Brown, Lucas, Jaggard, Laskey, Carter 12 March 1993 Times Law Reports House of Lords (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]

12 March 1993 Times Law Reports

House of Lords

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

Before Lord Templeman, Lord Jauncey of Tullichettle, Lord Lowry, Lord Mustill and Lord Slynn of Hadley

Crime – assault – sado-masochism – consent no defence

Consent is no defence to sado-masochistic assault
The consent of the willing recipient of sado-masochistic acts of violence did not constitute a defence to charges of assault occasioning actual bodily harm contrary to section 47 of the Offences against the Person Act 1861 and of wounding contrary to section 20 of the Act.

The House of Lords so held, Lord Mustill and Lord Slynn dissenting, in dismissing appeals by five men from a dismissal by the Court of Appeal (Lord Lane, Lord Chief Justice, Mr Justice Rose and Mr Justice Potts) (The Times February 21, 1992) of their appeals against conviction on pleas of guilty following a ruling by Judge Rant, QC, at the Central Criminal Court on November 7, 1990.

The House answered in the negative the question certified by the Court of Appeal: “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 and section 47 of the Offences against the Person Act 1861?”

Mr Lawrence Kershaw, QC, Mrs Pauline Hendy and Miss Eleanor Sharpston for Brown; Lady Mallalieu, QC, Mr Adrian Fulford and Miss Eleanor Sharpston for Lucas and Jaggard; Miss Anna Worrall, QC, Mr Gibson Grenfell and Miss Eleanor Sharpston for Laskey; Mr Ronald Thwaites, QC, Mr Jonathan Lurie and Miss Eleanor Sharpston for Carter; Mr Nicholas Purnell, QC and Mr David Spens for the Crown.

LORD TEMPLEMAN said that the authorities dealing with the intentional infliction of bodily harm did not establish that consent was a defence to a charge under the 1861 Act. They established that the courts had accepted that consent was a defence to the infliction of bodily harm in the course of some lawful activities.

The question was whether the defence should be extended to the infliction of bodily harm in the course of sado-masochistic encounters.

Counsel for the appellants argued that consent should provide a defence because every person had a right to deal with his body as he pleased. That did not provide a sufficient guide to the policy decision which now had to be made. It was an offence for a person to abuse his own body by taking drugs.

In any events the appellants did not mutilate their own bodies. They inflicted bodily harm on willing victims. Suicide was no longer an offence but a person who assisted another to commit suicide was guilty of murder or manslaughter.

There was no evidence to support the assertion that sado-masochistic activities were essential to the happiness of the appellants or any other


participants but the argument would be acceptable if sado-masochism were only concerned with sex, as the appellants contended. In his Lordship’s opinion, it was not only concerned with sex it was also concerned with violence.

The evidence disclosed that the practices of the appellants were unpredictably dangerous and degrading to body and mind and were developed with increasing barbarity and taught to persons whose consents were dubious or worthless.

Drink and drugs were employed to obtain consent and increase enthusiasm. The victim was usually manacled so that the sadist could enjoy the thrill of power and the victim could enjoy the thrill of helplessness. The victim had no control over the harm which the sadist, also stimulated by drink and drugs might inflict. In one case a victim was branded twice on the thigh and there was some doubt as to whether he consented to or protested against the second branding.

The dangers involved in administering violence must have been appreciated by the appellants because, so it was said, each victim was given a code word which he could pronounce when excessive harm or pain was caused. The efficiency of that precaution, when taken, depended on the circumstances and the personalities involved. No one could feel the pain of another.

The charges against the appellants were based on genital torture and violence to the buttocks, anus, penis, testicles and nipples.

The victims were degraded and humiliated, sometimes beaten, sometimes wounded with instruments and sometimes branded. Bloodletting and the smearing of human blood produced excitement. There were obvious dangers of serious personal injury and blood infection.

Prosecuting counsel informed the trial judge against the protests of defence counsel that although the appellants had not contracted AIDS, two other members of the group had died from AIDS and one other had contracted an HIV infection although not necessarily from the practices of the group.

Some activities involved excrement. The assertion that the instruments employed by the sadists were clean and sterilised could not have removed the danger of infection and the assertion that care was taken demonstrated the possibility of infection. Cruelty to human beings was on occasions supplemented by cruelty to animals in the form of bestiality.

It was fortunate that there were no permanent injuries to a victim although no one knew the extent of harm inflicted in other cases.

It was not surprising that a victim did not complain to the police when the complaint would involve him in giving details of acts in which he had participated. Doctors of course were subject of a code of confidentiality.

In principle there was a difference between violence which was incidental and violence which was inflicted in the indulgence of cruelty. The violence of sado-masochistic encounters involved the indulgence of cruelty by sadists and the degradation of victims.

Such violence was injurious to the participants and unpredictably dangerous. His Lordship was not prepared to invent a defence of consent for sado-masochistic encounters which bred and glorified cruelty and resulted in offences under sections 47 and 20 of the 1861 Act.

Counsel had submitted that since gross indecency charges were time barred the police acted unfairly when they charged the appellants with offences


under the 1861 Act. But there was no reason for the police to refrain from pursuing the charges under the 1861 Act merely because other charges could not be pursued.

Indecency charges were connected with sex. Charges under the 1861 Act were concerned with violence. The violence of sadists and the degradations of the victims had sexual motives but sex was no excuse for violence.

His Lordship rejected the argument that the activities of the appellants were exercises of rights in respect of private and family life as protected by article 8 of the European Convention on Human Rights or that article 7 was of any relevance. Article 8 did not invalidate a law which forbade violence which was intentionally harmful to body and mind.

Society was entitled and bound to protect itself against a cult of violence. Pleasure derived from the infliction of pain was an evil thing. Cruelty was uncivilised.

LORD JAUNCEY , agreeing, said that although the reasoning in  R v Donovan ([1934] 2 KB 498) and  Attorney General’s Reference  (No 6 of 1980) ([1981] QB 715) differed, the conclusion from each of them was clear: that the infliction of bodily harm without good reason was unlawful and that the consent of the victim was irrelevant.

 Wilson v Pringle  ([1987] QB 237) showed that if the appellants’ activities in relation to the victims were unlawful they were also hostile and the necessary ingredient of assault was present.

A line had to be drawn somewhere between those injuries which a person could consent to have inflicted upon himself and those which were so serious that consent was immaterial.

In his Lordship’s view, that line properly fell to be drawn between assault at common law and the offence of assault occasioning actual bodily harm created by section 47 of the 1861 Act with the result that the consent of the victim was no answer to anyone charged with the latter offence or with contravention of section 20 unless the circumstances fell within one of the known exceptions such as organised sport, parental chastisement or reasonable surgery.

There was nothing in either section 20 or 47 to suggest that consent was either an essential ingredient of the offence of a defence thereto.

In considering the public interest it would be wrong to look only at the activities of the appellants alone. The House had to consider the possibility that homosexual sado-masochistic activities were practised by others who might not be so controlled and responsible as the appellants were claimed to be.

Wounds could easily become septic, the free flow of blood from a person who was HIV positive or had AIDS could infect another and an inflicter who was carried away by sexual excitement or by drink or drugs could very easily inflict pain and injury beyond the level to which the receiver had consented.

Furthermore, the possibility of proselytisation and corruption of young men was a real danger even in the case of the appellants and the taking of video recordings of such activities suggested that secrecy might not have been as strict as the appellants claimed.

His Lordship had no doubt that it would not be in the public interest that deliberate infliction of actual bodily harm during the course of homosexual


sado-masochistic activities should be held to be lawful.

When Parliament passed the Sexual Offences Act 1967 which made buggery and acts of gross indecency between consenting males lawful it had available the Wolfenden Report (1957) (Cmnd 247) which was the product of an exhaustive research into the problem.

If it was to be decided that such activities as the nailing by A of B’s foreskin or scrotum to a board or the insertion of hot wax into C’s urethra followed by the burning of his penis with a candle or the incising of D’s scrotum with a scalpel to the effusion of blood were injurious to neither B, C and D nor to the public interest, it was for Parliament with its accumulated wisdom and sources of information to declare them lawful.

LORD LOWRY , agreeing, said that the question of consent was immaterial, there were prima facie offences against sections 20 and 47 and the next question was whether there was good reason to add sado-masochistic acts to the list of exceptions contemplated in  Attorney General’s Reference (No 6 of 1980) . The answer was “No”.

Sado-masochistic homosexual activities could not be regarded as conducive to the enhancement or enjoyment of family life or conducive to the welfare of society. A relaxation of the prohibitions in sections 20 and 47 could only encourage the practice of homosexual sado-masochism and the physical cruelty that it must involve by withdrawing the legal penalty and giving the activity a judicial imprimatur.

A proposed general exemption was to be tested by considering the proposed general effect. That had to include the possibility that some sado-masochistic activity, under the powerful influence of the sexual instinct, would get out of hand and result in serious physical damage to the participants and that some activity would involve a danger of infection.

LORD MUSTILL , dissenting, said that the case was about the criminal law of violence and in his opinion should have been a case about the criminal law of private sexual relations.

The conduct of the appellants and of other co-accused had been treated by the prosecuting authorities in three ways.

First there were those acts which fell squarely within the legislation governing sexual offences. Thus four of the men pleaded guilty to charges of keeping a disorderly house and one pleaded guilty to publishing obscene articles, namely video tapes.

The two remaining categories of conduct comprised private acts. Some were prosecuted and were now before the House. Others were not. If repugnance to general public sentiments of morality and propriety were the test, one would have expected proceedings in respect of the most disgusting conduct to be prosecuted with the greater vigour. Yet the opposite was the case.

Why was that so? Obviously because the prosecuting authorities could find no statutory provision apt to cover that conduct, whereas the sexual conduct which underlay the present appeals, although less extreme, could at least arguably be brought within sections 20 and 47 of the 1861 Act because it involved the breaking of skin and the infliction of more than trifling hurt.

That distribution of charges against the appellants at once sounded a note of warning. It suggested that the involvement of the 1861 Act was


adventitious. That impression was reinforced when one considered the title of the statute.

Of course the House had to give effect to the statute if its words captured what the appellants had done, but in deciding whether that was really so it was legitimate to assume that the choice of the 1861 Act as the basis for the relevant counts in the indictment was made only because no other statute was found which could conceivably be brought to bear upon them.

His Lordship therefore approached the appeal on the basis that the convictions on charges which seemed so inapposite could not be upheld unless the language of the statute or the logic of the decided cases positively so demanded. Unfortunately the language of the statute was opaque and the cases few and unhelpful.

His Lordship concluded, upon consideration of the case law, that the House was free, as the Court of Appeal had not been, being bound by  Attorney General’s Reference (No 6 of 1980) , to consider entirely afresh whether the public interest demanded the interpretation of the 1861 Act in such a way as to render criminal under section 47 the acts done by the appellants.

It had to be emphasised that the issue before the House was not whether the appellant’s conduct was morally right but whether it was properly charged under the 1861 Act.

Thus while many people if asked whether the appellants conduct was wrong would reply “Yes, repulsively wrong” that did not of itself mean that the prosecution of the appellants under the 1861 Act was well founded.

The question to be asked was whether there was a good reason to impress upon section 47 an interpretation which penalised the relevant level of harm irrespective of consent. That formulation of the question was very important for if it were differently stated it might yield a different answer.

In particular, if it were to be held that as a matter of law all infliction of bodily harm above the level of common assault was incapable of being legitimised by consent, except in special circumstances, then it would be necessary to consider whether the public interest required the recognition of private sexual activities as being in a specially exempt category.

That would be an altogether more difficult question and one which his Lordship would not be prepared to answer in favour of the appellants because it was a task which the courts were not suited to perform and which should be carried out, if at all, by Parliament after a thorough review of all the issues.

In the event, the question was not whether as a result of the decision of the instant appeal activities such as those of the appellants should cease to be criminal but rather whether the 1861 Act, a statute which was clearly intended to penalise conduct of a different nature, should in this new situation be interpreted so as to make it criminal.

His Lordship did not advocate the decriminalisation of conduct which had hitherto been a crime. The only question was whether those consensual private acts were offences against the existing law of violence. To that he returned a negative response.

LORD SLYNN , dissenting, said that he did not consider that any of the existing cases was conclusive in resolving the instant question. Those decisions were not in any event binding upon the House so the matter had to


be considered as one of principle.

Consent could not be said simply to be a defence to any act which one person did to another. A line had to be drawn as to what could and could not be the subject of consent. That line had to be workable. It could not be allowed to fluctuate within particular charges and, in the interests of legal certainty, it had to be accepted that consent could be given to acts which were said to constitute actual bodily harm and wounding.

Accordingly, other than for offences of grievous bodily harm or death, consent could be a defence. That in no way meant that the acts done were approved of or encouraged. It meant no more than that they did not constitute an assault within the meaning of those two specific sections of the 1861 Act.

In the present case there was no doubt that there was consent; indeed there was more than mere consent. Astonishing though it might seem, the persons involved positively wanted, asked for, the acts to be done to them. All the accused were old enough to know what they were doing. The acts were done in private.

No one complained as to what was done. The matter came to the attention of the police coincidentally. The acts did not result in any permanent or serious injury or disability or any infection and no medical assistance was required even though there may have been some risk of infection, even injury.

The onus was on the prosecution to prove that there was no consent on the part of the person said to have been assaulted.

His Lordship concluded that as the law stood, adults could consent to acts done in private which did not result in serious bodily harm, so that such acts did not constitute criminal assaults for the purposes of the 1861 Act.

In the end it was a matter of policy in an area where social and moral factors were extremely important and where attitudes could change. It was a matter of policy for the legislature to decide.

It was not for the courts in the interests of paternalism or in order to protect people from themselves to introduce into existing statutory crimes relating to offences against the person, concepts which did not properly fit there.

Solicitors: Geffens, Walsall; J P Malnick & Co, Islington; Hughmans; Shakespeares, Birmingham; CPS, HQ.

12/03/1993 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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6 Responses to Brown, Lucas, Jaggard, Laskey, Carter 12 March 1993 Times Law Reports House of Lords (Spanner)

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

  2. Pingback: Brown, Laskey, Jaggard, Lucas, Carter, Cadman 21 February 1992 Times Law Reports Court of Appeal (Spanner) | cathy fox blog on child abuse

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

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

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

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