases have nothing to do with consent, and are useful
    only as another demonstration that specially exempt situations can exist and
    that they can involve an upper limit of tolerable harm.

    7. Dangerous pastimes: bravado: mortification.

    For the sake of completeness I should mention that the list of
    situations in which one person may agree to the infliction of harm, or to the
    risk of infliction of harm, by another includes dangerous pastimes, bravado
    (as where a boastful man challenges another to try to hurt him with a blow)
    and religious mortification. These examples have little in common with one
    another and even less with the present case. They do not appear to be
    discussed in the authorities although dangerous pastimes are briefly mentioned
    and I see no advantage in exploring them here.

    8. Rough horseplay.

    The law recognises that community life (and particularly male
    community life), such as exists in the school playground, in the barrack-room
    and on the factory floor, may involve a mutual risk of deliberate physical

    - 42 -

    contact in which a particular recipient (or even an outsider, as in Reg. v.
    Bruce
    (1847) 2 Cox C.C. 262) may come off worst, and that the criminal law
    cannot be too tender about the susceptibilities of those involved. I think it
    hopeless to attempt any explanation in terms of consent. This is well
    illustrated by Reg. v. Terence Jones (1986) 83 Cr.App.R. 375. The injured
    children did not consent to being thrown in the air at all, nor to the risk that
    they might be thrown so high as to cause serious injury. They had no choice.
    Once again it appears to me that as a matter of policy the courts have decided
    that the criminal law does not concern itself with these activities, provided that
    they do not go too far. It also seems plain that as the general social
    appreciation of what is tolerable and of the proper role of the state in
    regulating the lives of individuals changes with the passage of time, so we
    shall expect to find that the assumptions of the criminal justice system about
    what types of conduct are properly excluded from its scope, and about what
    is meant by going "too far", will not remain constant.

    9. Prostitution.

    Prostitution may well be the commonest occasion for the voluntary
    acceptance of the certainty, as distinct from the risk, of bodily harm. It is
    very different from the present case. There is no pretence of mutual
    affection. The prostitute, as beater or beaten, does it for money. The dearth
    of reported decisions on the application of the 1861 Act clearly shows how the
    prosecuting authorities have (rightly in my view) tended to deal with such
    cases, if at all, as offences against public order. Only in Rex. v. Donovan
    [1934] 2 K.B. 498, amongst the English cases, has the criminality of sexual
    beating been explored.

    The facts were as follows. The accused met the complainant and
    immediately asked her "Where would you like to have your spanking, in Hyde
    Park or in my garage?". Previous telephone conversations had made it clear
    that he wanted to beat her for sexual gratification. She went with him to his
    garage, where he caned her in a manner which left seven or eight marks
    indicative, as a medical witness said, of "a fairly severe beating". He was
    charged with indecent assault and common assault. The defence was that the
    girl consented and that it was for the prosecution to prove that she did not.
    The chairman of quarter sessions directed the jury that the vital issue was
    "consent or no consent", apparently without giving any guidance on burden
    of proof. After retiring for an hour the jury asked a question about reasonable
    belief and consent, which again the chairman answered without reference to
    burden of proof.

    The Court of Criminal Appeal (Lord Hewart C.J., and Swift and du
    Parcq JJ.). quashed the conviction. The fell into two entirely distinct parts.
    The first was concerned with the direction on consent and proceeded on the
    footing that consent was material to guilt and that the burden was on the
    crown to disprove it. This part of the judgment concluded, at p. 506

    - 43 -

    "It is, in our view, at least possible that [a correct direction]
    would have resulted in the acquittal of the appellant, and we
    are, therefore, compelled to come to the conclusion... that the
    trial was not satisfactory."

    On the face of it this conclusion was fatal to the conviction, but the
    court went on to consider an argument for the Crown that this was not so,
    because on the facts the striking of the girl was not an act for which consent
    afforded a defence; so that the absence of a proper direction upon it made no
    difference. On this question the court held that it was for the jury to decide
    whether the situation was such that the consent of the girl was immaterial, and
    that since the issue had never been left to the jury and the trial had proceeded
    on the footing that consent was the key to the case, the appeal ought to be
    decided on the same basis. Accordingly, the direction on consent being
    unsatisfactory the conviction must be quashed.

    How did the court arrive at the opinion that there was an issue for the
    jury which ought to have been tried? As I understand it the course of
    reasoning was as follows-

    1. On the basis of a statement of Cave J. in Coney 8 Q.B.D. 534
    and the old authorities on which it was founded the court was of the
    opinion (p. 507) that -"If an act is unlawful in the sense of being in
    itself a criminal act, it is plain that it cannot be rendered lawful
    because the person to whose detriment it is done consents to it. No
    person can license another to commit a crime. So far as the criminal
    law is concerned, therefore, where the act charged is in itself
    unlawful, it can never be necessary to prove absence of consent on the
    part of the person wronged in order to obtain the conviction of the
    wrongdoer."

    2. "There are, however, many acts in themselves harmless and
    lawful which become unlawful only if they are done without the
    consent of the person affected."

    3. "As a general rule, although it is a rule to which there are
    exceptions, it is an unlawful act to beat another person with such a
    degree of violence that the infliction of bodily harm is a probable
    consequence, and when such an act is proved, consent is immaterial."

    4. The former distinction between maim and other types of injury
    was out of date. Beating with the intent of doing some bodily harm is
    malum in se to which consent is not a defence.

    5. There are exceptions to this general rule, such as sparring,
    sport or horseplay.

    - 44 -

    6. But what happened in the instant case did not fall within any of
    the established exceptions.

    1. For the purpose of the general rule bodily injury meant any hurt
      or injury calculated to interfere with the health or comfort of the
      prosecutor; it need not be permanent, but must be more than merely
      transient or trifling.

    2. It was for the jury to decide whether the appellant had inflicted or
      intended to inflict bodily injury in this sense.

    My Lords, the first two of these propositions have more than once
    been criticised as tautologous. I do not accept this, but will not stay to discuss
    the point for its seems to me that they are right, as the instances of prize-
    fighting and duelling make plain, and as all the counsel appearing in the
    present appeal have agreed. The law simply treats some acts as criminal per
    se irrespective of consent.

    It is with the next stages in the reasoning that I pan company.
    Donovan was charged only with indecent assault, and the latter is an offence
    to which, it is common ground, consent is a defence. Yet the Court of
    Criminal Appeal proceeded on the basis that the critical level of violence was
    that of actual bodily harm, and that the jury should have been directed to
    decide whether he was guilty of facts establishing an offence under section 47
    of the Act of 1861: an offence with which he had not been charged. There is
    something amiss here. What is amiss is that the dictum of Cave J. and the old
    cases said to support it are taken out of their context, which was in each
    instance the kind of battery regarded for reasons of public policy as being in
    a special category which is automatically criminal. Plainly the Court in
    Donovan did not put the beating of the complainant into that category, or the
    appeal would have taken a quite different course. All that the court had to say
    about the nature of the beating was that it was not, as the present appellants
    would have us say, in a category which is automatically innocent.

    10. Fighting.

    I doubt whether it is possible to give a complete list of the situations
    where it is conceivable that one person will consent to the infliction of
    physical hurt by another, but apart from those already mentioned only one
    seems worth considering; namely, what one may call "ordinary" fighting.
    This was the subject of Attorney General's Reference (No. 6 of 1980), [1981]
    Q.B. 715. The accused fell into an argument with another youth in a street.
    They agreed to settle it there and then by a fight, which they did, and as a
    result the other person suffered a bleeding nose and a bruised face. The
    accused was charged with common assault. There was no evidence that
    anyone was present except one bystander, nor that there was any public
    disorder other than the fight itself. The judge directed the jury that the fight
    did not necessarily amount to an assault, and that they should consider

    - 45 -

    whether it was a case of both parties agreeing to fight and use only reasonable
    force. The Attorney General referred for the opinion of the Court of Appeal
    the question -"Where two persons fight (otherwise than in the course of sport)
    in a public place can it be a defence for one of those persons to a charge of
    assault arising out of the fight that the other consented to fight? " When
    answering this question the court consciously broke new ground. No reliance
    was placed on the unsystematic old cases on sparring, or on Donovan, or even
    as I understand it on Coney except as showing that public interest may demand
    a special response to a special situation. Indeed, the protection of public order,
    which had been the principal ground for the recognition of prizefighting as a
    special category in Coney was explicitly discarded. Instead the court began by
    stating that in general consent is a defence to a charge of assault, and went on
    to observe that there might be cases where the public interest demanded
    otherwise. Such a case existed "where people ..try to cause or ...cause each
    other bodily harm for no good reason".

    My Lords, I am not sure that I can detect here the inconsistency for
    which this judgment has been criticised. Perhaps it is unduly complicated to
    suggest that the public interest might annul the defence of consent in certain
    situations and then in the shape of "good reason" re-create it. Nevertheless
    I am very willing to recognise that the public interest may sometimes operate
    in one direction and sometimes in the other. But even if it be correct that
    fighting in private to settle a quarrel is so much against the public interest as
    to make it automatically criminal even if the fighter is charged only with
    assault, (a proposition which I would wish to examine more closely should the
    occasion arise), I cannot accept that the infliction of bodily harm, and
    especially the private infliction of it, is invariably criminal absent some special
    factor which decrees otherwise. I prefer to address each individual category
    of consensual violence in the light of the situation as a whole. Sometimes the
    element of consent will make no difference and sometimes it will make all the
    difference. Circumstances must alter cases.

    For these reasons I consider that the House is free, as the Court of
    Appeal in the present case was not (being bound by Attorney General's
    Reference (No. 6 of 1980)
    was not free) was not, to consider entirely afresh
    whether the pubic interest demands the interpretation of the Act of 1861 in
    such a way as to render criminal under section 47 the acts done by the
    appellants.

    II AN UNLAWFUL ACT

    A question has arisen, not previously canvassed, whether the
    appellants are necessarily guilt because their acts were criminal apart from the
    Offences against the Person Act 1861, and that accordingly a defence of
    consent which might otherwise have been available as an answer to a charge
    under section 47 is to be ruled out. This proposition if correct will have some
    strange practical consequences. First of all, it means that solely because the

    - 46 -

    appellants were guilty of offences under the Sexual Offences Act 1967, with
    which they had not been charged and of which they could not (because of the
    time limit) be convicted they can properly be convicted of crimes of violence
    under a different statute carrying a much larger maximum penalty. The logic
    of this argument demands that if the prosecution can show that a sexual
    harming constitutes some other offence, however trifling and however
    different in character, the prosecution will be able to establish an offence of
    common assault or an offence under the Act of 1861, even if in its absence
    the defendant would not be guilty of any offence at all. Surely this cannot be
    right.

    Moreover, if one returns to offences of the present kind further
    practical anomalies may be foreseen. Not all grossly indecent acts between
    males are indictable under the Sexual Offences Act, 1956. Thus, if the
    criminality of conduct such as the present under the Offences against the
    Person Act is to depend on whether the conduct is criminal on other grounds,
    one would find that the penal status of the acts for the purposes of section 47
    would depend upon whether they were done by two adult males or three adult
    males. I can understand why, in relation to a homosexual conduct, Parliament
    has not yet thought fit to disturb the compromise embodied in the Sexual
    Offences Act 1967, but am quite unable to see any reason to carry a similar
    distinction into the interpretation of a statute passed a century earlier, and
    aimed at quite different evil. Since the point was not raised before the trial
    judge, and the House has properly not been burdened with all the committal
    papers, it is impossible to tell whether, if advanced, it might have affected the
    pleas offered and accepted at the Central Criminal Court, but its potential for
    creating anomalies in other cases seems undeniable.

    I would therefore accede to this argument only if the decided cases so
    demand. In my opinion they do not, for I can find nothing in them to suggest
    that the consensual infliction of hurt is transmuted into an offence of violence
    simply because it is chargeable as another offence. Even in the prizefighting
    cases, which come closest to this idea, the tendency of these events to attract
    a disorderly crowd was relevant not because the fighters might have been
    charged, if anyone had cared to do so, with the separate offence of causing
    a breach of the peace, but rather because this factor was a reason why the
    events were placed as a matter of policy in a category which the law treated
    as being in itself intrinsically unlawful notwithstanding the presence of
    consent. I am satisfied that it was in this sense that the courts made reference
    to the unlawfulness of the conduct under examination, and not to its
    criminality aliunde.

    III THE EUROPEAN CONVENTION ON HUMAN RIGHTS

    The appellants relied on the European Convention on Human
    Rights for two reasons. First, because it was said to support an argument that
    the law as it now stood should be interpreted or developed in a sense
    favourable to the appellants, and secondly because in the event of failure

    - 47 -

    before the House the appellants intend to pursue the matter before the
    European Court of Human Rights, and for this purpose must show that their
    local remedies have been exhausted.

    Two provisions of the Convention are called in aid. The first is article
    7, the proposition being that the convictions cannot be upheld without making
    the appellants guilty in respect of acts which were not criminal when it was
    committed. I am satisfied that this argument is unsound. Many of the acts
    relied on took place after the decision in Attorney General's Reference (No.
    6 of 1980)
    [1981] QB 715, and all of them long postdated Donovan [1934]
    2 K.B. 498. The ruling of the trial judge was perfectly comprehensible in the
    light of these and other decisions. The law was being applied as it was then
    understood. If the view which I now propose were to prevail the law would
    be understood differently. If this happened the appeals would succeed, without
    any reference to article 7. And if, as I understand to be the case, your
    Lordships hold that on the law as it already exists the trial judge's ruling was
    right, there is no change of any kind, whether retrospective or otherwise, that
    could possibly infringe article 7.

    The second argument, ably presented by Miss Sharpston, is altogether
    more substantial. Not of course because the enunciation of a qualified right of
    privacy in article 8 leads inexorably to a conclusion in the appellants' favour,
    since even after all these years the United Kingdom has still failed to comply
    with its treaty obligation to enact the Convention. Nor because I consider that
    the individual provisions of the Convention will always point unequivocally
    to the right answer in a particular case. Far from it. Emphasis on human
    duties will often yield a more balanced and sharply-focused protection for the
    individual than the contemporary preoccupation with human rights. The
    sonorous norms of the Convention, valuable as they unquestionably are in
    recalling errant states to their basic obligations of decency towards those in
    their power, are often at the same time too general and too particular to
    permit a reasoned analysis of new and difficult problems. Article 8 provides
    a good example. The jurisprudence with which this article, in common with
    other terms of the Convention, is rapidly becoming encrusted shows that in
    order to condemn acts which appear worthy of censure they have had to be
    forced into the mould of article 8, and referred to the concept of privacy, for
    want of any other provision which will serve. I do not deny that the privacy
    of the conduct was an important element in the present case, but I cannot
    accept that this fact on its own can yield an answer.

    Nevertheless, I believe that the general tenor of the decisions of the
    European court does furnish valuable guidance on the approach which the
    English court should adopt, if free to do so, and I take heart from the fact that
    the European authorities, balancing the personal considerations invoked by
    article 8(1) against the public interest considerations called up by article 8(2),
    clearly favour the right of the appellants to conduct their private lives
    undisturbed by the criminal law: a conclusion at which I have independently
    arrived for reasons which I must now state.

    - 48 -

    IV PUBLIC POLICY

    The purpose of this long discussion has been to suggest that the decks
    are clear for the House to tackle completely anew the question whether the
    public interest requires section 47 of the 1861 Act to be interpreted as
    penalising an infliction of harm which is at the level of actual bodily harm,
    but not grievous bodily harm; which is inflicted in private (by which I mean
    that it is exposed to the view only of those who have chosen to view it);
    which takes place not only with the consent of the recipient but with his
    willing and glad co-operation; which is inflicted for the gratification of sexual
    desire, and not in a spirit of animosity or rage; and which is not engaged in
    for profit.

    My Lords, I have stated the issue in these terms to stress two
    considerations of cardinal importance. Lawyers will need no reminding of the
    first, but since this prosecution has been widely noticed it must be
    emphasised that the issue before the House is not whether the appellants'
    conduct is morally right, but whether it is properly charged under the Act of
    1861. When proposing that the conduct is not rightly so charged I do not
    invite your Lordships' House to endorse it as morally acceptable. Nor do I
    pronounce in favour of a libertarian doctrine specifically related to sexual
    matters. Nor in the least do I suggest that ethical pronouncements are
    meaningless, that there is no difference between right and wrong, that sadism
    is praiseworthy, or that new opinions on sexual morality are necessarily
    superior to the old, or anything else of the same kind. What I do say is that
    these are questions of private morality; that the standards by which they fall
    to be judged are not those of the criminal law; and that if these standards are
    to be upheld the individual must enforce them upon himself according to his
    own moral standards, or have them enforced against him by moral pressures
    exerted by whatever religious or other community to whose ethical ideals he
    responds. The point from which I invite your Lordships to depart is simply
    this, that the state should interfere with the rights of an individual to live his
    or her life as he or she may choose no more than is necessary to ensure a
    proper balance between the special interests of the individual and the general
    interests of the individuals who together comprise the populace at large.
    Thus, whilst acknowledging that very many people, if asked whether the
    appellants' conduct was wrong, would reply "Yes, repulsively wrong", I
    would at the same time assert that this does not in itself mean that the
    prosecution of the appellants under sections 20 and 47 of the Offences against
    the Person Act 1861 is well founded.

    This point leads directly to the second. As I have ventured to formulate
    the crucial question, it asks whether there is good reason to impress upon
    section 47 an interpretation which penalises the relevant level of harm
    irrespective of consent: i.e. to recognise sado-masochistic activities as falling
    into a special category of acts, such as duelling and prize-fighting, which "the
    law says shall not be done." This is very important, for if the question were
    differently stated it might well yield a different answer. In particular, if it

    - 49 -

    were to be held that as a matter of law all infliction of bodily harm above the
    level of common assault is incapable of being legitimated by consent, except
    in special circumstances, then we would have to consider whether the public
    interest required the recognition of private sexual activities as being in a
    specially exempt category. This would be an altogether more difficult
    question and one which I would not be prepared to answer in favour of the
    appellants, not because I do not have my own opinions upon it but because
    I regard the task as one which the courts are not suited to perform, and which
    should be carried out, if at all, by Parliament after a thorough review of all
    the medical, social, moral and political issues, such as was performed by the
    Wolfenden Committee. Thus, if I had begun from the same point of departure
    as my noble and learned friend Lord Jauncey of Tullichettle I would have
    arrived at a similar conclusion; but differing from him on the present state of
    the law. I venture to differ.

    Let it be assumed however that we should embark upon this question.
    I ask myself, not whether as a result of the decision in this appeal, activities
    such as those of the appellants should cease to be criminal, but rather whether
    the Act of 1861 (a statute which I venture to repeat once again was clearly
    intended to penalise conduct of a quite different nature) should in this new
    situation be interpreted so as to make it criminal. Why should this step be
    taken? Leaving aside repugnance and moral objection, both of which are
    entirely natural but neither of which are in my opinion grounds upon which
    the court could properly create a new crime, I can visualise only the following
    reasons:

    1. Some of the practices obviously created a risk of genito-urinary
    infection, and others of septicaemia. These might indeed have been grave in
    former times, but the risk of serious harm must surely have been greatly
    reduced by modern medical science.

    2. The possibility that matters might get out of hand, with grave results.
    It has been acknowledged throughout the present proceedings that the
    appellants' activities were performed as a pre-arranged ritual, which at the
    same time enhanced their excitement and minimised the risk that the infliction
    of injury would go too far. Of course things might go wrong and really
    serious injury or death might ensue. If this happened, those responsible would
    be punished according to the ordinary law, in the same way as those who kill
    or injure in the course of more ordinary sexual activities are regularly
    punished. But to penalise the appellants' conduct even if the extreme
    consequences do not ensue, just because they might have done so would
    require an assessment of the degree of risk, and the balancing of this risk
    against the interests of individual freedom. Such a balancing is in my opinion
    for Parliament, nor the courts; and even if your Lordships' House were to
    embark upon it the attempt must in my opinion fail at the outset for there is
    no evidence at all of the seriousness of the hazards to which sado-masochistic
    conduct of this kind gives rise. This is not surprising, since the impressive
    argument of Mr. Purnell Q.C. for the respondents did not seek to persuade

    - 50 -

    your Lordships' to bring the matter within the Act of 1861 on the ground of
    special risks, but rather to establish that the appellants are liable under the
    general law
    because the level of harm exceeded the critical level marking off
    criminal from non-criminal consensual violence which he invited your
    Lordships to endorse.

    3. I would give the same answer to the suggestion that these activities
    involved a risk of accelerating the spread of auto-immune deficiency
    syndrome, and that they should be brought within the Act of 1861 in the
    interests of public health. The consequence would be strange, since what is
    currently the principal cause for the transmission of this scourge, namely
    consenting buggery between males, is now legal. Nevertheless, I would have
    been compelled to give this proposition the most anxious consideration if there
    had been any evidence to support it. But there is none, since the case for the
    respondent was advanced on an entirely different ground.

    4. There remains an argument to which I have given much greater
    weight. As the evidence in the present case has shown, there is a risk that
    strangers (and especially young strangers) may be drawn into these activities
    at an early age and will then become established in them for life. This is
    indeed a disturbing prospect, but I have come to the conclusion that it is not
    a sufficient ground for declaring these activities to be criminal under the Act
    of 1861. The element of the corruption of youth is already catered for by the
    existing legislation; and if there is a gap in it which needs to be filled the
    remedy surely lies in the hands of Parliament, not in the application of a
    statute which is aimed at other forms of wrong-doing. As regards
    proselytisation for adult sado-masochism the argument appears to me circular.
    For if the activity is not itself so much against the public interest that it ought
    to be declared criminal under the Act of 1861 then the risk that others will be
    induced to join in cannot be a ground for making it criminal.

    Leaving aside the logic of this answer, which seems to me
    impregnable, plain humanity demands that a court addressing the criminality
    of conduct such as that of the present should recognise and respond to the
    profound dismay which all members of the community share about the
    apparent increase of cruel and senseless crimes against the defenceless. Whilst
    doing so I must repeat for the last time that in the answer which I propose I
    do not advocate the de-criminalisation of conduct which has hitherto been a
    crime; nor do I rebut a submission that a new crime should be created,
    penalising this conduct, for Mr. Purnell has rightly not invited the House to
    take this course. The only question is whether these consensual private acts
    are offences against the existing law of violence. To this question I return a
    negative response.

    V CONCLUSION

    Accordingly I would allow these appeals and quash such of the
    convictions as are now before the House.

    - 51 -

    LORD SLYNN OF HADLEY

    My Lords,

    The Court of Appeal (Criminal Division) when granting leave to the
    appellants to appeal to the House of Lords certified that a point of law of
    general importance was involved in their decision to dismiss the appeal,

    namely:

    "Where A wounds or assaults B occasioning him actual bodily harm
    in the course of a sadomasochistic encounter, does the prosecution
    have to prove lack of consent on the part of B before they can
    establish A's guilt under section 20 and section 47 of the 1861
    Offences Against the Person Act?"

    By section 20 "Whosoever shall unlawfully and maliciously wound or
    inflict any grievous bodily harm upon any other person, . . . shall be liable
    to imprisonment . . ." and by section 47 "whosoever shall be convicted on
    indictment of any assault occasioning actual bodily harm shall be liable . . .
    to imprisonment."

    The trial judge ruled as a preliminary issue that:

    " 1. It is an assault deliberately to strike or touch another person
    other than in self defence with the intention thereby to cause bodily
    harm, or a fortiori so to act so that bodily harm is thereby caused
    intentionally or recklessly.

    "2. Such an act or touching can be excused on the grounds that it
    was lawfully carried out. Therefore whether consent is an element of
    the offence itself, or whether it is to be treated as a defence in
    exception to the general rule that I have stated, it is, accordingly, in
    some cases a defence to the charge that the subject consented."

    The circumstances of this case do not permit these defendants
    to rely on consent as a defence in law if any of them have carried out
    acts satisfying the conditions under my first heading."

    On the basis of that ruling the appellants pleaded guilty to the charges
    under section 47 of the Act (actual bodily harm) and to wounding (though not
    to inflicting grievous bodily harm) under section 20 of the Act.

    Some of the appellants and certain others also pleaded guilty to other
    offences concerned with keeping a disorderly house, for which longer
    sentences were imposed than those on the assault charges, and with the

    - 52 -

    publication and possession of obscene or indecent articles, for which sentences
    of imprisonment were also imposed.

    The argument on both sides has proceeded on the basis of earlier
    authorities that bodily harm means any hurt or injury that is calculated to or
    does interfere with the health or comfort of the subject but must be more than
    transient or trifling; that grievous bodily harm means really serious bodily
    harm and that wounding involves the breaking of the whole skin. Common
    assault would include any physical touching which did not fall within these
    categories.

    The facts upon which the convictions under appeal were based are
    sufficiently and clearly set out in the judgment of Lord Lane C.J. and
    fortunately it is not necessary to repeat them. Nor is it necessary to refer to
    other facts which are mentioned in the papers before the House which can
    only add to one's feeling of revulsion and bewilderment that anyone (in this
    case men, in other cases mutatis mutandis, men and women or women) should
    wish to do or to have done to him or her the acts so revealed. Some of those
    other facts, though no less revolting to most people than the facts set out in
    the charges, could not possibly have constituted an assault in any of the
    degrees to which I have referred.

    The determination of the appeal, however, does not depend on
    bewilderment or revulsion or whether the right approach for the House in the
    appeal ought to be liberal or otherwise. The sole question is whether when
    a charge of assault is laid under the two sections in question, consent is
    relevant in the sense either that the prosecution must prove a lack of consent
    on the pan of the person to whom the act is done or that the existence of
    consent by such person constitutes a defence for the person charged.

    If, as seems clear on previous authority, it was a general rule of the
    common law that any physical touching could constitute a battery, there was
    an exception where the person touched expressly or impliedly consented. As
    Goff L.J. put it in Collins v. Wilcock [1984] 1 W.L.R. 1172, 1177:
    "Generally speaking, consent is a defence to battery." As the word
    "generally" suggests the exception was itself subject to exceptions. Thus in
    Stephen's Digest of the Criminal Law 3rd ed. (1883) it is stated in article 206
    "Everyone has a right to consent to the infliction upon himself of bodily harm
    not amounting to a maim". By way of footnote it is explained that "Injuries
    short of maims are not criminal at common law unless they are assaults, but
    an assault is inconsistent with consent". Maim could not be the subject matter
    of consent since it rendered a man less able to fight or defend himself.
    (Hawkins Pleas of the Crown, 8th ed., Book 1, p. 107). Nor could a person
    consent to the infliction of death (Stephens, Digest, 3rd ed. article 207) or to
    an infliction of bodily harm in such manner as to amount to a breach of the
    peace (article 208). It was "uncertain to what extent any person has a right
    to consent to his being put in danger of death or bodily harm by the act of

    - 53 -

    another" (article 209), where the example given suggests that dangerous acts
    rendering serious bodily harm likely were contemplated.

    The law has recognised cases where consent, expressed or implied, can
    be a defence to what would otherwise be an assault and cases where consent
    cannot be a defence. The former include surgical operations, sports, the
    chastisement of children, jostling in a crowd, but all subject to a reasonable
    degree of force being used, tattooing and earpiercing; the latter include death
    and maiming. None of these situations, in most cases pragmatically accepted,
    either covers or is analogous to the facts of the present case.

    It is, however, suggested that the answer to the question certified flows
    from the decisions in three cases.

    The first is R. v. Coney (1882) 8 Q.B.D. 534. This is a somewhat
    remarkable case in that not only the two participants in a prize-fight but a
    number of observers were convicted of a common assault. The case was said
    to be relevant to the present question since it was decided that consent was not
    a defence to common assault. It is, however, accepted in the present appeal
    that consent can be a defence to common assault. Moreover it is plain from
    the judgment as a whole that a fight of this kind, since in public, either did,
    or had a direct tendency to, create a breach of the peace. It drew large
    crowds who gambled, who might have got excited and have fought among
    themselves. Moreover it was plain that such fights were brutal - the fighters
    went out to kill or very gravely injure their opponents and they fought until
    one of them died or was very gravely injured. As Mathew J. put it, at p.
    544:

    ". . . the chief incentive to the wretched combatants to fight on until
    (as happens too often) deadly injuries have been inflicted and life
    endangered or sacrificed, is the presence of spectators watching with
    keen interest every incident of the fight."

    This emphasis on the risk of a breach of the peace and the great danger to the
    combatants is to be found in all of the judgments in the case. (See, for
    example, pp. 538, 544, 546, 554, 562, 567). I cite only the judgment of
    Stephen J. at p. 549:

    "The principle as to consent seems to me to be this: when one person
    is indicted for inflicting personal injury upon another, the consent of
    the person who sustains the injury is no defence to the person who
    inflicts the injury, if the injury is of such a nature, or is inflicted under
    such circumstances, that its infliction is injurious to the public as well
    as to the person injured. But the injuries given and received in prize-
    fights are injurious to the public, both because it is against the public
    interest that the lives and the health of the combatants should be
    endangered by blows, and because prize-fights are disorderly
    exhibitions, mischievous on many obvious grounds. Therefore the

    - 54 -


    consent of the parties to the blows which they mutually receive does
    not prevent those blows from being assaults."

    The second case is Rex. v. Donovan [1934] 2 K.B. 498. Here the,
    appellant, in private for his sexual gratification, caned a girl, who consented
    and was paid. The appeal was allowed because the question of consent was
    not left to the jury yet it was said that if the act done was itself unlawful,
    consent to the act could not be a defence. This, however, was a long way
    from Coney, upon which the essential passage in the judgment was largely
    based, where the act was held to be unlawful in all circumstances regardless
    of consent. In Donovan there was accepted to be an issue for the jury as to
    whether the prosecution had proved that the girl had not consented and
    whether the consent was immaterial.

    The third case is the Attorney General's Reference (No. 6 of 2980)
    [1981] QB 715. Here two youths fought following an argument. There was
    one bystander but no suggestion of public disorder as in Coney. If the
    judgment had been limited to the fact that the fight took place in public then
    there would clearly have been a possibility of a breach of the peace being
    caused; but the court laid down (p. 719C) that even consensual fighting in
    private constitutes an assault on the basis that consent is no defence "where
    people . . . try to cause . . . or cause each other bodily harm for no good
    reason."

    I am not satisfied that fighting in private is to be treated always and
    necessarily as so much contrary to the public interest that consent cannot be
    a defence. In any event I think that the question of consent in regard to a
    fight needs special consideration. If someone is attacked and fights back he
    is not to be taken as consenting in any real sense. He fights to defend
    himself. If two people agree to fight to settle a quarrel the persons fighting
    may accept the risk of being hurt; they do not consent to serious hurt, on the
    contrary the whole object of the fight is to avoid being hurt and to hurt the
    opponent. It seems to me that the notion of "consent" fits ill into the situation
    where there is a fight. It is also very strange that a fight in private between
    two youths where one may, at most, get a bloody nose should be unlawful,
    whereas a boxing match where one heavyweight fighter seeks to knock out his
    opponent and possibly do him very serious damage should be lawful.

    Accordingly I do not consider that any of these three cases is
    conclusive in resolving the present question.

    These decisions are not in any event binding upon your Lordships'
    House and the matter has to be considered as one of principle.

    Three propositions seem to me to be clear.

    It is ". . . inherent in the conception of assault and battery that the
    victim does not consent" (Glanville Williams [1962] Grim. L.R. 74, 75).

    - 55 -

    Secondly, consent must be full and free and must be as to the actual level of
    force used or pain inflicted. Thirdly, there exist areas where the law
    disregards the victim's consent even where that consent is freely and fully
    given. These areas may relate to the person (e.g. a child); they may relate to
    the place (e.g. in public); they may relate to the nature of the harm done. It
    is the latter which is in issue in the present case.

    I accept that consent cannot be said simply to be a defence to any act
    which one person does to another. A line has to be drawn as to what can and
    as to what cannot be the subject of consent. In this regard it is relevant to
    recall what was said by Stephen J. in Reg. v. Coney 8 Q.B.D. 534, 549.
    Even though he was referring to the position at common law, his words seem
    to me to be of relevance to a consideration of the statute in question.

    "In cases where life and limb are exposed to no serious danger in the
    common course of things, I think that consent is a defence to a charge
    of assault, even when considerable force is used that, as, for instance,
    in cases of wrestling, single-stick, sparring with gloves, football, and
    the like; but in all cases the question whether consent does or does not
    take from the application of force to another its illegal character, is a
    question of degree depending upon circumstances."

    There are passages in the judgment of Mclnerney J. in the Australian
    case of Pallante v. Stadiums Pty. Ltd. (No. 1) [1976] V.R. 331, where a
    boxing match was in issue which also seem to me to be helpful.

    Thus at p. 340:

    "It is easy to understand the proposition that if the harm to which
    consent is alleged to have been given is really grievous, as, for
    instance, in a case of maiming, the consent should be treated as
    nugatory: see, for instance, Stephen's Digest of Criminal Law (1926)
    7th ed., Article 290. In Cross and Jones, An Introduction to Criminal
    Law,
    7th ed., p. 40, it is suggested as a reason for this conclusion that
    the injured person is likely to become the charge of society. This may
    be a good enough reason but I would think it is not the primary
    reason. The primary reason, I would think, is that, as a general
    proposition, it injures society if a person is allowed to consent to the
    infliction on himself of such a degree of serious physical harm. . . .

    "Grievous bodily harm is now to be understood as meaning 'really
    serious bodily harm'. So understood, the dictum of Stephen J. in
    Coney's case" [i.e. at p. 549, that the infliction of the blows is
    regarded as injurious to the public as well as to the person injured]
    "may, as Cross and Jones point out in the work cited at p. 40, require
    to be understood as meaning that a person can lawfully consent to the
    infliction of bodily harm upon himself provided it falls short of being
    grievous bodily harm."

    - 56 -

    I do not think a line can simply be drawn between "maiming" and
    death on the one hand and everything else on the other hand. The rationale
    for negating consent when maiming occurred has gone. It is, however,
    possible to draw the line, and the line should be drawn, between really serious
    injury on the one hand and less serious injuries on the other. I do not accept
    that it is right to take common assault as the sole category of assaults to which
    consent can be a defence and to deny that defence in respect of all other
    injuries. In the first place the range of injuries which can fall within "actual
    bodily harm" is wide - the description of two beatings in the present case
    show that one is much more substantial than the other. Further, the same is
    true of wounding where the test is whether the skin is broken and where it can
    be more or less serious. I can see no significant reason for refusing consent
    as a defence for the lesser of these cases of actual bodily harm and wounding.

    If a line has to be drawn, as I think it must, to be workable, it cannot
    be allowed to fluctuate within particular charges and in the interests of legal
    certainty it has to be accepted that consent can be given to acts which are said
    to constitute actual bodily harm and wounding. Grievous bodily harm I accept
    to be different by analogy with and as an extension of the old cases on
    maiming. Accordingly, I accept that other than for cases of grievous bodily
    harm or death, consent can be a defence. This in no way means that the acts
    done are approved of or encouraged. It means no more than that the acts do
    not constitute an assault within the meaning of these two specific sections of
    the Offences against the Person Act 1861.

    None of the convictions in the present cases have been on the basis that
    grievous bodily harm was caused. Whether some of the acts done in these
    cases might have fallen within that category does not seem to me to be
    relevant for present purposes.

    Even if the act done constitutes common assault, actual bodily harm
    or wounding, it remains to be established that the act was done otherwise than
    in public and that it was done with full consent. I do not accept the suggested
    test, as to whether an offence is committed, to be whether there is expense to
    the state in the form of medical assistance or social security payments. It
    seems to me better to ask whether the act was done in private or in public: is
    the public harmed or offended by seeing what is done or is a breach of the
    peace likely to be provoked? Nor do I consider that "hostility" in the sense
    of "aggression" is a necessary element to an assault. It is sufficient if what
    is done is done intentionally and against the will of the person to whom it is
    done. These features in themselves constitute "hostility".

    In Reg. v. Wollaston (1872) 12 Cox C.C. 180 (where indecent assault
    was charged) Kelly C.B., with whom the rest of the Court concurred, said,
    at p. 181:

    "If anything is done by one being upon the person of another, to make
    the act an assault, it must be done without the consent and against the

    - 57 -

    will of the person upon whom it is done. Mere submission is not
    consent, for there may be submission without consent, and while the
    feelings are repugnant to the act being done. Mere submission is
    totally different from consent. But in the present case there was actual
    participation by both parties in the act done, and complete mutuality."

    In the present cases there is no doubt that there was consent; indeed
    there was more than mere consent. Astonishing though it may seem, the
    persons involved positively wanted, asked for, the acts to be done to them,
    acts which it seems from the evidence some of them also did to themselves.
    All the accused were old enough to know what they were doing. The acts
    were done in private. Neither the applicants nor anyone else complained as
    to what was done. The matter came to the attention of the police
    "coincidentally"; the police were previously unaware that the accused were
    involved in these practices though some of them had been involved for many
    years. The acts did not result in any permanent or serious injury or disability
    or any infection and no medical assistance was required even though there
    may have been some risk of infection, even injury.

    There has been much argument as to whether lack of consent is a
    constituent of the offence which must be proved by the prosecution or whether
    consent is simply raised by way of defence. Reliance is placed on the
    Canadian case of Reg. v. Ciccarelli (1989) 54 C.C.C. (3d) 121, 123, where
    it is said that in the absence of express consent the Crown must prove that the
    victim did not impliedly consent to the act done. That decision, however, is
    in the context of section 244 of the Criminal Code, (revised statutes of Canada
    1970) which provides that: "A person commits an assault when, without the
    consent of another person, or with consent (a) he applies force intentionally
    to the person of the other, directly or indirectly; . . . " In the present statute
    there is no such provision, but it seems to me that here too the onus is on the
    prosecution to prove that there was no consent on the part of the person said
    to have been assaulted.

    It has been suggested that if the act done is otherwise unlawful then
    consent cannot be a defence, but it can be a defence, if the act is otherwise
    lawful, in respect of injury which is less than really serious injury. That
    would produce the result in the present case that if these acts are done by two
    men they would be lawful by reason of section 1 of the Sexual Offences Act
    1967, even though the acts are far away from the kinds of homosexual acts
    which the Wolfenden Report had in mind (see paragraph 105 of the Report);
    in that situation, consent, it is said, would be a defence. If on the other hand
    three men took part, the activity would be unlawful under the Act of 1967 so
    that there could be no consent to the acts done. But it would also appear to
    mean that if these acts were done mutatis mutandis by a man and a woman,
    or between two men and a woman, or a man and two women, where the
    activity was entirely heterosexual, consent would prevent there being an
    offence. I do not find that this distinction produces an acceptable result.

    - 58 -

    My conclusion is thus that as the law stands, adults can consent to acts
    done in private which do not result in serious bodily harm, so that such acts
    do not constitute criminal assaults for the purposes of the Act of 1861. My
    conclusion is not based on the alternative argument that for the criminal law
    to encompass consensual acts done in private would in itself be an unlawful
    invasion of privacy. If these acts between consenting adults in private did
    constitute criminal offences under the Act of 1861, there would clearly be an
    invasion of privacy. Whether that invasion would be justified and in
    particular whether it would be within the derogations permitted by article 8(2)
    of the European Convention on Human Rights, it is not necessary, on the
    conclusion to which I have come, to decide, despite the interesting arguments
    address to your Lordships on that question and even on the basis that English
    law includes a principle parallel to that set out in the European Convention on
    Human Rights.

    Mr. Kershaw Q.C. contended in a very helpful argument that the
    answer to the question should be on the basis (a) of existing law or (b) that a
    new ruling was to be given. My conclusion is on the basis of what I consider
    existing law to be. I do not consider that it is necessary for the House in its
    judicial capacity to give what is called "a new ruling" based on freedom of
    expression, public opinion, and the consequences of a negative ruling on those
    whom it is said can only get satisfaction through these acts; indeed the latter
    I regard as being of no or at best of little relevance to the decision in this
    case. Nor do I think that it is for your Lordships to make new law on the
    basis of the position in other states so that English law can "keep in line". All
    these are essentially matters, in my view, to be balanced by the legislature if
    it is thought necessary to consider the making criminal of sado-masochistic
    acts per se. The problems involved are carefully analysed by Dr. L.H. Leigh
    in Sado-masochism, Consent and the Reform of the Criminal Law'"(1976) 39
    M.L.R. 130.

    The Director of Public Prosecution contends in her written
    submissions:

    "In the end it is a matter of policy. Is/are the state/courts right to
    adopt a paternalistic attitude as to what is bad or good for subjects, in
    particular as to deliberate injury."

    I agree that in the end it is a matter of policy. It is a matter of policy
    in an area where social and moral factors are extremely important and where
    attitudes can change. In my opinion it is a matter of policy for the legislature
    to decide. If society takes the view that this kind of behaviour, even though
    sought after and done in private, is either so new or so extensive or so
    undesirable that it should be brought now for the first time within the criminal
    law, then it is for the legislature to decide. It is not for the courts in the
    interests of "paternalism", as referred to in the passage I have quoted, or in
    order to protect people from themselves, to introduce, into existing statutory
    crimes relating to offences against the person, concepts which do not properly

    - 59 -

    fit there. If Parliament considers that the behaviour revealed here should be
    made specifically criminal, then the Offences against the Person Act 1861 or,
    perhaps more appropriately, the Sexual Offences Act 1967 can be amended
    specifically to define it. Alternatively, if it is intended that this sort of
    conduct should be lawful as between two persons but not between more than
    two persons as falling within the offence of gross indecency, then the
    limitation period for prosecution can be extended and the penalties increased
    where sadomasochistic acts are involved. That is obviously a possible course;
    whether it is a desirable way of changing the law is a different question.

    I would therefore answer the question certified on the basis that where
    a charge is brought in respect of acts done between adults in private under
    section 20 of the Offences against the Person Act 1861 in respect of wounding
    and under section 47 in respect of causing actual bodily harm, it must be
    proved by the prosecution that the person to whom the act was done did not
    consent to it.

    Accordingly I consider that these appeals should be allowed and the
    conviction set aside.

    - 60 -


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