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    Regina v Brown
    Regina v Brown
    Regina v Brown
    Ebook99 pages1 hour

    Regina v Brown

    By Parliament of the United Kingdom

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    R v Brown is a House of Lords judgment that re-affirmed the conviction of five men for their involvement in consensual unusually severe sadomasochistic sexual acts over 10 years. They were convicted of a count of unlawful and malicious wounding and a count of assault occasioning actual bodily harm (contrary to sections 20 and 47 of the Offences against the Person Act 1861).
    LanguageEnglish
    PublisherDigiCat
    Release dateAug 10, 2022
    ISBN8596547158493
    Regina v Brown

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      Regina v Brown - Parliament of the United Kingdom

      Parliament of the United Kingdom

      Regina v Brown

      EAN 8596547158493

      DigiCat, 2022

      Contact: DigiCat@okpublishing.info

      Table of Contents

      Cover

      Titlepage

      Text

      R v Brown

      Table of Contents

      R v Brown and other appeals

      HOUSE OF LORDS

      [1993] 2 All ER 75

      HEADNOTE: 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 [a] of the Offences against the Person Act 1861, and unlawful wounding, contrary to s 20 [b] 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.

      a Section 47, so far as material, is set out at p 78 c, post

      b Section 20, so far as material, is set out at p 78 e f, post

      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.

      JUDGMENT-1: 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.

      By s 20 of the 1861 Act, as amended:

      '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

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