"The decisions in Brown, Wilson, and Emmett show that, in criminal law at least, the principles of precedent and statutory interpretation do little to stop the higher judiciary developing the law as they wish." Discuss.

R. v Brown concerned a group of homosexual men who engaged in sadomasochistic acts. The men were charged with assault occasioning actual bodily harm, contrary to section 47, or section 20 of the Offences Against The Person Act 1861. The trial judge ruled that the defence of consent could not apply here and so the defendants changed their plea to guilty and appealed. On appeal, the judges had to decide whether ‘the consent of the victim was effective to prevent the commission of the offence or effective to constitute a defence to the charge’. Lord Templeman believed the authorities have decided that consent is an effective defence in the case of ‘lawful activities’ and that it is therefore up to the court to decide whether the consent defence can apply to ‘sado-masochistic encounters’.

The context of harm that applies here is compared with other scenarios where humans may inflict harm on themselves, for example, drug taking. Templeman points out that drug taking is illegal and the justification for such lies in that it is a form of abuse on both the body and mind and should it be legalised, would be harmful for society as a whole: ‘regarded as dangerous and injurious to individuals and which if allowed and extended is harmful to society generally’. This analysis of ‘harmful’ could be construed as applying the purposive rule where courts try to ascertain the actual intention of parliament when it comes to passing statutes. In this case Lord Templeman obviously perceives parliament’s intention to be that of protecting society as a whole from individuals’ desires to harm themselves by making such acts illegal. For example, as Templeman himself points out, suicide used to be illegal. Although it has ceased to be euthanasia continues to be perceived as murder or manslaughter.

Lord Mustill sees a limit to the defence of consent, the so-called ‘critical level’. However he states that there are some cases which are too ‘special’ for this ‘simple’ rule to apply. Mustill sees the difficulty with Brown to be that ‘people do not ordinarily consent to the infliction of harm’. He also uses the ‘purposive rule’ here and says that parliament, ‘clearly intended to penalise conduct of a quite different nature’. Public interest is also taken into account, but in this case applies to whether sadomasochism should be in a ‘specifically exempt category’.

The principle of precedent is used more in the case of Wilson. Here, a man was convicted of assaulting his wife contrary to section 47 of the Offences Against the Person Act 1861 when he branded his initials onto his wife’s buttocks. In the trial, the judge ruled that he was bound by the earlier case of Brown, previously discussed. On appeal, Russell L.J. stated that there was no ‘factual comparison to be made between the instant case… and Brown’ and that consent was a defence in this case as the wife had not only consented but had instigated the activity. Russell L.J compared the act with that of piercing nostrils or tongues and that it was seen to be ‘the acquisition of a desirable piece of personal adornment’.

Again, the interests of the public come into play and Russell L.J. states, ‘it is not in the public interest that activities such as the appellant’s in this appeal should amount to criminal behaviour. What is interesting is Russell L.J. takes the fact that the activity took place within the ‘matrimonial home’, as legitimisation for this. It cannot go unnoticed that Brown concerned a group of homosexual men engaged in sadomasochistic behaviour, which (sadly) invites prejudice from our conservative society and Wilson concerned a married couple, the primary institution of our ‘nuclear family’ focused culture.

In terms of precedent, both Brown and Wilson were taken into account in the case of R. v Emmett. In this case, the defendant and his fiancé engaged in consensual sexual activity which involved burning and partial asphyxiation to her. The ‘victim’ suffered subconjuctival haemorrhages in both eyes, some bruising and a burn. The defendant was convicted of assault occasioning actual bodily harm. The judge residing in the trial perceived Brown and Wilson to set a precedent that was such that ‘consent was no defence where the parties foresaw the risk of injuries’.

On appeal, Wright J. stated that the injuries suffered in this case were much more severe than that of Wilson. Wright J. noted that partial asphyxiation was a way of heightening sexual sensation but that it could also cause brain damage or death. I think this is an important point to compare with Brown as in that case, part of the justification for dismissing the appeal was that Lord Templeman was concerned that there was no limit to the amount of harm that could be inflicted upon victims, i.e. that eventually such harm could be used as to cause death. Wright J. decided that in the instant case, the defendant went beyond the limit whereby consent could be used a defence and accordingly the appeal was dismissed.

The rule of precedent applied more in the latter cases of Wilson and R. v Emmett than in Brown. It was decided in Brown that no previous cases could be relied upon, in terms of the facts and so the only ‘empirical’ method the judges could use in deciding that case was statutory interpretation. And although statutory interpretation was used, in terms of attempting to create a category of ‘special’ cases where consent could be used as a defence, I believe that the judges relied too heavily upon what they considered to be ‘harmful to society generally’. I justify this by the fact that the instruments of precedent and statutory interpretation are designed partly to limit the powers of the ‘higher judiciary’ to decide cases purely on their own opinions and views. In the case of Brown, I would argue that such limitation did not occur.

In terms of the decision reached in Wilson, I believe it was a combination of the activity drawing similar parallels with tattooing as well as the fact that it occurred in the ‘matrimonial home’ that led to the appeal being allowed. Again in this case I believe Russell L.J. relied too heavily in the notion of ‘public interest’, introduced in Brown. However it is hard to place blame on the residing judge in this case for an influencing principle decided by a previous judge on a previous similar case. On the other hand, some might say that the fact that ‘public interest’ had been introduced as acceptable legal justification provided a good ‘cover’ for Russell L.J. to decide the case based upon his personal, conservative views. It is ironic that the case for the interests of the public led to one appeal being dismissed on the basis of such, and another accepted. The fact that in both cases the decision reached meant that the ‘norms and values’ of society were upheld should not go unnoticed.

It is in Emmett that I believe some logical legal reasoning to have been reached, for it did not appear to be that the sexual activity went beyond the ‘norms’ of our society that the appeal was dismissed, but that the simple fact that consent could not be taken for granted when the activity causes harm that may result in death. Had the judges in Brown taken a similar view and not relied so heavily upon ‘public interests’, I may be less sceptical of the decision reached there. As it is, they appeared to make their decision based upon the prejudiced view that homosexual activity generally was not to be encouraged.

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