MY CASES:

R v Brown:
Facts:
Five of the appellants of the case engaged in sadomasochistic sexual acts,
consenting to the harm which they received. While none of these individuals
complained against any of the acts in which they were involved, they were
uncovered by an unrelated police investigation. Upon conviction, the appellants
argued that they could not be convicted under the Offences against the Person
Act 1861, as they had in all instances consented to the acts they engaged in.
Judgment:
The certified question of appeal which the House of Lords was asked to consider
was:
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 or
section 47 of the Offences against the Person Act 1861?[3]
The Lords by a bare majority, Lords Mustill and Slynn dissenting answered
this in the negative, holding that consent could not be a defence to offences
under sections 20 and 47 of the Offences against the Person Act 1861.
Lord Templeman stated:
It is not clear to me that the activities of the appellants were exercises of rights
in respect of private and family life. But assuming that the appellants are
claiming to exercise those rights I do not consider that Article 8 invalidates a law
which forbids violence which is intentionally harmful to body and mind. Society is
entitled and bound to protect itself against a cult of violence. Pleasure derived
from the infliction of pain is an evil thing. Cruelty is uncivilised. I would answer
the certified question in the negative and dismiss the appeals of the appellants
against conviction.
In Lord Mustill's view, the degree of consent involved could negate the
criminality:
In my opinion it should be a case about the criminal law of private sexual
relations, if about anything at all ... [leaving aside] repugnance and moral
objection, both of which are entirely natural but neither of which are, in my
opinion, grounds upon which the court could properly create a new crime.[4]

R v Barnes:
Facts
The Defendant had inflicted a serious leg injury upon the victim whilst
attempting to make a sliding tackle during an amateur football match. The
Defendant accepted that the tackle had been hard, but maintained that it had
been fair, and that the injury caused had been purely accidental. He was

convicted on one count of unlawfully and maliciously inflicting grievous bodily

harm, contrary to s.20 of the Offences Against The Person Act 1861. He appealed
against the conviction.

Issue
When is it appropriate for criminal proceedings to be brought when an injury is
caused to one player by another in the course of a sporting event.

Held:
Criminal proceedings should be reserved for those situations where the conduct
was sufficiently grave properly to be categorised as criminal. Most sports had
their own disciplinary procedures that would cater for improper behaviour on
pitch. Physical injury was an inevitable risk of sport, and those participating
consented to such injury. Even conduct outside of the rules of the game may not
be criminal. An instinctive error, reaction or misjudgement in the heat of a game
was not to be equated with criminal activity.
Comment
This decision breaks new ground in the field of the criminal liability of sportsmen
for causing injuries. Generally, consent is no defence to a charge of bodily harm:
R v Brown (1994). The question how, if at all, this rule could or should be
modified in relation to injuries caused by foul play in sport was controversial,
with little authority. Some commentators took the view that all injuries caused
outside the sports rules should be criminal, to maintain the rule of law. This
judgment rules out that view. The approach adopted is similar to that of the
Canadian courts, where consent may be a defence to a criminal charge based on
sporting harm, and the court considers not just the rules but the playing culture
of the game when deciding if conduct is criminal. The courts view that such
cases should generally be dealt with by sports regulators was in line with a wellestablished tradition of judicial non-intervention in sporting matters.

R v Slingsby:
Facts:
The defendant penetrated the complainants vagina and rectum with his hand;
she suffered cuts caused by a signet ring worn by the defendant; septicaemia
developed and she died. The defendant was charged with manslaughter. The
judge was asked to make a ruling on whether, putting the prosecution case at its
highest, the defendant should be liable to be convicted of manslaughter. It was
the prosecution case that if any significant injury was a likely consequence of
vigorous consensual activity and injury resulted, that would amount to an
assault, although it was accepted that the act of inserting fingers or hand into
the vagina or rectum for the purposes of sexual stimulation would not, if
consensual, amount to an assault or any other crime.

Held: Judge J said: The difficulty with this submission was that the sexual
activity to which both the deceased and the defendant agreed did not involve
deliberate infliction of injury or harm and but for the coincidental fact that the
defendant happened to be wearing a signet ring, no injury at all would have been
caused or could have been contemplated. The question of consent to injury did
not, in fact, arise because neither anticipated or considered it. At the time, all
they were considering was this vigorous sexual activity. Therefore, the reality was
that the deceased sustained her unfortunate injuries, not when she or the
defendant were consenting to injury, but as an accidental consequence of the
sexual activity which was taking place with her consent. It would be contrary to
principle to treat as criminal activity which would not otherwise amount to
assault merely because in the course of the activity an injury occurred.

R v Wilson:
Facts:
The appellant was charged with assaulting his wife contrary to section 47 of the
Offences Against the Person Act 1861. In interview with the police the appellant
admitted using a hot knife to brand the capital letters W on one, and A on the
other, of his wife's buttocks. At the close of the prosecution case, the judge ruled
that there was a case to answer holding that he was bound by R. v. Brown (1993)
97 Cr.App.R. 44, [1994] 1 A.C. 212. The appellant called no evidence and was
convicted.

Held,
allowing the appeal, that (1) Brown is not authority for the proposition that
consent is no defence to a charge under section 47 of the Offences Against the
Person Act 1861 in all circumstances where actual bodily harm is deliberately
inflicted. What the appellant had done, if carried out with the consent of an adult,
did not involve an offence under section 47, albeit that actual bodily harm was
deliberately inflicted. (2) Consensual activity between husband and wife, in the
privacy of the matrimonial home, is not a proper matter for criminal investigation
or prosecution.

R v Dica
Facts
The accused was diagnosed with HIV in December 1995 and began treatment.
Following his diagnosis, he had unprotected sexual intercourse with two women,
allegedly without disclosing his HIVpositive status. The accused testified that
both women were aware of his HIV infection and were nonetheless willing to
have sexual intercourse with him. The complainants later tested positive for HIV.
Held:
The Court of Appeal, however, ruled that consent to the risk of transmission
through consensual sex is a valid defence to a charge of reckless transmission.

Consent to the risk of infection, however, would not provide a defence in cases of
deliberate infection or spreading of HIV with intent to cause grievous bodily
harm. Based on the existing jurisprudence, the Court found that for public policy
reasons, violent conduct involving the deliberate and intentional infliction of
bodily harm is and remains unlawful, notwithstanding that its purpose is the
sexual gratification of one or both participants. Referring to the case, the Court
went on to find that it does not follow from them, and they do not suggest, that
consensual acts of sexual intercourse are unlawful merely because there may be
a known risk to the health of one or other participant. These participants are not
intent on spreading or becoming infected with disease through sexual
intercourse. They are not indulging in serious violence for the purposes of sexual
gratification. They are simply prepared, knowingly, to run the risk not the
certainty of infection, as well as all the other risks inherent in and possible
consequences of sexual intercourse, such as, and despite the most careful
precautions, an unintended pregnancy. Although it would be unlikely that
consent can be established unless the complainant was informed about the risk
of a sexually transmitted infection, the Court indicated that the ultimate question
is not knowledge but consent and that, in every case where this issue arises, the
question of whether the complainant did or did not consent to the risk of a
sexually transmitted infection is one of fact and case specific.

OPPONENT:
R v Church [1965] 2 WLR 1220
Sylvia Notts mocked the appellant's ability to satisfy her sexually and slapped his
face. A fight developed during which the appellant knocked her unconscious. He
tried to wake her for 30 mins to no avail. He believed she was dead and threw
her body into a river. Medical evidence revealed that the cause of death was
drowning and she therefore had been alive when he threw her into the river. The
trial judge made several errors in his direction to the jury and in the event they
convicted of manslaughter rather than murder. The appellant appealed on the
grounds of misdirection.
Held:
Whilst there were several errors in the judge's direction the conviction for
manslaughter was safe.

Edmund Davies LJ set the applicable test for constructive manslaughter:

"The conclusion of this Court is that an unlawful act causing the death of another
cannot, simply because it is an unlawful act, render a manslaughter verdict
inevitable. For such a verdict inexorably to follow, the unlawful act must be such
as all sober and reasonable people would inevitably recognise must subject the
other person to, at least, the risk of some harm resulting therefrom, albeit not
serious harm."

R v Cato (1976) 62 Cr App R 41 Court of Appeal

The appellant purchased some heroin took it to his home which he shared with
Anthony Farmer and two others. He invited them all to use the heroin. They each
prepared their own solution and then paired off to inject each other. Farmer
prepared his own solution and the appellant injected him. This was repeated
during the night. The following day Farmer was found dead. The appellant was
convicted of manslaughter and administering a noxious thing under s.23 OAPA
1861.

Held:
Appeal was dismissed. Conviction for manslaughter upheld.
It was held that there had been an unlawful act of administering a noxious thing
and that that act had caused death. However, Lord Widgery went further:
Lord Widgery CJ:
"had it not been possible to rely on the charge under section 23 of the Offences
against the Person Act, we think that there would have been an unlawful act here
and we think the unlawful act would be described as injecting the deceased
Farmer with a mixture of heroin and water which at the time of the injection and
for the purposes of the injection the accused had unlawfully taken into his
possession."

R v Lamb [1967] 2 QB 981

Two boys were playing with a revolver. There were two bullets in the chamber but
neither were opposite the barrel. The two boys believed that this meant it would
not fire. One of the boys pointed the gun at the other and fired. As he pulled the
trigger the chamber turned and the gun went off killing the boy. The other was
charged with unlawful act manslaughter.
Held:
There was no unlawful act as no assault had been committed as the victim did
not believe the gun would go off therefore he did not apprehend immediate
unlawful personal violence.

R v Lloyd 1989
D a rugby player kicked another while he was lying on the ground, breaking his
cheekbone
Held: Although the game involved forceful contact, it was not a licence for
thuggery. What the defendant did had nothing to do with rugby football or the
play in progress but was a vicious barbaric attack.
Guilty of GBH 18 monts imprisonment upheld

R v Billinghurst [1978] Crim LR 553.

During a rugby match and in an off-the-ball incident B punched an opposing
player, in the face fracturing the jaw. B was charged with inflicting grievous
bodily harm contrary to s20 of the Offences Against the Person Act 1861. The
only issue in the case was consent. Evidence was given by the victim that on
previous occasions he had been punched and had himself punched opponents on

the rugby field, and by a defence witness, a former International rugby player,
that in the modern game of rugby punching is the rule rather than the exception.
It was argued by the defence that in the modern game of rugby players
consented to the risk of some injury and that the prosecution would have to
prove that the blow struck by B was one which was outside the normal
expectation of a player so that he could not be said to have consented to it by
participating in the game. The prosecution argued that public policy imposes
limits on violence to which a rugby player can consent and that whereas he is
deemed to consent to vigorous and even over-vigorous physical contact on the
ball, he is not deemed to consent to any deliberate physical contact off the ball.
The judge directed the jury that rugby was a game of physical contact
necessarily involving the use of force and that players are deemed to consent to
force "of a kind which could reasonably be expected to happen during a game."
He went on to direct them that a rugby player has no unlimited licence to use
force and that "there must obviously be cases which cross the line of that to
which a player is deemed to consent." A distinction which the jury might regard
as decisive was that between force used in the course of play and force used
outside the course of play. The judge told the jury that by their verdict they could
set a standard for the future. The jury, by a majority verdict of 11 to 1, convicted
B.