R v Wilson (Alan)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RUSSELL |
| Judgment Date | 29 February 1996 |
| Judgment citation (vLex) | [1996] EWCA Crim J0229-4 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No: 95/4370/Z5 |
| Date | 29 February 1996 |
[1996] EWCA Crim J0229-4
IN THE COURT OF APPEAL CRIMINAL DIVISION
Before: Lord Justice Russell Mrs Justice Bracewell and the Recorder of Newcastle (Acting as a Judge of the Court of Appeal)
No: 95/4370/Z5
MR G LAKIN appeared on behalf of the Appellant
MR R BIRCH appeared on behalf of the Crown
This is an appeal against conviction, as of right, on a point of law which has been referred to the Court by the Registrar.
On 16th May 1995 the appellant, Alan Thomas Wilson, was convicted by the verdict of the jury, in the Crown Court at Doncaster before His Honour Judge Crabtree. The charge was one of assault occasioning actual bodily harm contrary to section 47 of the Offences Against the Person Act 1861, the particulars being that on 14th May 1994 the appellant assaulted Julie Anne Wilson, thereby occasioning her actual bodily harm. The so-called victim was the wife of the appellant.
The facts were not in dispute. Mrs. Wilson, a woman of mature years, did not give evidence. The evidence of a Dr. McKenna was read. The only oral evidence heard by the jury was from a police officer who produced the record of an interview with the appellant which was tape-recorded on the afternoon of 20th May 1994. The content of that interview, it was acknowledged, told the whole story.
The police informed the appellant that his wife had been medically examined and that marks had been observed on both her buttocks. On the right buttock, as the photographs before the Court disclose, there was a fading scar in the form of a capital letter 'W', and on the left buttock, a more pronounced and more recent scar in the form of a capital letter 'A'. The two letters 'A' and 'W' were the initials of the appellant.
He at once admitted that he was responsible for the marks. He told the police:
"I put them there. She wanted a tattoo and I do not know how to do a tattoo, but she wanted my name tattooed on her bum and I didn't know how to do it; so I burned it on with a hot knife. It wasn't life threatening, it wasn't anything, it was done for love. She loved me. She wanted me to give her —put my name on her body. As I say, she asked me originally if I would tattoo my name on her. She wanted me to do it on her breasts and I talked her out of that because I didn't know how to do a tattoo. Then she said, 'Well, there must be some way. If you can't do a tattoo, there must be some way' she says. I think her exact words were summat like, 'I'm not scared of anybody knowing that I love you enough to have your name on my body', something of that nature, and between us we hit on this idea of using a hot knife on her bum. I wouldn't do it on her breasts."
The medical evidence simply commented upon the existence of the letter 'A' on the left buttock as having been branded on Mrs. Wilson a few days before 20th May 1994. Dr. McKenna added: "There was associated bruising around the burn and the skin hadn't fully healed." No reference was made by the doctor to a faded scar on the right buttock.
At the conclusion of the evidence called by the prosecution, defence counsel submitted that his client had no case to answer. The judge, in a ruling of which we have a transcript, after reviewing the facts and authority, concluded as follows:
"The reality that I have to deal with is that on the face of it the majority in the House of Lords in the case of Brown approved of the dicta in the case of Donovan and that accordingly until such time as the legislature or the European Court do something about it we are now saddled with a law which means that anyone who injures his partner, spouse, or whatever, in the course of some consensual activity is at risk of having his or her private life dragged before the public to no good purpose.
Sadly, I take the view that I am bound by the majority in the case of Brown and that I would have to, in those circumstances, direct this Jury to convict."
Counsel for the defendant, in the light of that ruling, did not call his client and did not make any submissions to the jury, who in due course convicted the appellant. The judge conditionally discharged him for a period of 12 months.
It is effectively against that ruling of the judge that the appeal is brought to this Court. In the court below, and before us, reference was predictably made to The King v. Donovan [1934] 2 K.B. 498, a decision of this Court, and to R v. Brown [1993] 2 All E.R. 75, a decision of the House of Lords. They are the two authorities to which the learned trial judge referred in the observations we have cited.
In Donovan, the appellant, in private, beat a girl of 17 years of age for the purposes of sexual gratification, with her consent. The act had about it an aggressive element. The Court held that consent was immaterial. In Brown, the appellants...
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