Brown, Laskey, Jaggard, Lucas, Carter, Cadman 21 February 1992 Times Law Reports Court of Appeal (Spanner)

My interest in publishing these, is not the case per se but in what the police were doing investigating it in the first place, any child sexual abuse claimed on the outskirts of the case and the legal judgement about consent not being a defence.

Index of Newspaper and Journal articles on this blog [1]

Index of Court Appeals on this blog [2]

21 February 1992 Times Law Reports
Court of Appeal

  • Regina v Brown (Anthony)
  • Regina v Laskey (Colin)
  • Regina v Jaggard
  • Regina v Lucas (Saxon)
  • Regina v Carter
  • Regina v Cadman

Before Lord Lane, Lord Chief Justice, Mr Justice Rose and Mr Justice Potts


Crime – assault – sado-masochism – consent no defence

Consent no defence to sado-masochistic assault
Willing and enthusiastic participation in sado-masochistic acts of violence against each other by a group of homosexuals for the sexual pleasure it engendered in the giving and receiving of pain provided no defence to charges of assault and wounding under the Offences against the Person Act 1861.

The Court of Appeal so held in a reserved judgment dismissing appeals against conviction by five men on pleas of guilty following re-arraignment on November 7, 1990 after a ruling at the Central Criminal Court by Judge Rant, QC, that, in the particular circumstances, it was unnecessary for the prosecution to prove that the victim did not consent to the infliction of bodily harm or wounding on him.

The appeals were also against sentences passed totalling on Brown of two years nine months, reduced on appeal to three months; on Laskey of four and a half years reduced on appeal to two years; on Jaggard of three years, reduced on appeal to six months; on Lucas of three years reduced to six months; and on Cadman, who appealed only against sentence of four and a half years, reduced to three years.

The court certified that a point of law of general public importance was involved, namely: “When 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 it can establish A’s guilt under section 20 or section 47 of the Offences against the Person Act 1861?” Leave to appeal to the House of Lords was granted.

Mr Lawrence Kershen for Brown; Miss Anna Worrall, QC and Mr Gibson Grenfell for Laskey; Lady Mallalieu, QC and Mr Adrian Fulford for Jaggard; Mr Adrian Fulford for Lucas; Mr Jonathan Lurie for Carter; Mr Russell Davies for Cadman; all assigned by the Registrar of Criminal Appeals; Mr Michael Worsley, QC and Mr David Spens for the Crown.

THE LORD CHIEF JUSTICE , giving the judgment of the court, said that the basis of the appeals against conviction was the contention that the judge was wrong in ruling as he did.

The appellants belonged to a group of sado-masochistic homosexuals who willingly and enthusiastically participated in the commission of acts of violence against each other for the sexual pleasure which it engendered in the giving and receiving of pain. Some who had been convicted had not appealed.

The activities took place at a number of different locations including rooms equipped as torture chambers at the homes of co-defendants Ian Wilkinson and Peter John Grindley, who had abandoned their appeals, and the appellant Cadman. Video cameras were used to record the activities and the resulting tapes were then copied and distributed among members of the group.

The prosecution case was based largely on the contents of the video tapes. There was no suggestion that the tapes had been sold or used other than for the delectation of members of the group. The group activities extended over a 10-year period from 1978.

His Lordship reviewed details of some 19 counts. Included among them was count 7, involving Laskey. It charged assault occasioning actual bodily harm. Stinging nettles were applied around the genital area and buttocks of the victim. He was hit with a cat of nine tails and the inside of his thighs was caned.

Count 17 alleged unlawful wounding against Lucas and Jaggard. A co-defendant named Atkinson had his penis nailed to a bench; he was caned, hit and rubbed with a spiked strap, then cut with a scalpel by Lucas. There were five lateral cuts together with further cuts to the victim’s scrotum and there was a free flow of blood.

It was common ground that all the actions to which the appellants pleaded guilty were done with the consent of the passive partner or victim.

There was no permanent injury; no infection of the wounds; no evidence of any medical attention being sought. There was no complaint to the police. The facts came to light by chance during investigation of other matters. The actions were carried out in private. There was no profit motive and no sale of the video tapes.

It was submitted that there could be no assault unless the prosecution proved that there was a “hostile” act by the defendant. That submission was based on dicta in  Fairclough v Whipp  ([1951] 2 All ER 834), where it was held that an invitation to a child to commit an indecent act, even if the invitation was accepted was not an assault, indecent or otherwise.

His Lordship said that, if hostile meant aggressive or intentional, then that definition was satisfied in the instant case. If it meant without the consent of the other party, then it added nothing to the arguments about consent which were at the heart of the appeal.

At the lowest, the intention in the present case to inflict pain and suffering was in the circumstances a sufficient degree of hostility to constitute an assault, subject to the question of consent.

Another submission was that it was inappropriate to lay charges under the 1861 Act which, it was said, was not intended to apply to consensual actions in private not causing serious injury, particularly where such actions were merely incidents of private sexual behaviour.

His Lordship said that if the events had been merely incidents in the course of private activities, whether homo- or heterosexual, then doubtless different considerations would have been applied.

Where, however, as in this case, there had admittedly been inflicted either wounding or actual bodily harm, it was in their Lordships’ judgment both permissible and correct to lay charges under the 1861 Act.

References had been made to Report of the Committee on Homosexual Offences and Prostitution, the Wolfenden Report ((1957) Cmnd 247) and to the decision of the European Court of Human Rights in  Dudgeon v United Kingdom ((1982) 4 EHRR 149), but they did not seem to be relevant, as they did not apply when wounds or actual bodily harm were actually suffered.

The real nub of the appeal was the contention that the consent of the victim in the circumstances prevented the prosecution from proving an essential element of the offences, whether charged under section 20 or section 47 of the 1861 Act.

Section 47 provided for liability to imprisonment for five years for conviction on indictment of any assault occasioning actual bodily harm. Such harm was defined in  R v Miller  ([1954] 2 QB 282, 292) as any hurt or injury calculated to interfere with health or comfort.

Section 20 provided “Whosoever shall unlawfully and maliciously by any means whatsoever wound or inflict any grievous bodily harm upon any other person, either with or without any weapon or instrument shall be liable … to imprisonment … for not more than five years.”

By their pleas to various counts, therefore, Laskey, Jaggard and Lucas, so far as the section 20 allegations were concerned, admitted that they had wounded the victim and, so far as section 47 was concerned, all the appellants admitted to having caused hurt or injury calculated to interfere with the health or comfort of the other party.

Generally speaking, for the prosecution to bring home a charge of assault, they had to prove that the victim did not consent to the defendant’s actions, an assault being any unlawful touching of another without that other’s consent.

In certain circumstances the law did not permit a defendant to rely, so to speak, on the victim’s consent. Consent to being killed would provide no excuse for the killer. Where the assault involved permanent injury or maiming, for example, severing of a limb, there was no dispute that the victim’s consent was immaterial.

It was contended that the same considerations did not apply where there was no permanent injury, even though the assault might have amounted to grievous bodily harm or wounding.

His Lordship reviewed the classic authority  R v Coney  ((1882) 8 QBD 534), the prize fight case,  R v Donovan  ([1934] 2 KB 498), in which the reasoning of the court seemed to have been tautologous, as was pointed out in  Attorney General’s Reference (No 6 of 1980)  ([1981] QB 715), referred to Kenny’s Outlines of Criminal Law (19th edition (1966) p209) and Archbold, Criminal Pleading, Evidence and Practice (43rd edition (1988) paragraph 20/124).

That brought their Lordships to the  Reference , where two youths met in a public street and decided to fight each other, as a result one sustained a bleeding nose and bruising to his face. The other was charged with assault occasioning actual bodily harm and was acquitted by the jury.

The question posed by the Attorney General to the court was “Whether, where two persons fight (otherwise than in the course of sport) in a public place, can it be a defence for one of those persons to a charge of assault arising out of the fight that the other consented to fight?”

The court’s answer was that it was 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 were another matter. So, it was immaterial whether the act occurred in private or in public. It was an assault if actual bodily harm was intended and/or caused. That meant that most fights would be unlawful regardless of consent.

What might be good reason was unnecessary for their Lordships to decide. It was sufficient to say, so far as the instant case was concerned, that they agreed with the trial judge that the satisfying of sado-masochistic libido did not come within the category of good reason nor could the injuries be described as merely transient or trifling.

In their Lordships’ judgment, the principle as expressed in the Reference  did apply to the instant case.

Consequently, for those reasons the question of consent was immaterial. The judge’s ruling was correct.

Any attempt to distinguish between offences coming within section 18 of the 1861 Act and those coming within section 20 or 47 would, it seemed, be almost impossible to draw. Many of the section 47 charges could equally well have been laid under section 20 and the only distincition between section 20 and section 18 was the intent of the defendant and not the degree of violence.

For those reasons the several appeals against conviction were dismissed.

As to sentences: their Lordships took the view that the function of the court was to mark its disapproval of those activities by imposing short terms of immediate imprisonment. They were prepared to accept that the appellants did not appreciate that their actions in inflicting injuries were criminal and that the sentences upon them therefore should be comparatively lenient.

In future, however, that argument would not be open to a defendant in circumstances such as those obtaining in the instant case.

Solicitors: CPS, Central Courts.

21/02/1992 Times Law Reports

Index of Newspaper and Journal articles on this blog [1]

Index of Court Appeals on this blog [2]

1989 Oct 10 Glasgow Herald Fifteen charged after Operation Spanner [3]

1992 Feb 21 Times Law Reports  Brown, Laskey, Jaggard, Lucas, Carter, Cadman – Court of Appeal (Spanner) [6]

1993 Mar 12 Times Law Reports Brown, Lucas, Jaggard, Laskey, Carter – House of Lords (Spanner) [7]

1997 Feb 20 Times Law Report Laskey, Jaggard and Brown v UK ECHR (Operation Spanner) [4]

1997 Times Law Report Laskey, Jaggard and Brown v UK – EHCR (Spanner) [5]

all related to this post  2017 Mar 24 Cathy Fox Blog 2000 Apr 6  Michael Hames The Dirty Squad   [8]

Please note that victims of abuse may be triggered by reading this information. These links are generally UK based.

  • The Sanctuary for the Abused [A] has advice on how to prevent triggers.
  • National Association for People Abused in Childhood [B] has a freephone helpline and has links to local support groups.
  • One in Four [C]
  • Havoca [D].
  • Useful post on Triggers [E]  from SurvivorsJustice [F] blog.
  • Jim Hoppers pages on Mindfulness [G]  and Meditation [H] may be useful.
  • Hwaairfan blog An Indigenous Australian Approach to Healing Trauma  [J]
  • Survivors UK for victims and survivors of male rape or the sexual abuse of men [K]
  • Voicing CSA group [L] helps arrange survivors meetings in your area
  • A Prescription for me blog Various emotional support links [M]
  • ShatterBoys -“Male Survivors Of Childhood Sexual Abuse Inspiring change, Through Shared Experience Whilst Building Connections…Together We Can Heal” [N]

Links

[1] Index of Newspaper and Journal articles on this blog https://cathyfox.wordpress.com/2015/05/23/newspaper-stories-index-timeline/

[2] Index of Court Appeals EWCA on this blog https://cathyfox.wordpress.com/2015/05/08/a-timeline-of-court-and-ewca-documentation-on-cathy-fox-blog/

[3]  2017 Mar 25 Cathy Fox Blog 1989 Oct 10 Glasgow Herald Fifteen charged after Operation Spanner https://cathyfox.wordpress.com/2017/03/25/glasgow-herald-10-oct-1989-fifteen-charged-after-operation-spanner/

[4] 2017 Mar 24 Cathy Fox Blog Laskey, Jaggard and Brown v UK ECHR Times Law Report 1997 Feb 20 (Operation Spanner) https://cathyfox.wordpress.com/2017/03/24/laskey-jaggard-and-brown-v-uk-echr-times-law-report-operation-spanner/

[5] 2017 Mar 24 Cathy Fox Blog Laskey, Jaggard and Brown v UK – Times Law Report 1997 EHCR (Spanner) https://cathyfox.wordpress.com/2017/03/25/laskey-jaggard-and-brown-v-uk-times-law-report-1997-ehcr-spanner/

[6] 2017 Mar 24 Cathy Fox Blog Brown, Laskey, Jaggard, Lucas, Carter, Cadman 21 February 1992 Times Law Reports Court of Appeal (Spanner) https://cathyfox.wordpress.com/2017/03/25/brown-laskey-jaggard-lucas-carter-cadman-21-february-1992-times-law-reports-court-of-appeal-spanner/

[7] 2017 Mar 24 Cathy Fox Blog Brown, Lucas, Jaggard, Laskey, Carter 12 March 1993 Times Law Reports House of Lords (Spanner) https://cathyfox.wordpress.com/2017/03/25/brown-lucas-jaggard-laskey-carter-12-march-1993-times-law-reports-house-of-lords/

[8] 2017 Mar 24 Cathy Fox Blog 2000 Apr 6  Michael Hames The Dirty Squad   https://www.amazon.co.uk/d/cka/Dirty-Squad-Michael-Hames/0316853216/ref=sr_1_3?ie=UTF8&qid=1490120494&sr=8-3&keywords=Michael+hames

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10 Responses to Brown, Laskey, Jaggard, Lucas, Carter, Cadman 21 February 1992 Times Law Reports Court of Appeal (Spanner)

  1. Pingback: Index / Timeline Newspaper clippings posted by Cathy Fox Blog | cathy fox blog on child abuse

  2. Pingback: Glasgow Herald 10 Oct 1989 Fifteen charged after Operation Spanner | cathy fox blog on child abuse

  3. Pingback: Brown, Lucas, Jaggard, Laskey, Carter 12 March 1993 Times Law Reports House of Lords (Spanner) | cathy fox blog on child abuse

  4. Pingback: Laskey, Jaggard and Brown v UK – Times Law Report 1997 EHCR (Spanner) | cathy fox blog on child abuse

  5. Pingback: Michael Hames Dirty Squad Operation Spanner | cathy fox blog on child abuse

  6. Pingback: Laskey, Jaggard and Brown v UK ECHR Times Law Report 1997 Feb 20 (Operation Spanner) | cathy fox blog on child abuse

  7. grimstock says:

    Very confusing and a twisting of previous interpretations of various relevant laws in order to secure convictions , – which only came about by the use of the admittances in each case that there had been activity between consenting adults. The tattooist for instance, had apparently committed some serious criminal acts that were perfectly lawful in the normal conduct of his profession. There are also some big errors made by the twisting of the interpretations, that could indicate (as in the case of boxing) that what is considered lawful, actually is not; and that a surgeon, or anyone who causes pain could be committing a serious criminal offence without realising it. What about euthanasia, for instance when it is carried out “without good reason” – who decides what is and what isn’t?
    What is indecent? Where is the line drawn? What may be considered obscene or indecent to someone; perhaps someone who may have led a very sheltered life; may not be so to another more worldly, more experienced human being, who may simply regard that same “obscenity” as merely distasteful?
    Perhaps we should look to the fact that someone who had been assigned by the Church of England General Synod who had raided, arrested, and charged the men.
    A strange coincidence that the arrests were made the same year as the Higton general Synod motion, whish was passed by 403 to 8 votes; and states,

    ‘That this Synod affirms that the biblical and traditional teaching on chastity and fidelity in personal relationships in a response to, and expression of, God’s love for each one of us, and in particular affirms:
    that sexual intercourse is an act of total commitment which belongs properly within a permanent married relationship;
    that fornication and adultery are sins against this ideal, and are to be met by a call to repentance and the exercise of compassion;
    that homosexual genital acts also fall short of this ideal, and are likewise to be met by a call to repentance and the exercise of compassion;
    that all Christians are called to be exemplary in all spheres of morality, including sexual morality; and that holiness of life is particularly required of Christian leaders.’

    However, all this beggars the question, where is the love and compassion?
    Sadly lacking I am afraid!

  8. grimstock says:

    These problems of conflicting interpretations of various laws in order to secure convictions resulted in the suffix ” for sexual gratification” being used in order to differentiate those practices which were considered obscene and indecent from identical acts which remained perfectly legal.
    Therefore, for instance, if a surgeon or dentist is carrying out a procedure, and they, or the patient becomes sexually aroused, then they have both committed a serious criminal offence.

  9. grimstock says:

    It is not those who wish to dip their toes into the realms of extreme human experience and suffering without harm to others that threaten the blossoming of compassion and understanding amongst humanity; but rather those who wish to limit and impose their own narrow boundaries upon others; that pose the real threat to human evolution, godliness, and infinite love of all things.
    Thus religion prevents spirituality. Their idol would have been given some serious time for being nailed to a cross. Who knows if he was sexually aroused at the time? and who’s business is it if he was or wasn’t ? How did sexual arousal come to be a criminal offence?

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