Offences Against the Person. Case note regarding R. v Brown [1994] 1 A.C. 212.

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Case note regarding R. v Brown [1994] 1 A.C. 212.

Fatima Gurbanova

1103134

IA120

Audrey Woraker

The sado-masochist group which “willingly and enthusiastically” applied violence upon each other in order to receive a sexual pleasure was held guilty under sections “20 and 47 the Offences against Person Act 1861”. Section 20 of the Offences against person act 1861 states:  “Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either with or without weapon or instrument, shall be guilty of a misdemeanor, and being convicted thereof shall be liable to be kept in penal servitude”, section 47 states: “Whosoever shall be convicted upon an indictment of any assault occasioning actual bodily harm will be liable to be kept in penal servitude”. Appellants being unsatisfied with the sentence of the court applied for appeal arguing that the act under which they were sentenced is inappropriate in the given conditions.

The appellants were experiencing their sado-masochistic exercises on private property, without involving ‘children, young persons (except for K. who was limited in contact) or animals’. Their activities were not intended to be shown to public, and the tapes with their activities were intended only to be shown among the members of the group. All the injuries that the members had were done with their consent and that is why they felt that their actions were not unlawful. The Lords in their decisions had to balance the right of private life which is guaranteed by the article 8 of the European Convention for the Protection of Human Rights and the fact that people were injured. However, the bodily harm that members had can hardly be called serious. The majority of the judges in their decisions held that the consent becomes “immaterial” when the act involves a degree of violence such that the infliction of bodily harm is a probable consequence.  

Five Lords of Appeal considered this appeal:  Lord Templeman, Lord Jauncey of Tullichettle, Lord Lowry, Lord Mustill and Lord Slynn of Hadley.  Two of the Lords allowed the appeal (Lord Mustill and Lord Slynn of Hadley), three left dismissed. Following the majority the appeal was dismissed.

The case note thereafter will look at the decisions of the Lords of Appeal, analyzing them and after this the conclusion will be given.

Two main questions of the case were whereby the activities committed by the sado-masochist group were the problem of the law or it was their personal matter and does the consent shown by the appellants was a shield to their exercises? The Lord Templeman who constituted that the appeal must be dismissed based his opinion on the fact that the violence that was used by the group members could not be grouped as the “lawful activity” because it included violence. All the Lords who dismissed the appeal shared this idea, showing as the examples of lawful activities such actions like “ritual circumcision, tattooing, ear-piercing and violent sports including sports”. From Lords who dismissed the appeal point the view the consent could not be a safeguard for the acts that the sado-masochists were doing because of the fact that there was no “good intent”, saying that there must be a line drawn between what can be consented and what cannot be. The Lord Lowry who dismissed the appeal linked to the case Reg. v. Coney, 8 Q.B.D. 534, where the judge said: “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”. Some of the appellants were sentenced upon the section 47 of the Offences against the Person Act 1861; others were sentenced upon the section 20. ‘The Counsel of dome of the appellants argued that defence of consent should be extended to the offence of the occasioning actual bodily harm under section 47 of the Act 1861 but should not be available to charges of serious wounding and the infliction of serious bodily harm under section 20’. However, the Lord Templeman did not agree with this proposition, basing his decision on the fact that the appellants were not able to foresee the ‘degree of bodily harm which will result from their encounter’. Another interesting aspect that was touched by Lord Templeman is the proposition of the Counsel that “the consent should provide a defence to charges under section 20 and 47 because every person has a right to deal with his body as he pleases”. Templeman strongly disagrees with that arguing that this kind of “slogan” can lead to consequences that will harm the society, and shows as the example the suicide which is “no longer an offence but a person who assists another to commit suicide is guilty of murder or manslaughter”. All Lords that dismissed the Appeal talked about the “public interest” which in their opinion suffers in the conditions of the present case.  Lord Jauncey of Tullichettle said: “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”. But did the activities of the sado-masochistic group, which was experiencing its activities in private, with consent of all men, affect anyhow the public? Lord Lowry argues that there is no distinction between the situation where the unlawful happened in private or in public. The appellants were referring to the article 8 of the European Convention on Human Rights which states that “everyone has the right to respect for his private ad family life, his home and his correspondence” in their appeals, however Lord Lowry disagreed with this refer saying that the article 8 of the Convention is not a part of the English Law and links to the article 8 (2) of the Convention that states that ‘no public authority can be said to have interfered with a right by enforcing the provisions of the Act 1861’. In present case “at least actual bodily harm” was committed; therefore private life is no longer a right in given circumstances.

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Nonetheless, Lord Mustill in his decision defined the current case as nothing but the “private sexual relations” which is not a problem of the criminal law. The interesting point that was showed by Lord Mustill is that there are no suitable cases and no appropriate statutes to this case. “The indictment was made only because no other statute was found which could conceivably be brought to bear upon them”. Lord Slynn Hadley in his conclusion stated: “adults can consent to acts done in private which do not result serious bodily harm” and continues saying that therefore the present case cannot be classified ...

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