R v Brown

R v Brown
Court	House of Lords
Date decided	11 March 1993
Citation(s)	(1994) 1 AC 212; (1993) 2 WLR 556; (1993) 2 All ER 75; (1993) 97 Cr App R 44; (1993) 157 JP 337; (1993) 157 JPN 233; (1993) 143 NLJ 399
Judge(s) sitting	Lord Templeman, Lord Jauncey, Lord Lowry, Lord Mustill and Lord Slynn
Case history
Prior action(s)	None
Subsequent action(s)	Laskey, Jaggard and Brown v. the United Kingdom

R v Brown (1994) 1 AC 212[1] is a House of Lords judgment in which a group of men were convicted for their involvement in consensual sadomasochistic sexual acts over a 10 year period. They were convicted of "unlawful and malicious wounding" and "assault occasioning actual bodily harm" contrary to sections 20 and 47 of the Offences against the Person Act 1861. The key issue facing the Court was whether consent was a valid defence to assault in these circumstances, to which the Court answered in the negative.

The case is colloquially known as the Spanner case after Operation Spanner, the investigation which led to it.

Facts

A group of individuals — five of them appellants of the case — had engaged in sadomasochistic sexual acts, consenting in each case to the harm they received. While none of these individuals complained against any of the acts in which they were involved, they were uncovered by an unrelated police investigation.^[1] Upon conviction, the individuals argued that they could not be convicted under the Offences against the Person Act 1861, as they had in all instances consented to the acts they engaged in.

Judgment

The certified question of appeal which the House of Lords was asked to consider was:

"Where A wounds or assaults B occasioning him actual bodily harm in the course of a sado-masochistic encounter, does the prosecution have to prove lack of consent on the part of B before they can establish A's guilt under section 20 or section 47 of the Offences against the Person Act 1861?"^[2]

The Lords — by a bare majority, Lords Mustill and Slynn dissenting — answered this in the negative, holding that consent could not be a defence to offences under sections 20 and 47 of the Offences against the Person Act 1861

Criticism

There has been much academic criticism of the judgment's overtones. Baker (Dennis J. Baker, Glanville Williams Textbook of Criminal Law, (London: Sweet & Maxwell, 2012) at pp. writes: "The sadomasochists might argue that the telos of the participants’ activities in sadomasochism is merely to achieve sexual gratification. But every time they want to achieve the ulterior aim of sexual gratification, they need to harm each other. The harm has to be repeated each time the recipient wants to receive sadomasochistic pleasure. The two are inseparable—the sexual gratification can only be achieved while the harm is being inflicted. Per contra, adornment procedures only involve a one-off wounding, burning, etc., which results in a long-term benefit. There is nothing unreasonable about preventing people from repeatedly inflicting grievous bodily harm upon others, merely because they want to repeat the ephemeral sexual thrill it gives them. None the less, it seems that this argument should not apply to actual bodily harm. Those who regularly inflict actual bodily harm on themselves by smoking and drinking excessively are not criminalized, nor are those who supply them with the instruments of harm. Similarly, professional athletes regularly subject their bodies to actual bodily harm, but recover." Marianne Giles calls the judgment: "Paternalism of an unelected, unrepresentative group who use but fail to acknowledge that power".^[3]

See also

• Operation Spanner

References

1. ^ [1994] 1 AC 212, at 238
2. ^ [1994] 1 AC 212, at 215
3. ^ http://books.google.co.uk/books?id=KDA-dkKNfWMC&pg=PA121&lpg=PA121&dq=R+v+bROWN+homophobia&source=bl&ots=4_6zvWmbw7&sig=8G4GwfvBwEqJQgE2--dsZBkx0VU&hl=en&ei=p6FXSpiuDqDQjAeJhvXbBQ&sa=X&oi=book_result&ct=result&resnum=8

External links

• Judgment