The appellants had been convicted of assault, after having engaged in consensual acts of sado-masochism in which they inflicted varying degreees of physical self harm. They had pleaded guilty after a ruling that the prosecution had not needed to prove the absence of consent. They said it was their human right to give consent to such acts, as an expression of their sado-masochistic libido.
Held: It was not in the public interest that injuries should be allowed to be inflicted on others without good reason. Sado-masochism was not a good reason. Articles 7 and 8 of the Convention have no application in these circumstances.
Lord Mustill (dissenting) said: ‘As a matter of policy the courts have decided that the criminal law does not concern itself with these activities, provided that they do not go too far. It also seems plain that as the general social appreciation of the proper role of the state in regulating the lives of individuals changes with the passage of time, so we shall expect to find that the assumptions of the criminal justice system about what types of conduct are properly excluded from its scope, and what is meant by ‘going too far’ will not remain constant.’
Lord Jauncey said: ‘I prefer the reasoning of Cave J. in Coney and of the Court of Appeal in the later three English cases which I consider to have been correctly decided. In my view, the line properly falls to be drawn between assault at common law and the offences of assault occasioning actual bodily harm created by s.47 of the Offences Against the Person Act 1861, with the result that consent of the victim is no answer to anyone charged with the latter offence or with a contravention of s. 20 unless the circumstances fall within one of the well known exceptions such as organised sporting contest and games, parental chastisement or reasonable surgery.’
Lord Templeman, Lord Jauncey of Tullichettle, Lord Lowry, Lord Mustill and Lord Slynn of Hadley
Independent 12-Mar-1993, [1994] 1 AC 212, [1993] UKHL 19, [1992] UKHL 7, [1993] 2 WLR 556, [1993] 2 All ER 75
lip, Bailii
Offences Against the Person Act 1861 20 47, European Convention on Human Rights 7 8
England and Wales
Citing:
Cited – Wilson v Pringle CA 26-Mar-1986
Two boys played in a school yard. D said he had pulled a bag from the other’s shoulder as an ordinary act of horseplay. The plaintiff said it was a battery.
Held: The defendant’s appeal against summary judgment was allowed. A claim of trespass . .
Cited – Rex v Taverner 1616
The court discussed the offence of killing in a duel. It expounded the heinousness of the offence with copious reference to the ancients and to Holy Scripture. Killing in cold blood was the sin of Cain . .
Cited – Attorney-General’s Reference (No 6 of 1980) CACD 1981
The court considered a reference on a point of law as to whether consent could be a defence to a charge of assault arising out of a fight in a public place to which the other party consented.
Held: Lord Lane CJ said: ‘It is not in the public . .
Cited – Collins v Wilcock QBD 1984
The defendant appealed against her conviction for assaulting a police constable in the execution of his duty. He had sought to caution her with regard to activity as a prostitute. The 1959 Act gave no power to detain, but he took hold of her. She . .
Cited – Director of Public Prosecutions v Smith HL 1960
The defendant tried to avoid arrest and killed a policeman by driving off with the policeman clinging to the car.
Held: (1) The defendant committed murder because death or grievous bodily harm was foreseen by him as a ‘likely’ result of his . .
Cited – Fairclough v Whipp CCA 1951
The defendant was charged with indecent assault on a girl aged nine. At the man’s invitation the girl had committed an indecent act on the man.
Held: An invitation to another person to touch the invitor could not amount to an assault on the . .
Cited – J J C (A Minor) v Eisenhower QBD 1983
The defendant shot an airgun at a group of people. He hit someone just below the eye, causing bruising, but not breaking the skin. One blood vessel at least below the skin burst.
Held: His conviction was set aside. A conviction under section . .
Cited – Regina v Boyea CACD 28-Jan-1992
The defendant was accused of having, with or without the consent of his victim, caused her physical damage by inserting his hand in her vagina and twisting it.
Held: ‘the extent of the violence inflicted . . went far beyond the risk of minor . .
Cited – Regina v Bradshaw 1878
The court considered the lawfulness of the sport of boxing: ‘no rules or practice of any game whatever can make lawful that which is unlawful by the law of the land.’ . .
Cited – Regina v Bruce 1847
. .
Cited – Regina v Ciccarelli CACD 1989
. .
Cited – Regina v Clarence CCCR 20-Nov-1888
The defendant knew that he had gonorrhea. He had intercourse with his wife, and infected her. She would not have consented had she known. He appealed his convictions for assault and causing grievous bodily harm.
Held: ‘The question in this . .
Cited – Regina v Coney QBD 18-Mar-1882
A public prize-fight was unlawful. Spectators were tried at Berkshire County Quarter Sessions with common assault. The Chairman of Quarter Sessions directed the jury to convict the spectators of common assault on the basis that having stayed to . .
Cited – Regina v Griffin CCA 1869
The court considered when a parent may use the defence of lawful correction of a child as a defence.
Held: Since an infant of 2 and a half years old could not appreciate correction, the father could not justify an assault as correction, and . .
Cited – Regina v Hopley 11-Jan-1860
(Summer Assizes, 1860) The prisoner was indicted for the manslaughter of Reginald Cancellor. The prisoner was a schoolmaster at Eastbourne, and in 1859 the deceased, a boy aged thirteen or fourteen, had been entrusted to his charge. He was a dull . .
Cited – Regina v Jones (Terence) CACD 1986
The trial judge declined to direct the jury that the defendants were entitled to be acquitted if the jury decided that they were indulging in ‘rough’ and undisciplined sport or play, not intending to cause harm, and genuinely believing that the . .
Cited – Regina v McCoy 1953
(Rhodesia) . .
Cited – Regina v Moore 1898
. .
Cited – Regina v Mowatt CACD 20-Jun-1967
The defendant was attacked by his victim, and he hit his victim in the face. He was charged with wounding with intent to do grievous bodily harm with an alternative of unlawful wounding also open to the jury. The judge gave no direction on the . .
Cited – Regina v Orton 1878
What would otherwise be classified as a fierce assault in criminal law may not be so in the sporting context of a boxing match. . .
Cited – Regina v Savage; Director of Public Prosecutions v Parmenter HL 7-Nov-1991
The first defendant had been convicted of wounding. She had intended to throw beer over her victim, but her glass slipped from her hand, and cut the victim. The second defendant threw his three year old child in the air and caught him, not realising . .
Cited – Regina v Wollaston 1872
On a trial of sexual assault, the Court considered the difference between consent and submission in the victim.
Sodomy and indecent assault belong to the same family or class of offences, . .
Cited – Regina v Young 1866
. .
Cited – Rex v Donovan CCA 1934
The defendant was convicted of indecent assault and common assault after caning a 17 year old female complainant for the purposes of sexual gratification. The complainant suffered actual bodily harm, though the defendant was not charged with an . .
Appeal from – Regina v Brown etc CACD 15-Apr-1992
The defendants appealed against their convictions for offences under the 1861 Act of assaults inflicting injury. They said that as sado-masochists, they had mutually consented to the assaults and that no offences had been commited, but pleaded gulty . .
Cited – Regina v Aitken CACD 1993
The court considered the criminality of high-spirited, ‘horseplay’ which had resulted in serious injury. . .
Cited by:
Cited – Regina v Dica CACD 5-May-2004
Reckless HIV transmission – Grievous Bodily Harm
The defendant appealed against his conviction for inflicting grievous bodily harm. He had HIV/Aids, and was found to have transmitted the disease by intercourse when the victims were not informed of his condition. It was not suggested that any rape . .
Appeal from – Laskey, Jaggard and Brown v The United Kingdom ECHR 19-Feb-1997
A prosecution for sado-masochist acts was a necessary invasion of privacy to protect health. The Court found no violation where applicants were imprisoned as a result of sado-masochistic activities captured on video tape when police obtained . .
Cited – Regina v Barnes CACD 21-Dec-2004
The defendant appealed against a conviction for inflicting grievous bodily harm, after causing a serious leg injury in a football match when tackling another player.
Held: There was surprisingly little authority on when it was appropriate to . .
Cited – Konzani, Regina v CACD 17-Mar-2005
The defendant appealed conviction for inflicting grievous bodily harm on three women, by having unprotected sexual intercourse knowing that he was HIV positive, but without telling the women. Each contracted HIV. The allegation was that he had . .
Cited – Meachen, Regina v CACD 20-Oct-2006
The appellant appealed his conviction for anal rape. He said the incident had been consensual. He had administered a date rape drug. He said again that this had been consensual. The prosecution alleged that the injuries left were inconsistent with . .
Cited – Mosley v News Group Newspapers Ltd QBD 24-Jul-2008
mosley_newsgroupQBD2008
The defendant published a film showing the claimant involved in sex acts with prostitutes. It characterised them as ‘Nazi’ style. He was the son of a fascist leader, and a chairman of an international sporting body. He denied any nazi element, and . .
Cited – Nicklinson v Ministry of Justice and Others QBD 12-Mar-2012
The claimant suffered locked-in syndrome and sought relief in a form which would allow others to assist him in committing suicide. The court considered whether the case should be allowed to proceed rather than to be struck out as hopeless.
Cited – Gnango, Regina v SC 14-Dec-2011
The prosecutor appealed against a successful appeal by the defendant against his conviction for murder. He and an opponent had engaged in a street battle using guns. His opponent had shot an innocent passer by. The court was now asked as to whether . .
Cited – Regina v Emmett CACD 18-Jun-1999
The defendant appealed against conviction after being involved in sexual activity which he said was not intended to cause harm, and were said to be consensual, but clearly did risk harm. On the first occasion he tied a plastic bag over the head of . .
Cited – BM, Regina v CACD 22-Mar-2018
The defendant appealed from a preliminary ruling that his body modification services were not in law capable of being consented to and therefore amounted to an assault.
Held: The appeal failed: ‘we can see no good reason why body modification . .
Lists of cited by and citing cases may be incomplete.
Crime, Human Rights
Leading Case
Updated: 02 November 2021; Ref: scu.86245