In R v Brown [1994] AC 212 the appellants belonged to a group of sado-masoch*stic hom*osexuals 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.
There was however a more public aspect to these acts. 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 entertainment of members of the group. The appellants were charged with assault occasioning actual bodily harm, contrary to section 47 of the Offences Against the Person Act 1861 and unlawful wounding, contrary to section 20 of that Act. The essential question that arose in this case was whether consent could be a defence to an aggravated assault under section 20 and section 47 and was it necessary for the prosecution to prove absence of consent therefore to prove the offences. This in turn gave rise to the question whether this was such an act that was within the private sphere and therefore not of direct concern for the courts.
In giving this decision the Court had two opposing views to balance. One of these views has been advocated by Lord Devlin and the other by Professor H.L.A. Hart. A synopsis of their views is as follows. Lord Devlin's view is that morality is that which the ordinary man on the Clapham omnibus' thinks, and those moral views that man has for which he has very strong feelings of resentment are, just for that reason, enforceable by criminal sanction. Hart does not think that the ordinary man's responses are criteria of moral relevance, nor does he think that doing wrong is strong ground for criminal sanction.
The majority in R v Brown ruled that consent was not a defence for the defendants. Their judgments reflected to an extent that neither did they regard the conduct as wholly private nor neither did they feel compelled not to apply public morality to such acts. For non-fatal offences against the person the consent of the victim may be a defence but this has always been dependent on the type and severity of the harm. It is the courts that ultimately have to decide what is acceptable. JAG Griffiths in Politics of the Judiciary has argued judges are conservative and it is argued that this may lead to arbitrary prejudices when allowing consent as a defence.
The Law Lords were split on this issue in R v Brown [1994] AC 212. Lords Jauncey and Templeman argued that consent was a defence, while Lord Mustill argued that refusal to consent was a part of the crime. Lord Lowry mentioned it as a defence, but then quoted the Law Commission's Draft Code (as it was at the time), which treats the lack of consent as a component of the common assault offence.
Consent is only available as a defence against assault and battery in most cases. This was demonstrated in the case of A.G.'s Reference (No 6 of 1980) [1981] QB 715, in which two boys tried to resolve a dispute by fighting, with one of them suffering from a bleeding nose and bruises. The other was found guilty of assault occasioning ABH under s.47 of the Offences against the Person Act 1861. Lord Lane CJ said (at page 719) “... 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.” In R v Brown, a case involving sadomasoch*stic hom*osexuals who inflicted injury on each other for sexual amusem*nt, the House of Lords upheld this rule. There was no need for medical attention. The participants were charged with assault resulting in ABH under s47 and assault resulting in GBH under s20. Consent was not a viable defence. Consent should not be seen as a defence of anything more serious than assault, according to the court, because it fit with one of the agreed exceptions which were seen as “goodreasons.”
However in 2006 the Court of Appeal in R v Meachen [2006] EWCA Crim 2414 decided to extend consent to include section 47 ABH. Consent is available as a defence if the defendant intended merely to commit a battery with the victim's consent but induced real physical harm. Consent is not used as a defence if the perpetrator intended to inflict real physical harm, or if the victim consented, unless the action falls under one of the courts recognised exceptions. The legality of being irresponsible enough to cause real physical harm with the victim's consent remains vague, and scholarly controversy continues.
When can consent be used as a valid defence? Since there is a general interest in inspiring people to participate in sports, any injuries sustained when participating under the rules of the game will not be considered an offence. The Court of Appeal stated in R v Barnes [2005] WLR 910 that criminal action of organised sport should be reserved for cases when the activity was too grave to be classified as criminal. In In R v Jones (1986) 83 Cr App R 375, some boys at a youth club threw two other boys into the air, causing one to have his spleen ruptured and the other to have his arm fractured. They should be allowed to lift the question of consent, according to the Court of Appeal, because boys have already engaged in rough and undisciplined play between themselves. In R v Brown, according to Lord Templeman sexual gratification was not found to be a suitable exception. Only policies and public interest considerations will determine if the protection of consent can be applied to the results of sadomasoch*stic experiences.
However in R v Wilson [1997] QB 47 (CA), on his wife's appeal, the defendant used a hot knife to brand his initials onto her buttocks. He was successful in his argument for consent to a charge under s47. The Court of Appeal decided that there was no logical distinction between this form of marking and legal tattooing. This case stands in stark contrast to the reasoning in R v Brown, and raises the question of whether the consent defence should only be successfully asserted in activities that their Lordship deem permissible. The court may then be said to grant permission, but only on the basis of unreasonable biases or arbitrary prejudices.
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