Free Life 18, May 1993, Reflections on the Case of R v Brown, by Sean Gabb
From Free Life No 18, May, 1993
ISSN: 0260 5112
Reflections on the Case of R v Brown
by Anthony furlong (Sean Gabb) Furlong
Note: Late in 2003, I was contacted by one of the Defendants in this case. He asked me to remove all the names. It makes sense that I should do so. In 1991, the men in question needed publicity to expose the injustice done to them. Nowadays, they simply want to get on with their lives.
The facts of this case are agreed by all parties as follows:
During a ten year period from 1978, a group of homosexual sado-masochists willingly joined in acts of violence against each other. This violence ranged from beating to branding to the forcing of a nail through someone's foreskin. The acts took place in various private houses, often in rooms equipped as torture chambers. Many were filmed on video tape, and the tapes were distributed through the post to members of the group.
All acts save one - for which the evidence against is ambiguous - took place with the full consent of all the relevant parties.
Some time in 1987, one of the video tapes fell into the hands of the Metropolitan Police Obscene Publications Squad, which began an investigation - codename: Operation Spanner. Arrests were made, and 15 men stood trial at the Old Bailey in December 1990, charged among much else with assaults against each other contrary to sections 20 and 47 of the Offences Against the Person Act 1861.
The other charges are of no importance to the present case.1 Those under the 1861 Act, however, were objected to on the grounds that where there is consent there can be no assault. The trial Judge, Mr James Rant QC, rejected this submission with the words
Much has been said about individual liberty and the rights people have to do what they want with their own bodies, but the courts must draw the line between what is acceptable in a civilised society and what is not. In this case, the practices clearly lie on the wrong side of that line.2
This being said, the Defendants pled guilty to the charges. All were convicted and sentenced to various custodial and non-custodial sentences.3
Five of the convicted - Messrs Brown, Laskey, Jaggard, Lucas, and Carter - appealed against conviction and sentence. Giving Judgment on the 19th February 1992, the Court of Appeal upheld Mr Rant's ruling, that consent to sado-masochistic acts does not negative assault. The sentences were reduced, but with the proviso that
[w]e take the view that the function of the court is to mark its disapproval of these activities by imposing short terms of immediate imprisonment. We are prepared to accept that the appellants did not appreciate that their actions in inflicting injuries were criminal and that the sentences upon them should be comparatively lenient. In future, however, that argument will not be open to a defendant in circumstances such as these. 4
The case was sent to the House of Lords to seek clarification of the following certified point of law of public importance:
Where A wounds or assaults B occasioning him actual bodily harm in the course of a sadomasochistic sexual encounter, does the prosecution have to prove lack of consent on the part of B before they can establish guilt under section 20 and section 47 of the 1861 Offences Against the Person Act?
The case was heard on the 5th December 1992, and judgment was given on the 11th March 1993.
Now, the relevant sections of the 1861 Act read:
s20 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 [liable on conviction on indictment to imprisonment for not more than five years...];
s47 Whosoever shall be convicted on indictment of any assault occasioning actual bodily harm shall be liable [on conviction on indictment to imprisonment for not more than five years...].
As is often the way with criminal statutes, Parliament here has stated a number of general principles, leaving the courts to interpret them in the light of the common law. Thus, it has been for the courts to define words such as "assault", "maliciously", "grievous" and "actual bodily harm". Equally, since nothing is said in the statute, it has now been for the courts to decide whether an assault can only take place in the absence of consent, or if in certain circumstances consent is irrelevant.
Most of my readers, I am sure, will think this a bizarre question. Why, in a free country, should it be necessary to have the Judges tell us whether we can do with ourselves as we please? The answer is that we do not live in a particulary free country. I quote Lord Templeman's speech on this point:
Counsel for the appellants argued that consent should provide a defence to the charges under both ss 20 and 47 because, it was said, every person has a right to do 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. It is an offence for a person to abuse his own body and mind by taking drugs. Although the law is often broken, the criminal law restrains a practice which is regarded as dangerous and injurious to individuals and which if allowed and extended is harmful to society generally. 5
It does appear that the answer to the certified question is no - that when two sado-masochists make love, they are committing a serious offence in English law.
As counsel for the defence submitted at the trial, it is the essence of a crime against the person that injury is inflicted contrary to the will of the victim. This is the admitted assumption of the law. Consent is a valid defence; and it is for the prosecution to prove its absence.6 It is not, however, a defence in every case. There are circumstances in which a plea of consent will be rejected by the courts.
There is fraud. If you consent to my injecting a vaccine into your body, and I instead inject a useless irritant, I shall very likely be guilty of battery. It is the same if I lie to you that I am a qualified dentist and unnecessarily pull out one of your teeth. Fraud will negative consent where the injured party is deceived as to the identity of the person or the nature of the act.
There is duress. If I hold you prisoner and will not release you unless you consent to have sexual intercourse with me, your consent will not be recognised by the courts; and I shall be guilty of rape or an indecent assault. There is doubt as to the amount of duress required to negative consent. It is thought that if I merely threatened to dismiss you from my employment, or to bring a prosecution against you - both lawful acts in themselves - I might still be guilty. The probable test to be applied is whether, having regard to the gravity of the threat and the proposed act, the will of a reasonably firm person is likely to be overcome.
There is the incapacity of minors. Some years ago, a defendant tattooed boys aged 12 and 13, and they suffered injury as a result. Although they had consented to be tattooed, the court decided that they were too young to understand the nature and likely consequences of the act to which they had submitted. The defendant's plea was rejected.7
Finally, there is the public interest. There are supposed to be certain classes of act which the State ought not to allow, irrespective of whether the parties have given their fullest and most informed consent. It is for the defence to prove that the act in question falls into one of these categories.
Now, this goes far beyond the two other limitations described above. Those are quite compatible with the right of adult individuals to do with their bodies as they will. They operate only where, on account of the circumstances of the injured party, consent cannot be taken as genuine. This, however, allows the fullest public supervision of private actions. There has never been a comprehensive definition of the concept. Instead, it is for the judges to decide whether any particular class of acts is in the public interest. It is for them, consulting their own sense of right and propriety, to decide what we may do with ourselves and each other. It is their prejudices, and not an objective, logical rule, that are allowed to define the limits of our freedom.
Take, for example, the case of sporting injuries. Prize fights are not in themselves illegal in England. But they have nearly always been held by the courts to amount to batteries. Yet boxing matches held in accordance with the Queensberry Rules have not. Both have entertainment value. Both involve considerable danger of injury or even death to the participants. But only the dangers in the former have been held to be too great for the public interest to be served by their toleration. As Mr Justice Cave said just over a century ago:
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. If this view is correct, a blow struck in a prize-fight is clearly an assault; but playing with single-sticks or wrestling do not do not involve an assault; nor does boxing with gloves in the ordinary way, and not with...ferocity and severe punishment to the boxers.8
A professional boxer may consent to have his brains knocked out in the ring, so long as the customary rules of conduct are observed. That is in the public interest. It is a different matter if those rules are not observed. If two people outside a legitimate boxing ring black each other's eyes, at least one of them commits an assault. In 1980, two youths decided to settle their differences by finding out which had the harder fists. One got a bloody nose a few bruises. The victor was charged with assault occasioning actual bodily harm, but was acquitted by the jury. The Attorney General referred the points raised in the case to the Court of Criminal Appeal for clarification. He was answered thus:
...It is not in the public interest that people should try to cause or should cause each other actual bodily harm for no good reason. Minor struggles are another matter. So, in our judgment, it is immaterial whether the act occurs in private or in public; it is an assault if actual bodily harm is intended and/or caused. This means that most fights will be unlawful regardless of consent....
[Yet n]othing that we have said is intended to cast doubt on the accepted legality of properly conducted games and sports, lawful chastisement or correction, reasonable surgical interference, dangerous exhibitions, etc. These apparent exceptions can be justified as involving the exercise of a lawful right, in the case of chastisement or correction, or as needed in the public interest, in the other cases. 9
Their Lordships here mention "reasonable surgical interference". The test of what is reasonable is, again, what they consider to be right and proper. If my legs are so badly mangled in an accident that my life is endangered, I may consent to having them cut off. The preservation of my life, I am sure, would be held to be in the public interest. But, if, like one of the characters in Peter Greenaway's A Zed and Two Noughts, I had one leg cut off merely for aesthetic reasons, to balance the earlier loss of the other in an accident, my surgeon might well find himself in trouble. That degree of body modification might offend the Judge. He might not think that to be at all in the public interest.
It is the same with sexual conduct. See, for example, Lord Denning 40 years ago, commenting on the legality of an hypothetical vasectomy:
When it is done with the man's consent for a just cause, it is quite lawful, as, for instance, when it is done to prevent the transmission of an hereditary disease; but when it is done without just cause or excuse, it is unlawful, even though the man consents to it. Take a case where a sterilisation operation is done so as to enable a man to have the pleasure of sexual intercourse without shouldering the responsibilities attaching to it. The operation is then plainly injurious to the public interest. 10
Though only obiter dicta, and though now obsolete, this passage is still important. It shows the bias likely to be taken by the judges in other matters relating to sexual non-conformity. It leads straight to the Court of Appeal observations on the present case:
It is sufficient to say, so far as the instant case is concerned, that we agree with the learned trial judge that the satisfying of sado-masochistic libido does not come within the category of good reason....11
So long as the Judges come from the same background, or are permitted to absorb the same view of the world from their training in the Inns of Court, their view of the public interest is likely to remain broadly similar. This is hard for the Spanner Defendants, but is probably the only way by which a concept so broad and illimitable as the public interest may be rescued prom a purely arbitrary vagueness.
Not surprisingly, following these cases and this line of reasoning, the Lords upheld the convictions by five votes to three. The effect of this judgment is to confirm what before was only a provisional criminalisation of all sado- masochistic sex beyond the most trivial, and regardless of whether the participants are homosexual or heterosexual. To quote Lord Templeman again,
[s]ociety is entitled 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.12
Moreover, by an interesting twist in Lord Lowry's judgment, it seems that buggery - irrespective of whether committed in private between consenting adults - has been in certain cases recriminalised. I quote from his speech:
If in the course of buggery, as authorised by the 1967 Act, one participant, either with the other participant's consent or not, deliberately causes actual bodily harm to that other, an offence against s 47 has been committed. The 1967 Act provides no shield. The position is as simple as that, and there is no legal right to cause actual bodily harm in the course of sado- masochistic activity.13
It is possible to perform an act of buggery without causing actual bodily harm to the passive party. It requires plenty of lubrication and a caution of movement unnecessary in most vaginal intercourse. In practice, though, I understand that most buggery is attended by actual bodily harm. The delicate lining of the rectum is easily torn, and once torn is easily damaged again by further incursions. So far as such damage is avoidable, it is arguably deliberate. Some damage is not only caused deliberately, but gives pleasure to one or both parties. I quote from a graffito on a toilet wall in Goldsmiths' College:
Fucked Adam last night. Made him bleed with joy and ecstasy.
Such buggery is now certainly illegal.
However, even those buggeries not occasioning immediate damage may contribute to damage in the long term. The older medical textbooks refer to a condition known as "funnel-shaped" anus, a smoothing and displacement of the anal sphincter muscles caused by habitual buggery. One homosexual friend of mine - now sadly deceased - had to wear special rubber knickers to hold his buttocks together and so restrain the excrements that would otherwise have dropped freely into his trousers. I understand that many rent boys need eventually to push tampons into their rectums for the same reason.
It needs only a little judicial reasoning for buggery to be as surely criminal as before 1967 - though not now as a sexual offence but as an offence against the person.
It may be that I am putting too much emphasis on this passage. But I doubt this. The whole case might have been thought incredible only a few years ago, and is still astonishing to many. It cost, I am told on good authority, £19 million of public money - money that would not have been so freely lavished on a case that was not regarded as a worthwhile investment. It imposes a restraint previously unknown or ambiguous on certain kinds of sexual behaviour. I see no reason to doubt that it will be mined as a precedent for restraints on other kinds of sexual behaviour as and when the relevant authorities decide to move against them.
I could now launch into a polemical attack on the right of these unelected old men to alter the law, creating crimes where none existed before. I will not do this, however, since I believe that the Judges are on the whole far better at legislating than any Parliament than I can remember or imagine. Indeed, if the Judges had been left totally in control of the making and interpretation of laws since around 1870, we might today be living in something like a libertarian utopia, complete with flights to the stars and indefinite life extension.
However, there are instances where the Judges go wrong, usually on account of some defect in the common law caused by their predecessors' having allowed their natural bigotry to intrude into their professional duties. This is one such instance. I accept that the Court of Appeal was probably required to follow the reasoning of the earlier cases. The House of Lords was not. Since 1966, it has been possible for the Lords to depart from a whole line of decided cases, and to establish a new principle more in keeping with common sense or justice or both.14
The Lords did not decide to depart from the established line of precedents. We must therefore hope that the European Court of Human Rights will reach a just decision, and will then prompt the British Government to do what is has so far shown no intention of doing - that is, to push a short Declaratory Bill through Parliament, to tell the Judges how the 1861 Act ought to be interpreted.
This is in every respect a saddening case. And we must not forget that it is most saddening because there are now men imprisoned in this country for acts that are regarded in almost no other Western jurisdiction as criminal.
1. They are discussed in my earlier pamphlet on this issue, Sado-Masochism and the Law: Consent v Paternalism, "Legal Notes", The Libertarian Alliance, London, 1991.Back to document
2. The Times, London, 20th December 1990. Back to document
IW, for keeping a disorderly house and causing actual bodily harm, was jailed for three and a half years.
His accomplice, PG, for the same offences and for possessing drugs, was also jailed for three and a half years.
CL, 46, a computer operator of Pontypridd in Glamorganshire, for causing or aiding and abetting actual bodily harm and possessing an indecent photograph of a young person, was jailed for four and a half years.
GC, 52, an ice cream salesman of Bolton in Lancashire, for keeping a disorderly house and taking and possessing indecent photographs of a young person, was jailed for four and a half years.
AB, 54, a retired local government officer of Yardley in Warwickshire, for assault and aiding and abetting assault, was jailed for two years and nine months.
RJ, 42, a missile design engineer of Welwyn Garden City in Hertfordshire, for actual bodily harm, was jailed for three years.
SL, 57, a restauranteur and lay preacher of Evesham in Worcestershire, for actual bodily harm, was jailed for three years.
DA, 60, a retired pig breeder of Hartford in Carmarthenshire, for keeping a disorderly house to which people came "to take part in acts of sadistic and masochistic violence and accompanying acts of a lewd, immoral and unnatural kind", was jailed for 12 months. His plea of not guilty to buggery with a dog and donkey were accepted by the court.
JA, 48, an antiques restorer and restauranteur of Broadway in Worcestershire, for aiding and abetting others to cause injury to himself, was given two years' probation.
CCr, 37, a fancy dress hire proprietor of Shrewsbury in Shropshire, for aiding and abetting actual bodily harm, was jailed for 12 months, suspended for two years.
CZ, 51, a lawyer of Haverstock Hill in London, for actual bodily harm, was jailed for 12 months, suspended for two years.
JL, 49, a retired fire officer of Lowestoft in Suffolk, for causing or aiding and abetting actual bodily harm to another and to himself, was jailed for 21 months, suspended for two years.
AO, 56, a tattooist of Bayswater in London, for offences not disclosed in my newspaper reports, was jailed for 15 months, suspended for two years. I suspect he was the well-known tattooist, Mr Sebastian.
AG, 55, an hotel porter of Thornaby-on-Tees in Yorkshire, for conspiracy to send indecent photographs through the post, was given a conditional discharge.
GS, 41, a photographic developer of Coalpit Heath in Gloucestershire, for sending indecent material through the post, was fined £1,000.
PK, 23, of Horwich in Cheshire, for aiding and abetting Graham Cadman to keep a disorderly house, was given a two year conditional discharge earlier in 1990.
(Source: The Times, London, 20th December 1990, The Daily Telegraph, London, 21st December 1990. Further details in notes to Furlong (1991)) Back to document
4. R v Brown  2 All ER 560.Back to document
5. R v Brown  2 All ER HL 82 Back to document
6. R v Donovan  2 KB 498. Back to document
7. Burrell v Harmer  Criminal Law Reports 169, together with the printed commentary. Back to document
8. R v Coney (1882) 8 QB 534. Back to document
9. Attorney General's Reference (No. 6 of 1980)  2 All ER 1057.Back to document
10. Bravery v Bravery  3 All ER 59. Back to document
11. R v Brown  All ER CA 559. Back to document
12. R v Brown  2 All ER 84. Back to document
Notwithstanding any statutory or common-law provision, but subject to the provisions of the next following section, a homosexual act in private shall not be an offence provided that the parties consent thereto and have attained the age of 21 years."