R v Brown

House of Lords (1994)

By
Prof. Dr. Muhammad Munir,
IIUI
FACTS OF R V BROWN

• Scotland Yard’s investigated a ring of

sadomasochistic men
• Confiscated videotapes
• Three middle-aged men and other
younger men
• One less than 21 years old
• Whether the victims were recruited or
willingly submitted remained unclear
Facts of R v Brown

• There was no evidence that suggested

that they were coerced
• Although drugs and drinks were involved
• The defendants were involved in a range
of behaviours including hot wax,
sandpaper, fish books, & needles,
• ritualistic beatings
• Branding and infliction of injuries which
caused bleeding and left scarring
facts

• Activities took place in highly controlled &

private setting, instruments were sterilized
& no one needed medical attention
• The accused were charged under sections
20 and 47 of Offences Against the Person
Act of 1861
facts

• They pleaded guilty & were sentenced to

3-18 months incarceration
• They appealed on the ground that the
Prosecution must prove lack of consent as
an element of the crime
Question before the court

• “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 or
section 47 of the Offences against the
Person Act 1861?"
Defence

• Defence: The OAPA is concerned with

attacking another person
• It is not concerned with consensual sex
• It is not directed against persons
consenting in private to assaults being
committed upon themselves
defence

• Was consent present in the instant case?

• If yes, then is it not similar to a sporting
event?
• When consent is present the use of
force is not unlawful
When does Public Interest
Arise?
• Public interest arises:
• 1. Where the assault causes permanent
injury or maims;
• 2. Where a breach of peace is likely to
result;
• 3. or where what is done is injurious to
public health.
• (1) & (2) are irrelevant in this case. (3) is
relevant & should be considered.
Defence

• It is not in the public interest that private

adult sexual behavior be regulated by law
• It is wrong to apply sections 20 & 47 of
OAPA.
• The behavior in question has not brought
any complaint from the participants or the
public
• The deliberate infliction of ABH is not
assault when done with consent;
Prosecution

• Prosecution:
• The concern of the law contained in the
Act is to protect the safety and integrity of
the person from any actual bodily harm;
• This excludes any consideration of the
issue of consent;
Lord Templeman

• “Counsel for the appellants argued that

consent should provide a defence to
charges under both section 20 and section
47 [of OAPA, representing wounding and
actual bodily harm, respectively] because,
it was said, every person has a right to
deal with his body as he pleases. I do not
consider that this slogan provides a
sufficient guide to the policy decision
which must now be made”
Lord Templeman

• “In principle there is a difference between

violence which is incidental and violence
which is inflicted for the indulgence of
cruelty.
• The violence of sado-masochistic
encounters involves the indulgence of
cruelty by sadists and the degradation
of victims.
Lord Templeman

• Such violence is injurious to the

participants and unpredictably dangerous.
• I am not prepared to invent a defence of
consent for sado-masochistic encounters
which breed and glorify cruelty and
result in offences under sections 47 and
20 of the Act of 1861”
Lord Templeman

• “Society is entitled and bound to

protect itself against a cult of violence.
• Pleasure derived from the infliction of pain
is an evil thing.
• Cruelty is uncivilised.
• I would answer the certified question in
the negative and dismiss the appeals of
the appellants against conviction”
Lord Templeman

• Lord Templeman clearly invoked the moral

outrage argument
• He applied the right and wrong argument
• Perhaps he followed his conscious
Lord Jauncey

• Lord Jauncey’s (concurring) drew heavily

on the social utility of the activity itself,
avoiding the moral outrage argument
• He focused on the real risk of serious
injury
Lord Lowry (concurring)

• “… for one to inflict any injury on another

without good reason is an evil in itself
(malum in se) and contrary to public
policy.”
Lord Mustill & Lord Slynn
(dissenting)

• Both dissenting Lords argued that the case

should be decided not within the law of
criminal violence, but within the law of
private sexual relations
• They found the majority’s holding both
paternalistic and exceeding judicial
powers
Lord Mustill’s Dissent

• Lord Mustill’s dissent argued that consent

should be a presumptive defence to
assault, and
• that the state had not produced enough
evidence to overcome that presumption
Lord Slynn (dissenting)

• It is "very strange that a fight in private

between two youths where one may, at
most, get a bloody nose should be
unlawful,
• whereas a boxing match where one
heavyweight fighter seeks to knock out his
opponent and possibly do him very serious
damage should be lawful."
Lord Mustill & Lord Slynn

• Parliament ought to decide when an

activity is dangerous, not the courts.
• Judges shouldn’t give a new ruling,
i.e. make law,
• Or should they rule on the basis of
existing law?
• Lord Slynn favoured the latter.
Lord Slynn (dissenting)

• “I do not consider that it is necessary for

the House in its judicial capacity to give
what is called "a new ruling" based on
freedom of expression, public opinion, and
the consequences of a negative ruling on
those whom it is said can only get
satisfaction through these acts; indeed the
latter I regard as being of no or at best of
little relevance to the decision in this
case.”
Lord Slynn (dissenting)

• “Nor do I think that it is for your Lordships

to make new law on the basis of the
position in other states so that English law
can "keep in line."
• All these are essentially matters, in my
view, to be balanced by the legislature if
it is thought necessary to consider the
making criminal of sado-masochistic acts
per se.”
Lord Slynn

• “I agree that in the end it is a matter of

policy. It is a matter of policy in an area
where social and moral factors are
extremely important and where attitudes
can change.
• In my opinion it is a matter of policy for
the legislature to decide.”
Lord Slynn

• “If society takes the view that this kind of

behaviour, even though sought after and
done in private, is either so new or so
extensive or so undesirable that it should
be brought now for the first time within
the criminal law, then it is for the
legislature to decide.”
Lord Slynn

• “It is not for the courts in the interests of

"paternalism,“ …, in order to protect
people from themselves, to introduce, into
existing statutory crimes relating to
offences against the person, concepts
which do not properly fit there.”
Appeal to ECHR

• The defendants appealed to the ECHR

• Argued that their conviction constituted an
interference by a public authority
• The ECHR unanimously upheld their
conviction
Consensual violence in Anglo-
American law
• 1. consent is an exception and not the rule
when one engages in activity that could
cause serious bodily injury or death
• 2. exceptions are well defined and S/M
has not fallen within those exceptions
• Their Lordships were concerned as to
what will happen if people were allowed to
engage in uncontrolled violent aggression
Some thoughts

• Eskridge: State should not send people

to jail for private behaviour that is not
expressly prohibited by statute
• Laskey: considerable number of people
were involved,
• Videotapes were made to recruit new
members
• Thus, these activities were not done in
private life
 End

• Thank you
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