January 19941 R v Brown

defamation, false imprisonment, trespass to goods, breach of copyrightg3and

private nuisance for which exemplary damages are available. It would seem that
they will not now be available for negligence, sexual discrimination, racial
di~crimination,~~ deceit, procuring a breach of contract, secondary picketing,
malicious p r o s e c u t i ~ nand
~ ~ conversion.86The division between the two groups
of nominate torts is logically unjustifiable. Why should exemplary damages be
available for trespass to goods but not for their conversion; for libel but not for
malicious prosecution; for abuse by the police of their power to arrest but not for
refusing to return confiscated property or malicious process The latter
inconsistency is notably bizarre given the origins of the doctrine as a means of
deterring abuses of state power.
The Court of Appeal has taken a decision with entirely arbitrary results. What is
particularly disappointing is that the arguments against the plaintiffs' succeeding
were so clear cut. There was no need to think deeply about the validity of the
remedy within the structure and development of the law. Had the issues been more
marginal things may have been different. We must now wait, perhaps indefinitely,
for the House of Lords or ParliamenP to reopen the door which should never have
been closed.

R v Brown: Consensual Harm and the Public Interest

Marianne Giles *
In the case of R v Brown and Others,' the House of Lords was asked to consider
the relevance of consent to the offences of assault occasioning actual bodily harm
and unlawful wounding.2 It was undisputed that consent to the causing of such
harm was sometimes relevant to liability . 3 The main issue was whether consent
to private sado-masochistic activities meant either that the activity was lawful in
the first place or that there was a valid defence. ~

83 In Secretary of State for the Home Department v Central Broadcasting (1993) The Times, 27 January,
Aldous J gave obiter support to this view.
84 The Employment Appeal Tribunal has already applied the Court of Appeal's cause of action test to
hold that exemplary damages are unavailable for racial discrimination: Deane v London Borough of
Ealing (1993) EAT/33/91 unreported.
85 There appear to be no pre-1964 cases of malicious prosecution which provide clear authority for the
award of exemplary damages. Damages were, however, frequently very high, eg Selby & Firman v
Maclenmn (1961) The Times, 9 May, and could be explained on an exemplary basis.
86 The position in respect of conversion is less than clear because it is arguable that some pre-1964 cases
involving goods may now best be explained as conversion. See eg Brewer v Dew (1 843) 11 M&W 625.
87 Discussed in Clayton and Tomlinson, Civil Actions Against the Police (London: Sweet & Maxwell,
1992) pp 303-306.
88 Since this note was written the Law Commission has produced a working paper on exemplary damages
which suggests extensive reforms. See Law Com WP 132 (1993).
*Connecticut, USA.
1 [I9921 2 All ER 552 (CA); [I9931 2 All ER 75 (HL).
2 s 20 of the Offences Against the Person Act 1861 provides: '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 guilty of [an offence], and being convicted thereof shall be liable to
[imprisonment for not more than five years].' S 47 provides: 'Whosoever shall be convicted upon an
indictment of any assault occasioning actual bodily harm shall be liable . . . to [imprisonment for five
years]. '
3 For example, in cases of surgical operations. Lord Templeman lists examples - see [ 19931 2 All ER
75. 79.

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The Facts
The appellants were members of a group of homosexuals who took part in sado-
masochistic acts against each other on a number of occasions. No permanent
injuries were caused and in each case the passive partner had participated
willingly. The activities had been videoed and copies distributed to members of the
group. They were charged under sections 47 and 20 of the Offences Against the
Person Act and, following the trial judge’s ruling that consent was not a defence to
these charges, the appellants pleaded guilty and then applied to the Court of Appeal
on the basis that consent was relevant. The Court of Appeal dismissed their appeals
and they then appealed to the House of Lords. The point of law of general public
importance certified by the Court of Appeal was as follows:
Where A wounds or assaults B occasioning him actual bodily harm in the course of a sadomasochistic
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 and section 47 of the Offences Against the Person Act?
The House of Lords by a 3:2 majority dismissed the appeal, holding that it was not
necessary to prove lack of consent.

The Prior Case Law

The three cases discussed in detail by their Lordships and perceived to be the most
directly relevant in interpreting the statute were R v Coney,4R v D o n o v ~ nand ,~
Attorney General’s Reference (No 6 of 1980).6
In Coney, the defendant was charged with common assault. He and others had
been involved in a prize fight, and it was held that, the prize fight being illegal, the
consent of the main participants was irrelevant to liability, With judgments given
by eleven judges, it is difficult to extract a ratio decidendi, but the case is authority
for the proposition that lack of consent is an element of common assault, and that
ordinarily there is no liability for consensual touching. Much of the discussion is
irrelevant to the present issue, concerning as it does the question of aiding and
abetting. The reasons why a consensual touching might be unlawful vary from the
unlawfulness of prize fighting, the dangerousness of the acts, protection of the
public interest, to the consequent breach of the peace. Cave J classes those blows
likely or intended to do corporal hurt as an assault, but goes on to say that a blow
struck in sport would not be an assault because it would not be likely or intended to
do corporal hurt - a statement which, in the context of modern sport, and
particularly in the case of boxing, is misleading and unhelpful. Matthew J
emphasises the dangerousness of the behaviour, concentrating on the potential
physical harm again. The other judges take a rather wide view, concentrating on
the public interest rather than the individual interests of the participants.
Although there is clear agreement that the acts are unlawful despite the consents,
there is no clear agreement why. If one were to adopt the approach of the first two
judges and concentrate on potential physical harm, then the case becomes a much
stronger authority than if one concentrates on breach of the peace or the public
interest, where the public nature of the fight becomes much more crucial. The
majority judges in Brown take the former approach as one of the strands of their
~~

4 (1882) 8 QBD 534.

5 [1934] 2 KB 498.
6 [198l] 2 All ER 1057, hereinafter referred to as Arrorney General’s Reference.

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January 19941 R v Brown

judgment, differentiating as they do between acts causing mere trifling injury and
those causing actual bodily harm. To draw such a conclusion from such a flimsy
and uncertain basis is unacceptable, but explicable in the light of interpretations of
Coney on which they relied.
The next relevant case is that of Donovan, felt to be particularly helpful because
of the sexual element in the assault, but again not a case directly on the point as it
does not involve charges under sections 47 or 20 of the 1861 Act. In Donovan, the
appellant was convicted of indecent assault and common assault, for both of which
lack of consent is a required element. He had used a cane to beat a girl of
seventeen, with her consent, for the purposes of sexual excitement. He appealed
on the basis of a misdirection on the question of consent. The judgment of the court
was read by Swift J. He states that the summing up at trial was defective in two
respects. The prosecution’s burden of proof in proving absence of consent was not
made clear, and should have been. Additionally, the direction that the question of
consent was a matter of fact and that the defendant’s belief in consent was
irrelevant, was misleading, because it did not make it clear that if a reasonable
person thought on balance that there was evidence of consent, this was inconsistent
with the prosecution discharging their burden of proof. For these reasons, the
jury’s verdict was unsafe and the appeal allowed. This approach makes it clear that
the question of consent or lack of consent is part of the elements of the offence and
must be proven beyond all reasonable doubt like all other elements. It does not
treat consent as a defence. Unfortunately, the judgment goes beyond these points
directly relevant, and it is the more general discussion which is used as a basis for
later authority. In discussing Coney, the court made the following general
statement in relation to consent:
where the act charged is in itself unlawful, it can never be necessary to prove absence of consent on the
part of the person wronged in order to obtain the conviction of the wrongdoer. There are, however,
many acts in themselves harmless and lawful which become unlawful only if they are done without the
consent of the person affected.’
In itself this is not particularly helpful; it is merely another way of emphasising that
the issue of unlawfulness may sometimes but not always be tied to the lack of
consent. It emphasises the approach that lack of consent is sometimes an element
of the offence which needs to be proved.
Another element said to constitute unlawfulness is the probable* consequence
of actual bodily harm. This statement is obiter dicta, and a significant qualification
of Sir James Fitzjames Stephen’s earlier proposition in his Digest requiring maim
before consent is deemed irrelevant. Maim involved threat to life or limb, and is
therefore a considerably narrower proposition than the requirement of actual
bodily harm. It is now substituted by a requirement of a ‘hurt or injury calculated
to interfere with health or comfort . . . [which is] more than merely transient or
trifling. ’9
As a result of obiter dicta in Donovan, therefore, we have the basis of the
majority approach in Brown. A general rule is supposed to exist which states that
all causing of bodily harm is p r i m facie unlawful, but that there are exceptions to
this rule. This rule is a completely separate one from that which says that lack of

7 (1882)8 QBD 534,539.

8 It is not clear why the word probable is inserted here. The causing of actual bodily harm may be
categorised separately as unlawful, but the violent threat of actual bodily harm which does not in fact
materialise is common assault only.
9 [I9341 2 KB 498, 509.

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consent is an element of assault, and must be proved. The court in Donovan gives
some examples of the exceptions to the general rule, whereby there may be a
‘defence’ to the unlawful conduct. One such example is ‘manly diversions’ such as
consensual wrestling, intended to give ‘strength, skill and activity. ’ Another such
example is given as rough horseplay where no intent to cause harm is present. The
lack of anger or intent to harm seems to be the relevant characteristic here.
Consent in itself will not be a sufficient factor to legitimate the action in these
cases, in the way it is with common assault. It therefore becomes crucial to decide
where the dividing line is between those cases where lack of consent is an element
of the offence which must be proved, and those cases which are unlawful in
themselves, whether consented to or not, unless they fall within one of the
categories of exceptions. lo
The next case to consider the issue was Attorney General ’3Reference, a decision
of the then Lord Chief Justice, Lord Lane, and a decision which obviously
influenced his approach to the present case in the Court of Appeal.’’ In that case
the respondent had been involved in an argument with another person and they
agreed to fight to settle their argument. The respondent caused the victim actual
bodily harm. He was charged with an assault, but acquitted because of the victim’s
consent. The Attorney General referred to the Appeal Court the question of
whether, when two persons fought in a public place, it could be a defence to a
charge of assault that the other party had consented. The Lord Chief Justice held
that ordinarily there was no assault if the victim consented but that there were
exceptions to that rule in the public interest. The burden was therefore on the
prosecution to prove lack of consent as one of the elements of the offence.
In terms of the exceptions to the general rule, he cites Coney as an example of
the public interest cases, but in discussing Donovan and the point made there that
the act will be unlawful if bodily harm is caused, he describes the reasoning as
tautologous and pays it scant attention. In trying to evolve a more modern
approach to public interest, he rejects dicta in older cases and finds that it is not in
the public interest for people to harm each other for no good reason. This is the
stage at which, without relying on any authority and disregarding obiter dicta
comments which might have taken him in other directions, Lord Lane adds a
further layer to the test of what is or is not unlawful. This approach is adopted by
the majority in Brown. However, Lord Lane adds nothing helpful to the decision-
making process. By adding to the concept of ‘public interest’ that of ‘good reason,’
he requires a court to in effect ask the same question twice, and at the same time he
complicates the burden of proof issue and reverses the basic assumption from that
of lawfulness to unlawfulness. In addition, his explanation of ‘good reason’ is
vague in the extreme, consisting as it does only of examples of areas already
established which he fails to evaluate or enlarge upon.
As a result of this case, therefore, we have moved from a starting point in line
with earlier authority that lack of consent is an element of assault unless the case
falls within a category of recognised exceptions, to a situation where consensual
assault causing harm is prima facie unlawful unless the behaviour falls within one
of the categories legalising conduct. This case is, therefore, a crucial turning point
in the approach to this issue. It is the basis on which Lord Lane again gives

10 Those exceptions close in circumstance to Donovan were the only ones discussed in the case, although
Swift J did note that there were others. Examples might be surgical operations, reasonable
chastisement and prevention of crime.
1 1 [I9921 2 All ER 552.

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judgment in the Court of Appeal in Brown, and the confusion it causes is

compounded by the majority judgments in the House of Lords.

The Main Issue

The basic issue which presents itself to the House of Lords, therefore, is the
question of whether one looks to the public interest in order to legalise p r i m facie
illegal behaviour (the paternalistic approach) or whether one uses public interest to
criminalise potentially lawful behaviour (the civil libertarian approach). An added
complication is that the choice of approach itself is inextricably a policy issue, and
a preference for one approach over the other is likely also to influence and be
influenced by what one considers is in the public good or the public interest. This
is exactly what happens in Brown.
Their Lordships are prepared to confirm the basic starting point that assault
requires lack of consent, normally. But what happens next? It is clear that there are
cases where, even if consent is NOT given, no assault takes place. Reasonable
chastisement, emergency surgeryI2 and self-defence are examples, and actual
bodily harm or even worse might well occur in these cases. Lord Lane refers to
these examples in Attorney General’s Reference, but in fact they undermine his
approach rather than help it, as they are immediate exceptions to his general rule.
In those cases where there IS full and free consent to harm, it is clear that under
English law there can be liability, and the question for any court is where and, just
as importantly, how to draw the line. However, a consistent and logical civil
libertarian approach always requiring lack of consent for liability could produce a
different result, and even voluntary euthanasia, for example, could be held lawful.
The requirement of full and free consent, properly proved, would then be of prime
significance.l 3
It would be highly unlikely that the House of Lords would ever take it upon itself
to follow this approach through to its logical conclusion, even though the
flexibility of the full and free consent issue would allow them considerable
discretion. Although their Lordships emphasise the role of Parliament rather than
the judiciary in policy making, and in effect justify their approach partly on that
basis, it is clear that public policy has a major effect on their Lordships’ reasoning
and influences them either towards a paternalistic or a civil libertarian approach.

The Majority Approach

Lords Templeman, Jauncey and, to a lesser extent, Lowry start from the basic
premise that the causing of actual or grievous bodily harm, including wounding,I4

12 The recent case of Re S [1992] 3 WLR 806, where an emergency caesarean was carried out even
though the mother was conscious and refused consent, indicated the complex policy issues involved.
13 This is the approach taken in civil cases, particularly involving refusal of medical treatment, where the
argument might rest on the patient’s ability to understand all the issues properly and make a proper
decision. See eg re W [ 19921 3 WLR 758 and re R [I9911 4 All ER 177. This has been stretched to the
limits, as in re S (see n 12) and in re T, where the mother’s influence on an adult daughter was held to
be significant.
14 The definition of wounding is established by a series of cases (see, for example, Moriary v Brookes
(1834) 6 C&P 684) and constitutes breaking the continuity of the whole skin.

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is p r i m facie unlawful and therefore an offence. They state, however, a series of

exceptions to that general rule, some of which are based on consent. The test is
whether there is any ‘good reason’15 to justify excepting the relevant criminal
behaviour from liability. By considering the policy reasons for these exceptions,
they discuss whether sado-masochistic acts fit within any of the exceptions or can
be an exception themselves by analogy.

The Cases
Their discussion of the prior case law is dismissively brief. In looking at Coney
they conclude from the judgment that it is the injury to the public in terms of
breach of the peace which makes the conduct unlawful. Lord Lane’s arguments in
Attorney General’sReference concerning the importance of the public interest and
his evaluation of that concept are accepted at face value. The obiter dicta
statements in Donovan are treated as the relevant ones, because, according to Lord
Jauncey for example, it is clear that actual bodily harm was caused in that case,
even though it was not charged. Why this is any more relevant than the offences in
Brown which were not charged is not clear. Nevertheless, it is from Donovan that
Lord Jauncey extracts the principle that causing actual bodily harm is p r i m facie
unlawful UNLESS there are good reasons otherwise, and he gives examples,
quoting Swift J’s very wide definition of what constitutes an unlawful act (likely or
intended to do bodily harm). l6 Having drawn such general conclusions from
marginal statements in the case, Lord Jauncey has in fact marginalised the issue of
consent which ought to be central to the question of liability. Consent may or may
not be a factor in those cases where there is good reason for decriminalising
conduct, but it is neither necessary nor sufficient according to Lord Jauncey.
Their Lordships find nothing in the statute referring to consent,” and foresee
practical problems involved in differentiating the types of harm and problems
directing juries on alternative verdicts if the line were drawn between actual bodily
harm and grievous bodily harm. In conclusion, therefore, they find nothing
binding in case or statute to limit their approach, and their approach to policy
becomes the basis of the case.

The Policy
A recurring emphasis in the judgments is on the concept of violence.’* The
unpredictability and dangerousness of the behaviour, in terms of what might
happen, become crucial. Their Lordships are influenced both by what might have
happened specifically in this case (although it did not) and what might happen more
generally in future cases.I9 This seems to take the theory of general deterrence

15 The words of Lord Lane in the Court of Appeal decision ([I9921 2 All ER 552).
16 pp 88g-89b.
17 They do not find the unlawfulness requirement significant in this respect. At least Lord Lane in the
Court of Appeal pays it more attention - not surprisingly in view of his discussion in Gladstone
Williams (1984) 78 Cr App R 276, concerning the elements of the offence.
18 Again, Lord Mustill’s discussion of consent and violence indicates that the definition of this word is
not clear, and no real discussion has ever taken place as to its meaning. Even the Law Commission in
its Consultation Paper No 122 (Legislating the Criminal Code: Offences Against the Person and
General Principles) makes general assumptions as to its meaning. Does an act which is consented to
‘violate’?
19 See pp 82-83.

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beyond accepted bounds. It is clear that they are influenced not just by the
possibility of serious harm or death, but also of HIV infection and AIDS.
Equally influential to their reasoning are doubts as to the reality of the consent in
this case. The youth of the participants, the use of drink and drugs to ‘obtain’
consent, and the perceived difficulty of anyone complaining to the police having
taken part in such acts, combine to make them question the consents as ‘dubious’
or ‘worthless.’ This, however, misses the nature of the appeal, the point of law of
which is based on the premise that consents were full and free. It is not their
Lordships’ role to re-try the facts, The concerns of the majority are clear policy
reasons based on their personal attitudes to such behaviour, and again taking
paternalism to extremes.
Policy is crucial, but so is the approach to the question. ‘I am not prepared to
invent a defence,’ Lord Templeman says.20Would he, if he had taken the opposite
approach, have been prepared to ‘invent’ a crime?2’ In balancing the right to
privacy under Article 8 of the European Convention on Human Rights with
protection of society by the existing law, their Lordships’ attitude is that society
has a right to protect itself against a cult of violence, and such a right takes
precedence over individuals’ freedom of action.
The majority judges, therefore, concentrate on the p r i m facie unlawfulness of
harm-causing, the failure of sado-masochistic acts to fit within or become one of
the exceptions because of their inherent violence, and the rejection for policy
reasons of all ancillary arguments based on the European Convention on Human
Rights or the irrelevance of the 1861 Act in an area of sexual activity where the
Sexual Offences Acts could not be charged.22

The Minority Approach

The dissenters reach their decision by way of two different approaches. Lord
Mustill is prepared to take a wide view of the 1861 statute, beyond looking at the
purpose of the statute and the kind of behaviour it was meant to deal with, and
concluding that the kind of brutality, aggression and violence it is aimed at is far
removed from the acts of the appellants.
In the majority judgments the consent issue becomes ancillary. This is not the
case for Lord Mustill. He is the first of their Lordships to look closely at the
concept of consent. Although one might say that any detailed discussion of consent
is strictly unnecessary because of the agreed fact of consent in these cases, it has
already been noted that at least two of the majority judges appear to express doubts
as to the authenticity of the consents in this particular case and even more generally
in cases involving sado-masochistic acts. The questions of what does constitute
full, free and informed consent, and what is being consented to, are thus of prime
importance. The whole question, too, of how much importance we ascribe to such
consents, in terms of whether they generally exculpate or only in limited
circumstances, is an issue which cannot be properly decided without a full
understanding of the concept of consent. Lord Mustill’s discussion of express and
implied consents, and consenting to the risk of harm as opposed to the certainty of
20 [I9931 2 All ER 75, 83.
21 Something which their Lordships have been prepared to do, in one sense. See, for example, R (19911 3
WLR 767. For commentary, see Giles, ‘Judicial Law-making in the Criminal Courts: The Case of
Marital Rape’ [1992] CLR 407.
22 Because of the time limit. See Sexual Offences Act 1967, s 7 .

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harm, does highlight the complexity of the issue, even though it offers no final
solution for him. He could have gone further and used full and free consent as the
basis for drawing the line between lawful and unlawful behaviour, but he chose not
to do so.
Although common sense, according to Lord Mustill, dictates that there must
come a point where the harm is so severe that consent is i r r e l e ~ a n tthere
, ~ ~ is no
decided case at a higher level from which he draws help. He notes, as Lord Lowry
for example does not, the excessive complication of using public interest to annul
the defence of consent because of the harm, and then using it again to ‘re-create’ it
in some cases.24He does not at this stage overtly acknowledge this disagreement
concerning emphasis as the crux of the difference between the majority and
minority, but he does go on to say:
I cannot accept that the infliction of bodily harm, and especially the private infliction of it, is invariably
criminal absent some special factor which decrees otherwise. I prefer to address each individual
category of consensual violence in the light of the situation as a whole.*s
In ensuring a proper balance between the special interests of the individual and the
general interests of the public at large, he emphasises what was only implicit
earlier in his judgment - that the way the question is asked is crucial to the
answer:
I ask myself, not whether as a result of the decision in this appeal activities such as those of the
appellants should cease to be criminal, but rather whether the 1861 Act . . . should in this new situation
be interpreted so as to make it criminaLZ6
This, he points out, in effect amounts to making a new crime.*’ The only possible
public policy reasons which might argue in favour of doing this are the very same
arguments used by the majority in their justification of, as they see it, refusing to
‘de-criminalise’ the acts, namely the physical risks and corruption of the young.
None of these in his opinion are weighty enough to justify criminalising otherwise
lawful conduct. If Parliament thinks that they are, then it is Parliament’s role to
legislate. Although, therefore, Lord Mustill does not follow through the civil
liberties argument to its full conclusion, his approach is libertarian in its origins,
and that very approach enables him to look at exactly the same factors as the
majority judges and yet reach a different conclusion.
Lord Slynn’s judgment is rather more traditional and narrower than that of Lord
Mustill. He draws the line between grievious bodily harm on the one hand and
lesser harms on the other. Because this case concerns actual bodily harm only, the
consent is effective and, on his interpretation of the statute, there is no need to
decide the privacy issue or to rule on the law of freedom of expression. The
narrowness of his approach renders it less useful in providing a basis for drawing a
general principle to be used in deciding which harms are lawfully caused and
which not.

23 This is a rather more difficult issue than Lord Mustill indicates. The ultimate harm, death, may not at
present be legally consented to, although in practice the consensual causing of death by an omission to
act, particularly by medical staff, is accepted. Even consensual euthanasia by a positive act is not
morally reprehensible as a matter of ‘common sense’ to everyone, as reaction to the recent case
involving Dr Nigel Cox’s conviction for attempted murder indicates.
24 S e e p 113d-e.
25 At p 113e.
26 At p 116g (emphasis added).
27 See n 18.

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Lord Lowry’s Approach

The judgment of Lord Lowry is rather different in approach from either the other
majority judgments or the minority, and it is this judgment which tips the balance
in favour of the Crown.
Lord Lowry’s analysis of the prior case law is much more thorough than that of
the other majority judgments. He points out that in Donovan the defendant was not
charged with causing actual bodily harm. However, it is this decision which is
taken to overrule the judgment of Stephen J in Coney which required maim (threat
to life or limb) before consent became immaterial, and it is this decision on which
Lord Lane bases his judgment in Attorney General’s Reference, which in turn is
the basis for his decision in Brown in the Court of Appeal.
Despite its weak basis, Lord Lowry relies on Attorney General’s Reference, as
do Lords Templeman and Jauncey, but Lord Lowry’s approach, by the very fact of
its more detailed case analysis, emphasises the various stages of the argument and
highlights the point where the argument could go either way, in favour of either a
rebuttable presumption of lawfulness or unlawfulness. Initially, he reaches a
conclusion that an assault is prima facie lawful if consented to UNLESS there are
public policy reasons for criminalising it. Although he refers only to assault and
not to causing actual bodily harm, he is discussing, just as was Lord Lane, the
section 47 offence in Attorney General’s Reference, which has assault as a
constituent element. Unfortunately, he then follows and compounds Lord Lane’s
conclusion that the very fact of causing actual bodily harm is itself a public policy
reason for criminalising the conduct UNLESS there is ‘good reason’ for not doing
so - thus accepting the extra layer to the ‘rule and exceptions’ analysis suggested
by Lord Lane. If Lord Lowry, instead of adopting an approach which he himself
admits has no basis in prior case law, had taken the simpler and more logical
approach that the act or even the ‘assault’28is lawful because of the consent unless
there are policy reasons otherwise, then the balance would have shifted and the
case could easily have gone the other way.
If he had treated these acts as prima facie lawful because fully and freely
consented to and asked whether they should, for policy reasons, be criminalised
because they are not conducive to the enjoyment of family life and the welfare of
society, or because of the inherent dangerousness of the acts, then he may well
have placed greater emphasis on the appellants’ counter-policy arguments
concerning unwarranted interference with the private lives and activities of
persons indulging in a lawful pursuit and doing no harm to anyone else,29 and
allowed his decision to swing the other way.
Because he does adopt the extra layer - the assault is prima facie lawful because
consented to, BUT there is a good reason for criminalising it (the actual bodily
harm) UNLESS there is a good reason for ‘decriminalising’it again - the burden
shifts. When considered in the context of looking for a good reason to DEcriminalise,
the general policy arguments he considers important are now in favour of the status
quo rather than any change. Given that sado-masochistic acts do not fit within any
existing categories of exceptions, the decision becomes easy. Although his choice
of approach is not so overtly influenced by his horror at the appellants’ acts and the

28 Following through the logic of his point concerning theprimfacie lawfulness of the assault which is
consented to, one could argue that the line between lawful and unlawful behaviour should be drawn
between s 47 and s 20, as the former requires an assault within the language of the Act, but the latter
does not.
29 See p 100c-f.

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inherent dangers as was the case with the other majority judges, the general
argument that Parliament is the means for effecting changes in social policy has
become an argument for the respondent’s case and against the appellants.

A General Principle?
Do the majority judgments provide us with the basis for a general principle which
can be drawn from them and applied to those problem areas involving the
consensual causing of harm? The confusion concerning the concepts of public
policy and ‘good reason,’ and the insistence on Parliament’s role rather than the
judiciary as policy makers, indicate not.
Logic seems missing in the overall line of reasoning. Given that the majority
approach is that causing harm is prima facie unlawful, the arguments should
concentrate on whether the particular behaviour was an exception to the
unlawfulness rule, by looking at the possible ‘good reasons’ for decriminalising
which might have applied to the fact situation in question. It is strange logic to
concentrate on the reasons why the behaviour concerned is UNlawful, when that
is, according to their Lordships, already established by the general rule. This is
what the prior cases do, however, and so therefore do their Lordships in discussing
them. This is confusing and undermines the majority reasoning, revealing it as
unsound. No wonder they find the cases of little help. The more detailed the study
of the prior case law, the more obvious the illogicality will be. It is therefore most
evident in Lord Lowry’s speech, necessitating his change of approach midway
through his judgment and the addition of a further layer of exceptions as discussed
above.

Conclusion
We therefore have a variety of approaches leading to a bare majority in favour of
the Crown, with both majority and minority having the same opinion in one sense;
major policy changes are for Parliament not for the Courts. Depending on the
starting point, this argument is used either to justify a decision not to decriminalise
an already criminal act or a decision not to criminalise an already lawful act.
The minority approach emphasises consent as an element which legitimises the
harm-doing. The majority marginalise consent; it becomes one possible relevant
element within policy reasons for creating exceptions to the rule that causing actual
bodily harm is unlawful. The practicality of paternalism triumphs over the theory
of individual freedom.
What should the rule be? Should it be complete freedom to act consensually, a
liability for all harms, minor or not, consensual or not, or some compromise?
Modem society for the moment seems to demand a compromise. It is the nature of
this compromise which has been asked of their Lordships and, by their failure to
grasp the issue openly, they have produced no clear rule. They have necessitated a
complicated and detailed consideration of policy arguments in each individual
case, while at the same time denying their policy-making role. By so doing they
have hidden their considerable influence on such policy decisions on a case-by-
case basis, and failed to acknowledge freely or discuss openly the very obvious
policy assumptions which underlie the decision-making process in such cases. This
is judicial law-making at its worst and most confused - unchallengeable because
110 0 The Modern Law Review Limited 1994
January 19941 Liability for References

unacknowledged. Paternalism triumphs, and it is the paternalism of an unelected,

unrepresentative group who use but fail to openly acknowledge that power.

Liability for References: Spring v Guardian Assurance

Thomas Allen *
If A suffers economic harm as a result of a statement communicated by B to C, A
might consider bringing an action against B in defamation. But can A bring an
action in negligent misstatement against B? A generous reading of Donoghue v
Stevenson suggests that A could do so, but recent cases on pure economic loss
suggest that a modern court would be reluctant to allow an action in negligent
misstatement. Recently, in Spring v Guardian Assurance,’ the Court of Appeal
continued the modern trend and unanimously decided that a referee does not owe a
duty of care to the subject of the reference for economic harm resulting from
inaccuracies in the reference. Unfortunately, the judgment of the Court, delivered
by Glidewell W,does not fully explore the relevant duty of care issues, especially
those regarding policy and the public interest.

The Facts, the Decision and the Issues

The plaintiff had been a representative for Guardian Royal Exchange Assurance
(GRE), an insurance company. GRE dismissed him when it discovered he was
planning to join a competitor. The plaintiff then applied to become a representative
of Scottish Amicable, another insurance company. Both Scottish Amicable and
GRE were members of the Life Assurance and Unit Trust Regulatory Organisation
(LAUTRO). Under LAUTRO’s Code of Conduct, Scottish Amicable was required
to request a reference from GRE before the plaintiff could be appointed. The Code
of Conduct also required GRE to provide the reference requested by Scottish
Amicable. The reference stated that the plaintiff was ‘a man of little or no integrity
and could not be regarded as honest.’ It also stated that he ignored the concept of
‘best advice’ and sold policies which would bring him the highest commissions. As
put by Judge Lever QC at trial, the reference was ‘so strikingly bad as to amount to
. . . “the kiss of death” to his career in insurance.’* Upon receiving the
reference, Scottish Amicable refused to appoint the plaintiff, as did several other
insurance companies to which he subsequently applied. There was some dispute
over the accuracy of the reference, but Judge Lever found that the plaintiff had
only been guilty of inexperience and incompetence, and not dishonesty or a lack of
integrity.
The plaintiff sued GRE, primarily to recover the earnings he claimed were lost
as a result of the mistaken allegations of dishonesty and a lack of integrity. The
action was framed in malicious falsehood, breach of contract and negligent

*University of Newcastle upon Tyne.

The author would like to thank Bruce Anderson for his valuable comments on earlier drafts.
1 119931 2 All ER 273, 119931 IRLR 122.
2 119921 IRLR 173, 177.

0 The Modern Law Review Limited 1994 111