R v Brown Lucas Jaggard Laskey Carter (Conjoined Appeals)

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Templeman,Lord Jauncey of Tullichettle,Lord Lowry,Lord Mustill,Lord Slynn of Hadley
Judgment Date11 March 1993
Judgment citation (vLex)[1993] UKHL J0311-3
Date11 March 1993

[1993] UKHL J0311-3



Lord Templeman

Lord Jauncey of Tullichettle

Lord Lowry

Lord Mustill

Lord Slynn of Hadley

(Conjoined Appeals)
Lord Templeman

My Lords,


The appellants were convicted of assaults occasioning actual bodily harm contrary to section 47 of the Offences Against the Person Act 1861. Three of the appellants were also convicted of wounding contrary to section 20 of the Act of 1861 ( 24225 Vict. c. 100). 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 sado-masochistic 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 (1980) (Cmnd 7844) para. 158 and adopted by the Law Commission in their Consultation Paper No. 122 (1992) paragraph 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 section 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 section 47 of the Act of 1861, 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 Rex v. Donovan [1934] 2 K.B. 498 Swift J. delivering the judgment of the Court of Criminal Appeal said, at p. 509:

"'… 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 section 20 of the Act of 1861, 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 cuticles; see J.J. C. (a minor) v. Eisenhower [1983] 3 All E.R. 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 Director of Public Prosecution v. Smith [1961] A.C. 290.


In section 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 Reg. v. Mowatt [1968] 1 Q.B. 421.


Three of the appellants pleaded guilty to charges under section 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 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 section 47 or section 20 of the Act of 1861 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 was participating. Surgery involves intentional violence resulting in actual or sometimes serious bodily harm but surgery is a lawful activity. Other activities carried on with consent by or on behalf of the injured person have been accepted as lawful notwithstanding that they involve actual bodily harm or may cause serious bodily harm. Ritual circumcision, tattooing, ear-piercing and violent sports including boxing are lawful activities.


In earlier days some other forms of violence were lawful and when they ceased to be lawful they were tolerated until well into the 19th century. Duelling and fighting were at first lawful and then tolerated provided the protagonists were voluntary participants. But where the results of these activities was the maiming of one of the participants, the defence of consent never availed the aggressor; see Hawkins pleas of the Crown (1824), 8th ed., Chapter 15. A maim was bodily harm whereby a man was deprived of the use of any member of his body which he needed to use in order to fight but a bodily injury was not a maim merely because it was a disfigurement. The act of maim was unlawful because the King was deprived of the services of an able-bodied citizen for the defence of the realm. Violence which maimed was unlawful despite consent to the activity which produced the maiming. In these days there is no difference between maiming on the one hand and wounding or causing grievous bodily harm on the other hand except with regard to sentence.


When duelling became unlawful, juries remained unwilling to convict but the judges insisted that persons guilty of causing death or bodily injury should be convicted despite the consent of the victim.


Similarly, in the old days, fighting was lawful provided the protagonists consented because it was thought that fighting inculcated bravery and skill and physical fitness. The brutality of knuckle fighting however caused the courts to declare that such fights were unlawful even if the protagonists consented. Rightly or wrongly the courts accepted that boxing is a lawful activity.


In Reg. v. Coney (1882) 8 Q.B.D. 534, the court held that a prize-fight in public was unlawful. Cave J. said, at p. 539:

"The true view is, I think, that a blow struck in anger, or which is likely or is intended to do corporal hurt, is an assault, but that a blow struck in sport, and not likely nor intended to cause bodily harm, is not an assault, and that an assault being a breach of the peace and unlawful, the consent of the person struck is immaterial."


Stephen J. said, at p. 549:

"When one person is indicted for inflicting personal injury upon another, the consent of the person who sustains the injury is no defence to the person who inflicts the injury, if the injury is of such a nature, or is inflicted under such circumstances, that its infliction is injurious to the public as well as to the person injured. But the injuries given and received in prize-fights are injurious to the public, both because it is against the public interest that the lives and the health of the combatants should be endangered by blows, and because prize-fights are disorderly exhibitions, mischievous on many obvious grounds. Therefore the consent of the parties to the blows which they mutually receive does not prevent those blows from being assaults … In cases where life and limb are exposed to no serious danger in the common course of things, I think that consent is a defence to a charge of assault, even when considerable force is used, as, for instance, in cases of wrestling, single-stick, sparring with gloves, football and the like; but in all cases the question whether consent does or does not take from the application of force to another its illegal character, is a question of degree depending upon circumstances."


Hawkins J. said, at p. 553:

"… whatever may be the effect of a consent in a suit between party and party, it is not in the power of any man to give an effectual consent to that which amounts to, or has a direct tendency to create, a breach of the peace; so as to bar a criminal prosecution. In other words, though a man may by consent debar himself from his right to maintain a civil action, he cannot thereby defeat proceedings instituted by the Crown in the interest of the public for the maintenance of good order; … He may compromise his own civil rights, but he cannot compromise the public interests."


Lord Coleridge C.J. said, at p. 567:

"… I conceive it to be established, beyond the power of any argument however ingenious to raise a doubt, that as the combatants in a duel cannot give consent to one another to take away life, so neither can the combatants in a prize-fight give consent to one another to commit that which the law has repeatedly held to be a breach of...

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