R v Brown [1993] 2 All ER 75

HOUSE OF LORDS
LORD TEMPLEMAN, LORD JAUNCEY OF TULLICHETTLE, LORD LOWRY, LORD MUSTILL AND LORD SLYNN OF HADLEY
1, 2, 3, 7 DECEMBER 1992, 11 MARCH 1993

The appellants belonged to a group of sado-masochistic homosexuals who over a 10-year period from 1978 willingly participated in the commission of acts of violence against each other, including genital torture, for the sexual pleasure which it engendered in the giving and receiving of pain. The passive partner or victim in each case consented to the acts being committed and suffered no permanent injury. The activities took place in private at a number of different locations, including rooms equipped as torture chambers at the homes of three of the appellants. Video cameras were used to record the activities and the resulting tapes were then copied and distributed amongst members of the group. The tapes were not sold or used other than for the delectation of members of the group. The appellants were tried on charges of assault occasioning actual bodily harm, contrary to s 47 of the Offences against the Person Act 1861, and unlawful wounding, contrary to s 20 of that Act. The Crown’s case was based very largely on the contents of the video tapes. Following a ruling by the trial judge that the consent of the victim afforded no defence to the charges, the appellants pleaded guilty and were sentenced to terms of imprisonment. The appellants appealed against their convictions, contending that a person could not guilty be of assault occasioning actual bodily harm or unlawful wounding in respect of acts carried out in private with the consent of the victim. The Court of Appeal dismissed their appeals. The appellants appealed to the House of Lords.

Held (Lord Mustill and Lord Slynn dissenting) – Consensual sado-masochistic homosexual encounters which occasioned actual bodily harm to the victim were assaults occasioning actual bodily harm, contrary to s 47 of the 1861 Act, and unlawful wounding, contrary to s 20 of that Act, notwithstanding the victim’s consent to the acts inflicted on him, because public policy required that society be protected by criminal sanctions against a cult of violence which contained the danger of the proselytisation and corruption of young men and the potential for the infliction of serious injury. Accordingly, a person could be convicted of unlawful wounding and assault occasioning actual bodily harm, contrary to ss 20 and 47 of the 1861 Act, for committing sado-masochistic acts which inflicted injuries which were neither transient nor trifling, notwithstanding that the acts were committed in private, the person on whom the injuries were inflicted consented to the acts and no permanent injury was sustained by the victim. It followed that the appellants had been properly convicted and that their appeals would be dismissed (see p 83 h j, p 84 g, p 90 h j, p 91 b c g to j, p 92 a to c, p 93 b c, p 94 d e, p 100 b to h and p 101 c, post).

Dictum of Cave J in R v Coney (1882) 8 QBD 534 at 539, R v Donovan [1934] All ER Rep 207 and A-G’s Reference (No 6 of 1980) [1981] 2 All ER 1057 applied.

Decision of the Court of Appeal [1992] 2 All ER 552 affirmed.

Conjoined appeals
Anthony Joseph Brown, Colin Laskey, Roland Leonard Jaggard, Saxon Lucas and Christopher Robert Carter appealed with the leave of the Court of Appeal, Criminal Division against the decision of that court (Lord Lane CJ, Rose and Potts JJ) ([1992] 2 All ER 552, [1992] QB 491, 94 Cr App R 302) on 7 November 1990 dismissing their appeals against their convictions and sentences on 19 December 1990 in the Central Criminal Court before Judge Rant QC on counts of unlawful wounding, assault occasioning actual bodily harm and aiding and abetting the same contrary to ss 20 and 47 of the Offences against the Person Act 1861, the appellants having pleaded guilty to the charges following rearraignment as a result of a ruling by the judge on 2 November 1990. The Court of Appeal certified, under s 33(2) of the Criminal Appeal Act 1968, that a point of law of general public importance (set out at letter h, below) was involved in the decision to dismiss the appeals. The appeals were conjoined by order of the House of Lords dated 9 November 1992. The facts are set out in the opinion of Lord Templeman.

Lawrence Kershen QC, Eleanor Sharpston and Pauline Hendy (instructed by Geffens, Walsall) for the appellant Brown. Baroness Mallalieu QC, Adrian Fulford and Eleanor Sharpston (instructed by J P Malnick & Co) for the appellants Lucas and Jaggard. Anna Worrall QC, Gibson Grenfell and Eleanor Sharpston (instructed by J P Malnick & Co) for the appellant Laskey. Ronald Thwaites QC, Jonathan Lurie and Eleanor Sharpston (instructed by Shakespeares, Birmingham) for the appellant Carter. Nicholas Purnell QC and David Spens (instructed by the Crown Prosecution Service) for the Crown.

Their Lordships took time for consideration.

11 March 1993. The following opinions were delivered.

LORD TEMPLEMAN. My Lords, the appellants were convicted of assaults occasioning actual bodily harm contrary to s 47 of the Offences against the Person Act 1861. Three of the appellants were also convicted of wounding contrary to s 20 of the 1861 Act. 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 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?’

The definition of assault set forth in the 14th Report of the Criminal Law Revision Committee on Offences against the Person (Cmnd 7844 (1980)) para 158 and adopted by the Law Commission in their Consultation Paper No 122, Legislating the Criminal Code: Offences against the Person and General Principles (1992) para 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 s 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 s 47 of the 1861 Act, 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 R v Donovan [1934] 2 KB 498 at 509, [1934] All ER Rep 207 at 212 Swift J, delivering the judgment of the Court of Criminal Appeal, said:

‘… “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.

‘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 cuticle: see J J C (a minor) v Eisenhower [1983] 3 All ER 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 DPP v Smith [1960] 3 All ER 161, [1961] AC 290.

In s 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 R v Mowatt [1967] 3 All ER 47, [1968] 1 QB 421.

Three of the appellants pleaded guilty to charges under s 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 shall 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 s 47 or s 20 of the 1861 Act 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 nineteenth century. 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 1 Hawkins’ Pleas of the Crown (8th edn, 1824) ch 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 R v Coney (1882) 8 QBD 534 the court held that a prize-fight in public was unlawful. Cave J said (at 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 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 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 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 CJ said (at 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 R v Donovan [1934] 2 KB 498, [1934] All ER Rep 207 the appellant in private beat a girl of 17 for purposes of sexual gratification, it was said with her consent. Swift J said ([1934] 2 KB 498 at 507, [1934] All ER Rep 207 at 210):

‘… 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.’

In A-G’s Reference(No 6 of 1980) [1981] 2 All ER 1057 at 1059, [1981] QB 715 at 719 where two men quarrelled and fought with bare fists Lord Lane CJ, delivering the judgment of the Court of Appeal, said:

‘… 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 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 on 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 Report of the Committee on Homosexual Offences and Prostitution (the Wolfenden Report) (Cmnd 247 (1957)) ch 2 para 13, declared that the function of the criminal law in relation to homosexual behaviour—

‘is to preserve public order and decency, to protect 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.’

In response to the Wolfenden Report and consistently with its recommendations, Parliament enacted s 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 twenty-one 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 twenty-one 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 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 s 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 1967 Act 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 s 1(1) of the 1967 Act remain unlawful. Subject to the respect for private life embodied in the 1967 Act, 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 1861 Act. 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 sadomasochistic encounters. The Wolfenden Committee did not make any recommendations about sado-masochism and Parliament did not deal with violence in 1967. The 1967 Act 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 s 47 of the 1861 Act but should not be available to charges of serious wounding and the infliction of serious bodily harm under s 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 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 ss 20 and 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 sadomasochism before they attained the age of 21. In his judgment in the Court of Appeal, Lord Lane CJ 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 video tape “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.’ (See 94 Cr App R 302 at 310.)

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 sterilised 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 sadomasochistic 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 ss 47 and 20 of the 1861 Act.

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 1861 Act. But there was no reason for the police to refrain from pursuing the charges under the 1861 Act merely because other charges could not be pursued. Indecency charges are connected with sex. Charges under the 1861 Act 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 art 7 of the European Convention on Human Rights (see the Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4 November 1950; TS 71 (1953); Cmd 8969)). That article, so far as material, provides:

‘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 art 7.

The appellants’ counsel relied on art 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 with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests 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 art 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.

LORD JAUNCEY OF TULLICHETTLE. My Lords, all five appellants and a number of other persons were charged with offences against s 47 of the Offences against the Person Act 1861, and the appellants Laskey, Jaggard and Lucas were also charged with contraventions of s 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 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 or section 47 of the 1861, Offences Against the Person Act.’

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 Queen’s 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 s 20 or s 47 of the 1861 Act. 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. 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. Baroness Mallalieu QC, for Jaggard 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 s 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 QC 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 1861 Act 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 QC for Brown also argued that the 1861 Act 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 s 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 QC for Carter traced the history of the offence of maiming, which deprived the King of possible service, invited your Lordships to hold that R v Donovan [1934] 2 KB 498, [1934] All ER Rep 207 and A-G’s Reference(No 6 of 1980) [1981] 2 All ER 1057, [1981] QB 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 R v Coney (1882) 8 QBD 534, R v Donovan [1934] 2 KB 498, [1934] All ER Rep 207 and A-G’s Reference(No 6 of 1980) [1981] 2 All ER 1057, [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 (1 Hawk PC (8th edn, 1824) ch 15). Maiming is defined 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 …’ (see p 107, s 1). Examples are then given. Assault is defined as ‘… an attempt to offer, with force and violence, to do a corporal hurt to another’ (see p 110, s 1) and battery as ‘… any injury whatsoever be it never so small, being actually done to the person of a man in an angry, revengeful, rude, or insolent manner …’ (see p 110, s 2). 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 R v Coney (1882) 8 QBD 534 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 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 ((1878) 39 LT 293).’

Stephen J said (at 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 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.’

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 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 … 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 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 s 47 of the 1861 Act or to offences under s 20 thereof. Lord Coleridge CJ similarly concluded that the combatants in a prize-fight could not consent to commit a breach of the peace (at 567).

Although there was unanimity among the judges in R v 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 CJ 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 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 of the Criminal Law published before and after R v Coney he stated (3rd edn (1883) pp 141–142, art 206): ‘Every one has a right to consent to the infliction upon himself of bodily harm not amounting to a maim.’ I do not find great assistance in R v 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 R v Coney (1882) 8 QBD 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 R v Donovan [1934] 2 KB 498, [1934] All ER Rep 207 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 R v Coney 8 QBD 534 at 539, to which I have already referred, said ([1934] 2 KB 498 at 507, [1934] All ER Rep 207 at 210):

‘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 than 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 of the Criminal Law 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 or 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 could not plead the gratification of his perverted desires as an excuse, Swift J said ([1934] 2 KB 498 at 509, [1934] All ER Rep 207 at 211–212):

‘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 A-G’s Reference(No 6 of 1980) [1981] 2 All ER 1057, [1981] QB 715 the respondent and the victim had a fist-fight 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 ([1981] 2 All ER 1057 at 1058, [1981] QB 715 at 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 CJ said ([1981] 2 All ER 1057 at 1059, [1981] QB 715 at 718–719):

‘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?’

He later said ([1981] 2 All ER 1057 at 1059, [1981] QB 715 at 719):

‘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. Nothing which we have said is intended to cast doubt on 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 R v Boyea (1992) 156 JP 505 at 512–513, in which the appellant was convicted of indecent assault on a woman, Glidewell LJ, giving the judgment of the Court of Appeal, Criminal Division, said:

‘The central proposition in Donovan ([1934] 2 KB 498, [1934] All ER Rep 207) is in our view consistent with the decision of the court in the Attorney-General’s Reference [A-G’s Reference (No 6 of 1980) [1981] 2 All ER 1057, [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 LJ 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 part 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 [1986] 2 All ER 440 at 447, [1987] QB 237 at 253, where it was said, that hostility could not be equated with ill-will or malevolence. The judgment went on to state ([1986] 2 All ER 440 at 448, [1987] QB 237 at 253):

‘Take the example of the police officer in Collins v Wilcock [1984] 3 All ER 374, [1984] 1 WLR 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 appellants’ 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 should be below the line but there was disagreement as to whether all offences against s 20 of the 1861 Act 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 R v Donovan, A-G’s Reference(No 6 of 1980) and R v Boyea the infliction of actual bodily harm was considered to be sufficient to negative any consent. Indeed in R v Donovan and R v Boyea such injuries as were sustained by the two women could not have been described as in any way serious. Cave J in R v Coney appeared to take the same view. On the other hand, Stephen J in R v Coney appeared to consider that it required serious danger to life and limb to negative consent, a 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 Pty Ltd (No 1) [1976] VR 331.

I prefer the reasoning of Cave J in R v 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 s 47 of the 1861 Act, with the result that consent of the victim is no answer to anyone charged with the latter offence or with a contravention of s 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 ss 20 and 47 of the 1861 Act 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 s 47 but not to one under s 20, considerable practical problems would arise. It was held in R v Savage, R v Parmenter [1991] 4 All ER 698 at 711, [1992] 1 AC 699 at 740 that a verdict of guilty of assault occasioning actual bodily harm is a permissible alternative verdict on a count alleging unlawful wounding contrary to s 20 (per Lord Ackner). A judge charging a jury in a s 20 case would therefore not only have to direct them as to the alternative verdict available under s 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 s 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 s 1(1) of the Sexual Offences Act 1967. Notwithstanding the views which I have come to, 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 Lord Lane CJ (94 Cr App R 302 at 310):

‘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 HIV 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 Baroness 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 R v Coney (1882) 8 QBD 534 at 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 suggests that secrecy may not be as strict as the 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 Report of the Committee on Homosexual Offences and Prostitution (the Wolfenden Report) (Cmnd 247 (1957)), 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 R v Coney (1882) 8 QBD 534 at 549 Stephen J referred to consent as being ‘no defence’, whereas in A-G’s Reference (No 6 of 1980) [1981] 2 All ER 1057 at 1058, [1981] QB 715 at 718 Lord Lane CJ referred to the onus being on the prosecution to negative consent. In Collins v Wilcock [1984] 3 All ER 374 at 378, [1984] 1 WLR 1172 at 1177 Robert Goff LJ 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 1956 and not under the 1861 Act. The appellants could within the time limit have been charged under the 1956 Act with committing acts of gross indecency. However that Act contained no provision limiting the effect of ss 20 and 47 of the 1861 Act 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 1967 Act, had in contemplation the type of activities engaged in by the appellants. These activities necessarily comprehended acts of gross indecency as referred to in s 13 of the 1956 Act and s 1(7) of the 1967 Act. However, the Wolfenden Report para 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 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 1861 Act.

I cannot usefully add anything to what my noble and learned friend Lord Templeman has said in relation to the appellants’ argument on arts 7 and 8 of the Convention for the Protection of Human Rights and Fundamental Freedom (Rome, 4 November 1950; TS 71 (1953); Cmd 8969).

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 s 47 of the Offences against the Person Act 1861 and of wounding contrary to s 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 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 para 7.4 of the Law Commission’s Consultation Paper No 122, Legislating the Criminal Code: Offences against the Person and General Principles (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 [in a letter to Sir John Holker, 20 January 1877 cited by Sir Rupert Cross in Glazebrook (ed) Reshaping the Criminal Law (1978) p 10]: “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” [see Professor J C Smith in his commentary on R v Parmenter [1991] 2 All ER 225, [1992] 1 AC 699, CA ([1991] Crim LR 43) cited in R v Savage, R v Parmenter [1991] 4 All ER 698 at 721, [1992] 1 AC 699 at 752, HL].’

The 1861 Act has not the form or substance of a true consolidation but, with acknowledgments to the work of C S Greaves QC (Criminal Law Consolidation and Amendment Acts (2nd edn, 1862) pp xxvi, 52–53, 76), Law Commission Consultation Paper No 122 traces s 18 of the 1861 Act to s 4 of the Act 7 Will 4 & 1 Vict c 85 (offences against the person (1837)), s 20 to s 29 of the Act 10 Geo 4, c 34 (offences against the person (Ireland) (1829)) and s 47 to s 29 of the Criminal Procedure 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 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, either 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 s 18 were felonies, but offences against ss 20 and 47 were misdemeanours. Therefore s 20 was not associated with s 18 and separated from s 47 by categorisation. (2) Although s 47 appears to describe a less serious offence than s 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 ss 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 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 s 20’, which I would regard as a most unlikely solution. (4) 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 s 20. (5) The distinction between common assault and all other attacks on the person is that common assault does not necessarily involve significant bodily injury. It is much easier to draw the line between 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. (6) 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 cl 8(1) of the Bill attached to Law Commission Consultation Paper No 122 (see para 9.10):

‘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 R v Coney (1882) 8 QBD 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 549):

‘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 Criminal Pleading Evidence and Practice adopted that statement, for which there is no other judicial authority, until it was disapproved in R v Donovan [1934] 2 KB 498, [1934] All ER Rep 207 and the editor of later editions of Stephen’s Digest of the Criminal Law has abandoned the distinguished author’s proposition.

In R v 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 CJ is reported as saying at the conclusion of argument (25 Cr App R 1 at 4):

‘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 Swift J delivered the judgment of the court, disposing first of the consent issue and another point (see [1934] 2 KB 498, [1934] All ER Rep 207). He then dealt with the question which has some relevance to the present appeals and which he introduced as follows ([1934] 2 KB 498 at 506, [1934] All ER Rep 207 at 210):

‘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: ‘We have given careful consideration to the question of law which this submission raises.’ Then, having noted observations of Cave J in R v Coney (1882) 8 QBD 334 at 539, the judge said ([1934] 2 KB 498 at 507, [1934] All ER Rep 207 at 210–211):

‘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 … 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 recognised. In his Digest of the Criminal Law (6th edn, 1904), Art. 227, Sir James FitzJames Stephen enunciates the proposition that “every one 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.’ (My emphasis.)

Having referred to East’s Pleas of the Crown and Foster’s Crown Law (3rd edn, 1809) p 259, Swift J stated ([1934] 2 KB 498 at 508, [1934] All ER Rep 207 at 211):

‘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 ([1934] 2 KB 498 at 509, [1934] All ER Rep 207 at 211–212):

‘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 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 ((1847) 2 Cox CC 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 part 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 ((1603) 2 State Tr 1 at 26): ‘Mr Attorney, you should speak secundum allegata et probata.’ The rule that the Crown cannot otherwise recover is a universal proposition, not confined to trials of the high and mighty for treason. The prosecution must both allege and prove. 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 the judgment ran, ‘where the act charged is in itself unlawful’ (see [1934] 2 KB 498 at 507, 1934] All ER Rep 207 at 210).

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.

/A/-/G’s Reference /(/No 6 of 1980/) [1981] 2 All ER 1057, [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 CJ introduced the subject by saying ([1981] 2 All ER 1057 at 1058, [1981] QB 715 at 718):

‘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 ([1981] 2 All ER 1057 at 1059, [1981] QB 715 at 718–719):

‘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 Textbook of Criminal Law (2nd edn, 1983) 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.

Lord Lane CJ then spoke of the need for a ‘partly new approach’ (compared with that found in R v Coney and R v Donovan). He continued ([1981] 2 All ER 1057 at 1059, [1981] QB 715 at 719):

‘The answer to this 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.’

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 R v McCoy 1953 (2) SA 4 [SR] (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 in R v Boyea (1992) 156 JP 505. I think that consideration of the 1861 Act and the indications to be derived from the cases together provide strong support for the Crown’s 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, delivered by Lord Lane CJ (see [1992] 2 All ER 552, [1992] QB 491). 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 (see [1992] 2 All ER 552 at 557–560, [1992] QB 491 at 497–500). Having cited R v Donovan [1934] 2 KB 498, [1934] All ER Rep 207 Lord Lane CJ drew attention to Kenny’s Outline of Criminal Law (19th edn, 1966) p 209 and Archbold’s Pleading Evidence and Practice in Criminal Cases (43rd edn, 1988) para 20–124 (see [1992] 2 All ER 552 at 558–599, [1992] QB 491 at 499) and went on to consider A-G’s Reference(No 6 of 1980) [1981] 2 All ER 1057, [1981] QB 715. Commenting on that case ([1981] 2 All ER 1057 at 1059, [1981] QB 715 at 719), he said ([1992] 2 All ER 552 at 559, [1992] QB 491 at 500):

‘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 Lord Lane CJ shows that what he said in A-G’s Reference (No 6 of 1980) was intended by him to be of general application:

‘It was submitted to us that the facts in that case were so 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 the reference 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 ss 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 A-G’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 ss 20 and 47 can only encourage the practice of homosexual sado-masochism, with 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 to the refusal to relax existing prohibitions in the 1861 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 s 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 (see the Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4 November 1950; TS 71 (1953); Cmd 8969)). On the view which I have taken, art 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 attempt to rely on this article is another example of the appellants’ reversal of the onus of proof of legality, which disregards the effect of ss 20 and 47. I would only say, in the first place, that art 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 art 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 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 pleaded 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 a 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 [GWC] 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 1861 Act.

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 18 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 ss 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 of the 1861 Act was adventitious. This impression is reinforced when one considers the title of the statute under which the appellants are charged, ‘Offences against the Person’. Conduct infringing ss 18, 20 and 47 of the 1861 Act comes before the Crown Court 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 is in my opinion legitimate to assume that the choice of the 1861 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 R v Clarence (1888) 22 QBD 23 at 33, [1886–90] All ER Rep 133 at 137, 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 ss 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 (22 QBD 23 at 30, [1886–90] All ER Rep 133 at 137):

‘… such considerations lead one to pause on the threshold, and inquire 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 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 br