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R v Brown:
Five of the appellants of the case engaged in sadomasochistic sexual acts,
consenting to the harm which they received. While none of these individuals
complained against any of the acts in which they were involved, they were
uncovered by an unrelated police investigation. Upon conviction, the appellants
argued that they could not be convicted under the Offences against the Person
Act 1861, as they had in all instances consented to the acts they engaged in.
The certified question of appeal which the House of Lords was asked to consider
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?[3]
The Lords — by a bare majority, Lords Mustill and Slynn dissenting — answered
this in the negative, holding that consent could not be a defence to offences
under sections 20 and 47 of the Offences against the Person Act 1861.
Lord Templeman stated:
It is not clear to me that the activities of the appellants were exercises of rights
in respect of private and family life. But assuming that the appellants are
claiming to exercise those rights I do not consider that Article 8 invalidates a law
which forbids violence which is intentionally harmful to body and mind. 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.
In Lord Mustill's view, the degree of consent involved could negate the
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.[4]

R v Barnes:
The Defendant had inflicted a serious leg injury upon the victim whilst
attempting to make a sliding tackle during an amateur football match. The
Defendant accepted that the tackle had been hard, but maintained that it had
been fair, and that the injury caused had been purely accidental. He was

Generally. consent is no defence to a charge of bodily harm: R v Brown (1994). she suffered cuts caused by a signet ring worn by the defendant.convicted on one count of unlawfully and maliciously inflicting grievous bodily harm. if consensual. Held: Criminal proceedings should be reserved for those situations where the conduct was sufficiently grave properly to be categorised as criminal.20 of the Offences Against The Person Act 1861. Issue When is it appropriate for criminal proceedings to be brought when an injury is caused to one player by another in the course of a sporting event. Physical injury was an inevitable risk of sport. septicaemia developed and she died. to maintain the rule of law. Some commentators took the view that all injuries caused outside the sport’s rules should be criminal. Most sports had their own disciplinary procedures that would cater for improper behaviour on pitch. . The defendant was charged with manslaughter. The court’s view that such cases should generally be dealt with by sports regulators was in line with a wellestablished tradition of judicial non-intervention in sporting matters. with little authority. Even conduct outside of the rules of the game may not be criminal. and the court considers not just the rules but the playing culture of the game when deciding if conduct is criminal. contrary to s. the defendant should be liable to be convicted of manslaughter. reaction or misjudgement in the heat of a game was not to be equated with criminal activity. The question how. although it was accepted that the act of inserting fingers or hand into the vagina or rectum for the purposes of sexual stimulation would not. putting the prosecution case at its highest. The judge was asked to make a ruling on whether. R v Slingsby: Facts: The defendant penetrated the complainant’s vagina and rectum with his hand. if at all. that would amount to an assault. and those participating consented to such injury. Comment This decision breaks new ground in the field of the criminal liability of sportsmen for causing injuries. He appealed against the conviction. amount to an assault or any other crime. The approach adopted is similar to that of the Canadian courts. This judgment rules out that view. An instinctive error. this rule could or should be modified in relation to injuries caused by foul play in sport was controversial. It was the prosecution case that if any significant injury was a likely consequence of vigorous consensual activity and injury resulted. where consent may be a defence to a criminal charge based on sporting harm.

R. not when she or the defendant were consenting to injury. The complainants later tested positive for HIV. arise because neither anticipated or considered it. (2) Consensual activity between husband and wife. did not involve an offence under section 47. and A on the other. The appellant called no evidence and was convicted. no injury at all would have been caused or could have been contemplated. 44. 212. allegedly without disclosing his HIV‐positive status. The accused testified that both women were aware of his HIV infection and were nonetheless willing to have sexual intercourse with him. allowing the appeal. if carried out with the consent of an adult. R v Dica Facts The accused was diagnosed with HIV in December 1995 and began treatment. Therefore. What the appellant had done. in fact. in the privacy of the matrimonial home. of his wife's buttocks. . Following his diagnosis. Held: The Court of Appeal. The question of consent to injury did not. At the time. At the close of the prosecution case.Held: Judge J said: ‘The difficulty with this submission was that the sexual activity to which both the deceased and the defendant agreed did not involve deliberate infliction of injury or harm and but for the coincidental fact that the defendant happened to be wearing a signet ring. Held.’ R v Wilson: Facts: The appellant was charged with assaulting his wife contrary to section 47 of the Offences Against the Person Act 1861. v. all they were considering was this vigorous sexual activity. however. he had unprotected sexual intercourse with two women. the reality was that the deceased sustained her unfortunate injuries. that (1) Brown is not authority for the proposition that consent is no defence to a charge under section 47 of the Offences Against the Person Act 1861 in all circumstances where actual bodily harm is deliberately inflicted. [1994] 1 A. the judge ruled that there was a case to answer holding that he was bound by R. In interview with the police the appellant admitted using a hot knife to brand the capital letters W on one. but as an accidental consequence of the sexual activity which was taking place with her consent. Brown (1993) 97 Cr. It would be contrary to principle to treat as criminal activity which would not otherwise amount to assault merely because in the course of the activity an injury occurred. is not a proper matter for criminal investigation or prosecution. ruled that consent to the risk of transmission through consensual sex is a valid defence to a charge of reckless transmission.C. albeit that actual bodily harm was deliberately inflicted.App.

violent conduct involving the deliberate and intentional infliction of bodily harm is and remains unlawful. that consensual acts of sexual intercourse are unlawful merely because there may be a known risk to the health of one or other participant. the question of whether the complainant did or did not consent to the risk of a sexually transmitted infection is one of fact and case specific. They are simply prepared. such as. Referring to the case. however. the Court indicated that the ultimate question is not knowledge but consent and that. These participants are not intent on spreading or becoming infected with disease through sexual intercourse. . an unintended pregnancy. as well as all the other risks inherent in and possible consequences of sexual intercourse. and despite the most careful precautions. the Court found that for public policy reasons.Consent to the risk of infection. would not provide a defence in cases of deliberate infection or spreading of HIV with intent to cause grievous bodily harm. in every case where this issue arises. notwithstanding that its purpose is the sexual gratification of one or both participants. to run the risk — not the certainty — of infection. the Court went on to find that it does not follow from them. Although it would be unlikely that consent can be established unless the complainant was informed about the risk of a sexually transmitted infection. knowingly. and they do not suggest. Based on the existing jurisprudence. They are not indulging in serious violence for the purposes of sexual gratification.

render a manslaughter verdict inevitable. For such a verdict inexorably to follow. . Held: Whilst there were several errors in the judge's direction the conviction for manslaughter was safe. simply because it is an unlawful act. They each prepared their own solution and then paired off to inject each other. A fight developed during which the appellant knocked her unconscious. The following day Farmer was found dead. at least. He tried to wake her for 30 mins to no avail. Farmer prepared his own solution and the appellant injected him.23 OAPA 1861. The appellant was convicted of manslaughter and administering a noxious thing under s. The appellant appealed on the grounds of misdirection. He invited them all to use the heroin. albeit not serious harm. the unlawful act must be such as all sober and reasonable people would inevitably recognise must subject the other person to. The trial judge made several errors in his direction to the jury and in the event they convicted of manslaughter rather than murder. the risk of some harm resulting therefrom. He believed she was dead and threw her body into a river." R v Cato (1976) 62 Cr App R 41 Court of Appeal The appellant purchased some heroin took it to his home which he shared with Anthony Farmer and two others. This was repeated during the night.OPPONENT: R v Church [1965] 2 WLR 1220 Sylvia Notts mocked the appellant's ability to satisfy her sexually and slapped his face. Medical evidence revealed that the cause of death was drowning and she therefore had been alive when he threw her into the river. Edmund Davies LJ set the applicable test for constructive manslaughter: "The conclusion of this Court is that an unlawful act causing the death of another cannot.

Held: There was no unlawful act as no assault had been committed as the victim did not believe the gun would go off therefore he did not apprehend immediate unlawful personal violence.Held: Appeal was dismissed. we think that there would have been an unlawful act here and we think the unlawful act would be described as injecting the deceased Farmer with a mixture of heroin and water which at the time of the injection and for the purposes of the injection the accused had unlawfully taken into his possession. Guilty of GBH 18 monts imprisonment upheld R v Billinghurst [1978] Crim LR 553. During a rugby match and in an off-the-ball incident B punched an opposing player. Conviction for manslaughter upheld. It was held that there had been an unlawful act of administering a noxious thing and that that act had caused death. B was charged with inflicting grievous bodily harm contrary to s20 of the Offences Against the Person Act 1861. The other was charged with unlawful act manslaughter. in the face fracturing the jaw. Lord Widgery went further: Lord Widgery CJ: "had it not been possible to rely on the charge under section 23 of the Offences against the Person Act." R v Lamb [1967] 2 QB 981 Two boys were playing with a revolver. it was not a licence for thuggery. What the defendant did had nothing to do with rugby football or the play in progress but was a vicious barbaric attack. breaking his cheekbone Held: Although the game involved forceful contact. The only issue in the case was consent. There were two bullets in the chamber but neither were opposite the barrel. The two boys believed that this meant it would not fire. One of the boys pointed the gun at the other and fired. However. As he pulled the trigger the chamber turned and the gun went off killing the boy. Evidence was given by the victim that on previous occasions he had been punched and had himself punched opponents on . R v Lloyd 1989 D a rugby player kicked another while he was lying on the ground.

the rugby field. that in the modern game of rugby punching is the rule rather than the exception. The judge told the jury that by their verdict they could set a standard for the future. The prosecution argued that public policy imposes limits on violence to which a rugby player can consent and that whereas he is deemed to consent to vigorous and even over-vigorous physical contact on the ball. he is not deemed to consent to any deliberate physical contact off the ball. The jury." A distinction which the jury might regard as decisive was that between force used in the course of play and force used outside the course of play. and by a defence witness. It was argued by the defence that in the modern game of rugby players consented to the risk of some injury and that the prosecution would have to prove that the blow struck by B was one which was outside the normal expectation of a player so that he could not be said to have consented to it by participating in the game. ." He went on to direct them that a rugby player has no unlimited licence to use force and that "there must obviously be cases which cross the line of that to which a player is deemed to consent. The judge directed the jury that rugby was a game of physical contact necessarily involving the use of force and that players are deemed to consent to force "of a kind which could reasonably be expected to happen during a game. by a majority verdict of 11 to 1. convicted B. a former International rugby player.