| Citations: |
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| Court: | House of Lords |
| Full Name: | R v Brown, Laskey, Jaggard, Brown, Carter |
| Number Of Judges: | 5 |
| Appealed From: |
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| Appealed To: | Laskey, Jaggard and Brown v. the United Kingdom in the European Court of Human Rights (as to the section 20 offence applicable to those only) |
| Concurring: | Lord Templeman, Lord Jauncey, Lord Lowry |
| Dissenting: | Lord Mustill, Lord Slynn |
| Opinions: | Conviction upheld |
| Transcripts: | UKHL. 1993. 19. |
| Date Decided: | 11 March 1993 |
R v Brown. UKHL. 1993. 19. [1994] 1 AC 212. [1] is a House of Lords judgment which re-affirmed the conviction of five men for their involvement in consensual unusually severe sadomasochistic sexual acts over a 10-year period. 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). The key issue facing the Court was whether consent was a valid defence to assault in these circumstances, to which the Court answered in the negative. The acts involved included the nailing of a part of the body to a board, but not so as to necessitate, strictly, medical treatment.
The court found no direct precedent for sadomasochism among the senior courts (those of binding precedent) so applied the reasoning of three indirectly analogous binding cases and others.
The case is colloquially known as the Spanner case, named after Operation Spanner, the investigation which led to it.
The five appellants engaged in sadomasochistic sexual acts, consenting to the harm which they received; whilst their conviction also covered alike harm against others, they sought as a minimum to have their mutually consented acts to be viewed as lawful. None of the five men complained of any of the acts in which they were involved, which were uncovered by an unrelated police investigation.[2] The physical severity was not disputed. Each appellant (having had legal advice) pleaded guilty to the offence when the trial judge ruled that consent of the victim was no defence.
The question approved and certified as in the public interest on appeal was whether the prosecution had to prove (in all similar cases) a lack of consent on the recipient's part. The appellants argued against conviction under the Offences Against the Person Act 1861 as they had in all instances consented to the acts they engaged in (volenti non fit injuria), that as with tattooing and customary-site body piercings their consent would be directly analogous to the lawful exceptions laid out by three cornerstone (and other) widely-spaced precedent cases.
The certified question of appeal which the House of Lords was asked to consider was:
The Lords – by a bare majority, two out of five dissenting – answered this in the negative, holding that consent could not be a defence to these (typically overlapping) offences.
Lord Templeman stated:
His judgment examined the acts to be "unpredictably dangerous and degrading to body and mind and were developed with increasing barbarity and taught to persons whose consents were dubious or worthless".
Lord Jauncey stated:
Lord Lowry stated:
Lord Mustill preferred consensual, private, sexual acts, up to and including involving ABH, to be outside of criminality:
In my opinion it should be a case about the criminal law of private sexual relations, if about anything at all ... [leaving aside] repugnance and moral objection, both of which are entirely natural but neither of which are, in my opinion, grounds upon which the court could properly create a new crime.[3]
Lord Slynn agreed:
Legal journals and textbooks of the 21st century tend towards criticism of the majority's analysis and overtones.[4] Baker[5] writes:
Marianne Giles calls the judgment "paternalism of an unelected, unrepresentative group who use but fail to acknowledge that power".[6]
Two years later Baker argued
Opposition to the judgment (in both consecutive appeals) legally focusses on the dissenting two final judges and the contrasting R v Wilson whereby a husband painfully branded his initials on his wife's buttocks at her request.[7] Fears of bias due to heteronormativity were allayed in R v Emmett,[8] whereby the lower court of binding precedent, the Court of Appeal of England and Wales, held the same rules apply to heterosexual participants in such acts.[9]
Citing R v Brown, law professors Fox and Thomson (2005) argue against non-therapeutic circumcision of boys, to the audience of medical professionals.[10]