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 his partner. On the second, he poured lighter fluid over the victim and set it alight.
Held: These were not acts to which she could give lawful consent, and the conviction was upheld: ‘Accordingly, whether the line beyond which consent becomes immaterial is drawn at the point suggested by Lord Jauncey and Lord Lowry [in R v Brown [1994] AC 212], the point at which common assault becomes assault occasioning actual bodily harm, or at some higher level, where the evidence looked at objectively reveals a realistic risk of a more than transient or trivial injury, it is plain, in our judgment, that the activities [engaged] in by this appellant and his partner went well beyond that line. The learned judge, in giving his ruling said: ‘In this case, the degree of actual and potential harm was such and also the degree of unpredictability as to injury was such as to make it a proper cause [for] the criminal law to intervene. This was not tattooing, it was not something which absented pain or dangerousness and the agreed medical evidence is in each case, certainly on the first occasion, there was a very considerable degree of danger to life; on the second, there was a degree of injury to the body.’ With that conclusion, this Court entirely agrees.’

Rose LJ, Wright and Kay JJ
[1999] EWCA Crim 1710, [1999] No. 99011191/Z2
Offences Against the Person Act 1861 47
England and Wales
CitedRegina v Brown (Anthony); Regina v Lucas; etc HL 11-Mar-1993
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 . .

Cited by:
CitedRegina 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 . .
CitedCoutts, Regina v CACD 21-Jan-2005
The defendant appealed his conviction for murder, saying that the judge should have left to the jury the alternative conviction for manslaughter. The victim had died through strangulation during a sexual assault by the defendant. He said it had not . .
CitedRegina v Coutts HL 19-Jul-2006
The defendant was convicted of murder. Evidence during the trial suggested a possibility of manslaughter, but neither the defence nor prosecution proposed the alternate verdict. The defendant now appealed saying that the judge had an independent . .
CitedMeachen, 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 . .
See AlsoRegina v Emmett (Stephen Roy) CACD 15-Oct-1999
When the CPS intends to seek an order for costs against a defendant, in future, the defendant must be given notice of the intention to make the application. (it may be that this is to apply in the Court of Appeal only, but this is unclear from the . .

Lists of cited by and citing cases may be incomplete.


Leading Case

Updated: 19 January 2022; Ref: scu.158110