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R v. Brown [1994]

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Headnote

I. Background

This case was seen by the House of Lords. It concerned sections 20 and 47 of the Offences Against the Person Act 1861 (the 1861 Act), and the line at which one could no longer consent to harm inflicted on one’s own person.

The appellants engaged in sadomasochistic homosexual activity during which they would pierce, lacerate and generally inflict violence upon one another in order to achieve sexual pleasure. Crucially, every one of those taking part gave their consent to the violence being inflicted upon them. They were charged with contravening sections 20 and 47 of the 1861 Act

II. Issue

The issue of the case was whether the accused had a defence as their supposed victims had consented to the harm they inflicted. The crucial question was at what point can a person no longer consent to harm being inflicted upon them?

III. Rule

The general rule was that one could not consent to actual bodily harm, wounding or grievous bodily harm – or anything further than this. Section 47 of the 1861 Act sets out the offence of intentionally or recklessly committing assault which results in actual bodily harm. Section 20 of the 1861 Act sets out the offence of intentionally causing grievous bodily harm. The appellants had been charged with at least one of these offences, both of which met the boundary past which consent was ineffective.

However, there were exceptions to this boundary. Professional sports, horseplay, surgery, tattooing, and ear piercing. The defendants claimed that their conduct should be allowed as a fresh exception, as they meant no cruelty nor maliciousness through their actions. 

The House of Lords rejected this argument, albeit by a 3-2 majority. In examining the exceptions, Lords Templeman, Jauncey, and Lowry concluded that the unifying factor of the exceptions was that, although the person causing the harm intended their actions, they did not intend to cause pain or suffering through their actions. As, in this instance, the appellants were looking to cause pain in order to achieve sexual pleasure, the appellants’ conduct was incongruous with the exceptions, and thus could not be admitted. 

IV. Dissenting judgements

Dissenting, Lord Mustill stated that the issue came down to personal freedom and morality, these being concepts that could only be curtailed by Parliament themselves, and not the courts. Whilst they were morally objectionable, the courts were unable to label them criminal without Parliament first declaring them so. He also criticised the exceptions and the wider offences against the person regime, which was, in his view, incoherent and unorganised.

Lord Slynn, dissenting, also saw the case as a matter of public policy, the issues being highly moral and social in nature. He, therefore, thought it more appropriate to be decided by the legislature than the courts.

It must be noted that, following the introduction of the Domestic Abuse Act 2021, consent is no longer a defence to causing serious harm for the purpose of sexual gratification under section 71(2)

Appellate History

  • House of Lords [1993] – Conviction Upheld
  • Court of Appeal [1992] – Conviction Upheld 

Topics

Consent, Offences against the person

Submission Details

Reviewed by Ross Birbeck

Submitted by Navika Jangra

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See

  • R v. Donovan [1934] 2 K.B. 498
  • R v. Coney 8 Q.B.D. 534, 549
  • Attorney General’s Reference (No. 6 of 1980) [1981] QB 715
  • Section 71(2) Domestic Abuse Act 2021
Updated on July 13, 2023

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