R v Brown [1994] 1 AC 212 (HL)

Facts

• A group of adult men engaged in consensual sado-masochistic sexual activities, resulting in actual bodily harm (ABH) and grievous bodily harm (GBH).
• The injuries caused went beyond minor physical contact, including wounding and more serious harm.
• The men were prosecuted under sections 20 and 47 of the Offences Against the Person Act 1861.
• The activities were consensual, performed in private, and all participants voluntarily engaged.
• The prosecution argued intentional infliction of harm, regardless of the victims’ consent.

Issues

1. Whether consent can be a defense to charges of assault occasioning actual bodily harm or inflicting grievous bodily harm under sections 20 and 47 of the Offences Against the Person Act 1861.
2. To what extent personal autonomy permits consensual infliction of bodily harm within private activities.
3. Whether public policy and the protection of health and morality limit the defense of consent to certain exceptions.

Decision

• The House of Lords dismissed the appeal, holding that consent is not a defense to ABH, GBH, or wounding under sections 20 and 47 OAPA 1861.
• The majority ruled that violence intentionally inflicted for sado-masochistic purposes is unlawful, even if consensual.
• The court distinguished exceptions for activities with recognized benefit or social utility, such as sports, surgery, or tattooing.
• The judgment emphasized protection of public health and morality over personal autonomy.
• Dissenting judges argued that criminal law should not interfere with private, consensual morality and questioned whether the legislature, not courts, should decide such policy issues.

Legal Principles

• Consent is not a defense to the intentional infliction of actual or grievous bodily harm, except in limited, socially accepted contexts.
• Lawful exceptions include recognized beneficial or socially useful activities, such as sports, medical procedures, and some body modifications.
• Public policy, including concerns about health risks and morality, can restrict private autonomy in the context of violent acts.
• Dissenting views stressed the importance of non-interference by the state in private consensual conduct and suggested such matters are for legislative determination.
• Subsequent cases have applied Brown narrowly, reaffirming that new exceptions should align with existing categories.

Conclusion

R v Brown establishes that consent does not excuse intentionally inflicted actual or grievous bodily harm under OAPA 1861 unless the conduct falls within recognized lawful exceptions. The case highlights the primacy of public policy in restricting the defense of consent, balancing individual autonomy against societal interests. Despite prominent dissents, the majority’s reasoning continues to influence English criminal law on the limits of consent in harmful acts.