How Far is too Far? - The Extent to which Consent is a Defence to Non-fatal Offences Against the Person Lord Mustill's Dissent in R v Brown [1994] 1 AC 212

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CHAPTER 16

HOW FAR IS TOO FAR? – THE EXTENT TO WHICH CONSENT IS A DEFENCE TO NON-FATAL OFFENCES AGAINST THE PERSON Lord Mustill’s Dissent in R v Brown
[1994] 1 AC 212

Tasmin Malcolm

16.1 Introduction 317
16.2 Facts 318
16.3 History of consent as a defence 319
16.3.1 The Queen v Coney and Others 319
16.3.2 The King v Donovan 320
16.3.3 Attorney-General’s Reference (No 6 of 1980) 321
16.4 Decision of the majority 322
16.4.1 Reasoning of the majority as to consent 324
16.5 Lord Mustill’s dissent 329
16.6 Post-Brown developments 333
16.6.1 R v Wilson 334
16.6.2 R v Emmett 336
16.6.3 Consent in relation to the infliction of sexually transmitted diseases 338
16.7 Current position of the law 339
16.8 Conclusion 339

16.1 INTRODUCTION

Consent is a controversial area of the law due to the public policy considerations that have shaped the way the law currently stands in relation to non-fatal offences. Whilst there is no statute specifying when the defence of consent may apply, there are various situations arising under the common law in which it may be validly accepted as a defence. That being said, there are many considerations to be taken into account in applying the defence, such as the

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mental capacity of the victim, whether the consent was express or implied and the intention of the person inflicting the harm. The matter arising in the case of R v Brown¹ concerned the extent of the injury to which consent will be accepted as a valid defence. It was held by the majority² that consent was not available as a defence where bodily harm was inflicted despite the circumstances arising in the context of private sexual behaviour. The dissenting judgments,³ however, considered the legislation applied to be inappropriate to deal with the matter. It was also discussed in the minority judgment that consent should be available to harm falling short of being serious, but is ultimately to be decided on a case-bycase basis. Whilst the majority view may appear slightly less ambiguous, it is the dissenting opinion that goes further in supporting the public interest and applying the legislation as intended.

16.2 FACTS

The case comprised multiple defendants⁴ who were arrested following a police investigation into a different matter which, as put forward by counsel for Jaggard and Lucas, ‘was not directed at uncovering offences of the type charged’.⁵ In the course of the search, various video tapes were discovered and it was the content therein that amounted to the subject-matter of the charges that ensued. Whilst the broad description of homosexual sadomasochistic practices confirms the nature of the behaviour, a more detailed description aids with the level of harm that this matter concerned, namely:

such activities as the nailing by A of B’s foreskin or scrotum to a board or the insertion of hot wax into C’s urethra followed by the burning of his penis with a candle or the incising of D’s scrotum with a scalpel to the effusion of blood⁶

It is important to note that all of the participants were willing and took some form of pleasure from the behaviour, whether by causing or receiving such pain. Additionally, none of the recipients or ‘victims’ of the acts complained of the wounds that were suffered in the course of the acts. Furthermore, no medical records were adduced into evidence in the course of proceedings and, therefore, we do not even know if the acts resulted in medical treatment. However, it is clear that no serious long-term injury was caused.

¹ R v Brown [1994] 1 AC 212.

² Lord Templeman, Lord Jauncey and Lord Lowry.

³ Lord Mustill and Lord Slynn.

⁴ Brown, Laskey, Jaggard, Lucas, Carter and Cadman.

⁵ Above, n 1, at p 215, per Lady Mallalieu QC and Adrian Fulford.

⁶ Above, n 1, at p 246.

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Each of the six defendants first appeared charged with assault occasioning actual bodily harm contrary to the Offences against the Person Act 1861 (OAPA 1861), s 47. In addition to this, three of those defendants, Laskey, Jaggard and Lucas, were also charged with wounding contrary to s 20. When first arraigned, all of the accused pleaded not guilty. However, the trial judge ruled that in the circumstances of the case the prosecution was not required to negate the consent of the victim. Consequently, the defendants were each re-arraigned and pleaded guilty to the offences charged under the OAPA 1861, ss 20 and 47 respectively. There were further charges related to the keeping of a disorderly house, either as a principal offender or by way of aiding or abetting, to which the four men charged each pleaded guilty.

16.3 HISTORY OF CONSENT AS A DEFENCE

Whilst a defence of consent has been recognised historically, the offences to which it has been applied have varied. Consequently, various exceptions have arisen where, despite a serious level of injury, consent is able to operate as a defence provided that the circumstances can be interpreted consistently with an existing exception or justify creating a new one. There are three key cases that form the background to this area of the law which require some consideration in order to provide the context for the case of Brown. Despite most of the case law relating to prize fighting and sports, there was some development in close proximity to the facts in Brown.

16.3.1 The Queen v Coney and Others

The 19th-century case of The Queen v Coney and Others⁷ was referred to throughout the development of the law on consent and it is therefore necessary to briefly outline the facts. The eight defendants were charged with counts of common assault against two participants in a prize fight. The two men who were engaged in the fight, Burke and Mitchell, were charged with a single count of common assault against one another. Due to the illegal nature of prize fighting, where onlookers were deemed to be watching the fight they too were guilty of assault, the rationale for this being that they were encouraging the violence. However, the case of Coney turned on whether three of the men accused, Coney, Gilliam and Tully, were present for the purpose of aiding and abetting the prize fight. The jury were directed that there was to be a finding of guilty if they concluded that the men ‘were not casually passing by, but stayed at the place’. The reason being that ‘they encouraged it by their presence, although

⁷ The Queen v Coney and Others (1881–82) LR 8 QBD 534.

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they did not say or do anything’.⁸ The question raised in the case was whether the participants’ consent to the fight could be a valid defence in law. It was stated by Cave J that where an assault was deemed a breach of the peace or amounted to an unlawful assault, the consent of the victim is irrelevant.⁹

16.3.2 The King v Donovan

The defendant in The King v Donovan¹⁰ appealed his conviction for indecent assault and common assault on the ground that the jury had been misdirected. The victim, a 17-year-old girl, alleged that the defendant had induced her to accompany him to his garage where he beat her with a cane for his own sexual pleasure. It was submitted by the defendant that the girl had consented to such an act which provided a complete defence to the charges in question. The conviction was quashed on appeal on the basis that the chairman had misdirected the jury regarding the questions to be considered in reaching a verdict. It was held that the jury should have been given two matters to decide; first, whether the beating, which was not denied by the defendant, was ‘likely or intended to do bodily harm’.¹¹ This was fundamental to the case as it was considered that consent is not available as a defence to an act that was unlawful per se. Therefore, if the defendant was likely or intended to do bodily harm, this amounted to an unlawful act, rendering consent immaterial. If the question was answered in the affirmative, then a verdict of guilty was to be returned. If the answer was that he was not likely to, or did not, cause bodily harm, only then should the jury have been directed to consider the second matter, whether the crown negated the consent of the victim. A point of significance in the case was the level of certainty to which the jury should be directed as to the onus of either proving or negating consent, on which it was stated that, ‘there should be no possibility of doubt in the minds of the jury upon the question whether it was for the Crown to negative consent, or for the defence to prove it’.¹² The necessity for the prosecutor to negative consent is an onus that has remained an important element of the defence of consent.

⁸ Ibid, at p 536.

⁹ Above, n 7, at p 539.

¹⁰ The King v Donovan [1934] 2 KB 498.

¹¹ Ibid, at p 509.

¹² Above, n 10, at p 504.

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16.3.3 Attorney-General’s Reference (No 6 of 1980)

The case of Attorney-General’s Reference (No 6 of 1980)¹³ involved a 17 and 18 year old who decided to settle an argument with a fist fight which took place on a public street. Following a bleeding nose and facial bruises, the older of the two was charged with assault. The judge directed the jury to consider, first, the matter of self-defence and, secondly, whether both parties were ‘agreeing to fight and use only reasonable force’.¹⁴ It was left to the jury that the defendant could be acquitted of the charge of assault where it is considered that the victim consented to participation in the fight and the defendant had only exerted reasonable force. The defendant was subsequently acquitted of the charge and the Attorney-General referred the following question to the Court of Appeal:

Where two persons fight (otherwise than in the course of sport) in a public place can it be a defence for one of those persons to a charge of assault arising...