England and Wales Court of Appeal (Criminal Division) Decisions

Royal Courts of Justice

The Strand

London WC2

Friday 18th June 1999

B E F O R E :

THE VICE PRESIDENT

(LORD JUSTICE ROSE)

MR JUSTICE WRIGHT

and

MR JUSTICE KAY

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R E G I N A

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STEPHEN ROY EMMETT

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Computer Aided Transcript of the Stenograph Notes of

Smith Bernal Reporting Limited

180 Fleet Street, London EC4A 2HD

Tel No: 0171 421 4040 Fax No: 0171 831 8838

(Official Shorthand Writers to the Court)

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MR T SPENCER appeared on behalf of the Appellant

MR J FARMER appeared on behalf of the Crown

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JUDGMENT

( As approved by the Court )

CROWN COPYRIGHT

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Friday 18th June 1999

MR JUSTICE WRIGHT: On 29th January 1999, in the Crown Court at Norwich, the appellant, Mr Stephen Roy Emmett, appeared before His Honour Judge Downes and a jury charged with altogether five offences of assault occasioning actual bodily harm.

In the event, the prosecution were content to proceed upon two of those counts. The appellant was convicted of assault occasioning actual bodily harm, on one count, by the jury on the judge's direction; and in the light of the judge's direction, he pleaded guilty to a further count of assault occasioning actual bodily harm, following the judge's ruling that there was no defence of consent available to the appellant. The remaining counts on the indictment were ordered to remain on the file on the usual terms.

On 23rd February 1999 the appellant was sentenced to 9 months' imprisonment on each count consecutive, the sentence being suspended for 2 years.

He now appeals against conviction upon a certificate granted by the trial judge which sets out the following question for the determination of this Court:

"Where two adult persons consent to participate in sexual activity in private not intended to cause any physical injury but which does in fact cause or risk actual bodily harm, the potential for such harm being foreseen by both parties, does consent to such activity constitute a defence to an allegation of assault occasioning actual bodily harm contrary to section 47 of the Offences Against the Person Act 1861."

The facts underlining these convictions and this appeal are a little unusual. The appellant and the lady who is the subject of these two counts were at the material time cohabiting together, and it is only right to recall that, since the events which formed the basis of this prosecution and since the prosecution was launched, they have married each other.

The evidence before the court upon which the judge made his ruling came not from the complainant, who indeed in the circumstances is hardly to be described as such, but from the doctor whom she had consulted as a result of the injuries that she had suffered. At trial the doctor was permitted only to describe the extent and nature of those injuries and not the explanations she gave for them. The explanations for such injuries that were proffered by the appellant, at his interview with the investigating police officers constituted the remainder of the evidence. The complainant herself did not give evidence and it was not intended that the appellant should do so either.

As to the first incident which gave rise to a conviction, we take gratefully the statement of facts from the comprehensive ruling on the matter that the learned judge handed down. The evidence on that count was that in the course of sexual activity between them, it was agreed that the appellant was to cover the complainant's head with a plastic bag of some sort, tie it at the neck with a ligature, made from anything that was to hand, and tightened to the point of endurance on the part of the person being tied. There is a possibility, although the evidence was not entirely clear on the point, there might also have been a gag applied. In any event, the complainant was tied up.

On the occasion of count 1, it is clear that while the lady was enveloped in the plastic bag in this way, the defendant engaged in oral sex with her and it became apparent, at some stage, that his excitement was such that he had lost track of what was happening to the complainant. He eventually became aware that she was in some sort of distress, was unable to speak, or make intelligible noises, and it was apparent that she was in trouble because of the loss of oxygen.

He rapidly removed the bag from her head. It may well be, as indeed the complainant herself appears to have thought, that she actually lost consciousness during this episode. But, in any event, during the following day, her eyes became progressively and increasingly bloodshot and eventually she went to see her doctor. He found that there subconjunctival haemorrhages in both eyes and some petechial bruising around her neck. The first symptom was caused by the restriction of oxygen to the brain and the second by the restriction on the return blood flow in her neck. No treatment was prescribed and after about a week her eyes returned to normal.

However, it is plain, and is accepted, that if these restrictions had been allowed to continue for too long, as the doctor himself pointed out, brain damage of increasing severity and ultimately death might result.

The second incident arose out of events a few weeks later when again sexual activity was taking place between these two people. On this occasion lighter fuel was used and the appellant poured some on to his partner's breasts and set light to it. As a result she suffered a burn, measuring some 6cm x 4cm, which became infected and, at the appellant's insistence, she consulted her doctor again. He thought she had suffered a full thickness third degree burn which might in the event require skin graft. Happily, it appears that he may have somewhat overestimated the seriousness of the burn, as it appears to be accepted that, by the date of the hearing, the burn had in fact completely healed over without scarring.

Nonetheless, the doctor, alarmed by the appearance of his patient on two occasions and the explanations that she had given as to how these injuries had come about, informed the police, and the appellant was arrested.

During a series of interviews, the appellant explained that he and his partner had been living together for some 4 months, and that they were deeply involved in an energetic and very physical sexual relationship which both greatly enjoyed. The suggestions for some of the more outre forms of sexual activity came normally from him, but were always embarked upon and only after discussion and with her complete consent and always desisted from if she objected.

On the other hand, he accepted that it was their joint intention to take such matters "to the limit, before anything serious happens to each other." He accepted that, on the first occasion, involving the plastic bag, things had indeed gone too far, and he had panicked: "I just pulled it off straight away, I didn't realise how far the bag had gone."

As to the lighter fuel incident, he explained that when he set light to the liquid, she had panicked and would not keep still, so he could not extinguish the flames immediately. As a result, she had suffered the burn which he had accepted was a serious one.

On both occasions, she had only gone to the doctor on his insistence. The learned judge, at the close of that evidence, delivered a ruling to which this Court desires to pay tribute, for its clarity and logical reasoning. He held that the nature of the injuries and the degree of actual or potential harm was such, that it was proper for the criminal law to intervene and that in light of the majority of the opinions of the House of Lords in R v Brown [1994] AC 212, 97 Cr App R 44, consent could not form the basis of a defence. It is to that authority that first reference must be made when considering a matter of this kind.

In that case a group of sadomasochistic homosexuals, over a period of years, took willing part in the commission of acts of violence against each other, including what can only be described as genital torture for the sexual pleasure engendered in the giving and receiving of pain. All such activities took place in private. The participants were convicted of a series of substantive offences against either section 20 or section 47 of the 1861 Act. The House of Lords, by a majority of 3 to 2 upheld the judgment of this Court, and dismissed the appeals against conviction, holding that public policy required that society should be protected by criminal sanctions against conduct which, among other things, held the potential for causing serious injury. Accordingly the House held that a person could be convicted under section 47 of the 1861 Act for committing sadomasochistic acts which inflict injuries, which were neither transient nor trifling, notwithstanding that the recipient of such injuries consented to the acts and not withstanding that no permanent injury was sustained.

Lord Jauncey and Lord Lowry in their speeches both expressed the view that, as a matter of principle, that the deliberate infliction of actual bodily harm in a sadomasochistic activity should be held unlawful notwithstanding the consent of the victim. At page 50 Lord Jauncey observed:

"It was accepted by all the appellants that a line had to be drawn somewhere between those injuries to which a person could consent to an infliction upon himself and those which were so serious that consent was immaterial. They all agreed that assaults occasioning actual bodily harm should be below the line, but there was disagreement as to whether all offences against section 20 of the Act of 1861 should be above the line or only those resulting in grievous bodily harm."

In a later passage, the learned Lord of Appeal having cited a number of English cases observed:

"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 offence of assault occasioning actual bodily harm created by section 47 of the Offence Against the Person Act 1961, with the result that consent of the victim is no answer to anyone charged with the latter offence or with a contravention of section 20 unless the circumstances fall within one of the well-known exceptions such as organised sporting contest and games, parental chatisement or reasonable surgery."

Lord Lowry at page 67, agreed with Lord Jauncey, and also drew the line between that which amounts to common assault and that which amounts to the statutory offence of assault occasioning actual bodily harm. Lord Templeman, on the other hand, based his opinion upon the actual or potential risk of harm, and at page 51 he observed this, after describing the activities engaged in by the appellants in that case. He observed and we quote:

"The dangers involved in administering violence must have been appreciated by the appellant because, so it was said by their counsel, each victim was given a code word which he could pronounce when excessive harm or pain was caused. The efficiency of this precaution, when taken, depends on the circumstances and on the personalities involved. No one can 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... There were obvious dangers of serious personal injury and blood infection."

Then in a later passage he observed:

"It is fortunate that there were no permanent injuries to a victim though no one knows the extent of harm inflicted in other cases."

In a resounding passage, Lord Templeman concluded:

"I am not prepared to invent a defence of consent for sado-masochistic encounters which breed and glorify cruelty and result in offences under section 47 and 20 of the Act of 1861."

We observe en passant that although that case related to homosexual activity, we can see no reason in principle, and none was contended for, to draw any distinction between sadomasochistic activity on a heterosexual basis and that which is conducted in a homosexual context.

Their Lordships referred, with approval, in the course of those evidence, to the decision of this Court, in Attorney-General's Reference No 6 of 1980 73 Cr App R 63, a case arising out of consensual fighting in the street. Lord Lane, giving the judgment of the Court, when answering the question: at what point does the public interest require the court to hold that consent is not a defence? He remarked and we quote:

"The answer to this question, in our judgment, is that it is 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 are another matter. So, in our judgment, it is immaterial whether the act occurs in private or public; it is an assault if actual bodily harm is intended and/or caused. This mean that most fights will be unlawful regardless of consent.

Nothing which we have said is intended to cast doubt upon the accepted legality of properly conducted games and sports, lawful chatisement or correction, reasonable surgical interference, dangerous exhibitions, etc. These apparent exceptions can be justified as involving the exercise of a legal right, in the cause of chastisement or corrections, or as needed in the public interest, in the other case cases."

In R v Jones (1988) 83 Cr App R 335, this Court, in relying on the abbreviation "etc", added rough and undisciplined horseplay without there being any intention to cause injury to that list, and the appellant relies upon that case as forming the basis for a submission that the present case is to be similarly approached as dealing or being concerned with rough and undisciplined love play.

The primary basis, however, for the appellant's submissions in this case, is to be found in the case of R v Wilson [1996] 2 Cr App R 241. In that case the facts were that the appellant, at the request and with the consent of his wife, used a hot knife to brand his initials A W on each of his wife's buttocks. At the close of the prosecution case at trial, the judge ruled that there was a case to answer, holding that he was bound by the House of Lords authority of Brown. The appellant called no evidence, and was convicted. This Court allowed the appellant's appeal on the basis that Brown is not authority for the proposition that consent is no defence, to a charge under section 47 of the Offences Against the Person 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 against section 47, albeit actual bodily harm was deliberately inflicted. The court also observed in its view, consensual activity between husband and wife, in the privacy of the matrimonial home, is not a proper matter for criminal investigation or prosecution. Russell LJ, giving the judgment of the Court, after setting out the facts, pointed that there was no evidence of any significant harm having been done to the wife, in this particular case. The healing proceeded in the normal way, so much so that the doctor who gave evidence made no reference to any scar on the right buttock.

Having referred to Brown and another case Donovan, Russell LJ went on:

"We are abundantly satisfied that there is no factual comparison to be made between the instant case and the facts of either Donovan or Brown: Mrs Wilson not only consented to that which the appellant did, she instigated it. There was no aggressive intent on the part of the appellant. On the contrary, far from wishing to cause injury to his wife, the appellant's desire was to assist her in what she regard as the acquisition of a desirable personal adornment, perhaps in this day and age no less understandable that the piercing of nostrils or even tongues for the purposes of inserting decorative jewellery.

In our judgment, Brown is not authority for the proposition that consent is no defence to a charge under section 47 of the 1861 Act, in all the circumstances where actual bodily harm is deliberately inflicted. It is to be observed that the questions certified for their Lordships in Brown, related only to a sadomasochistic encounter. Their Lordships recognised, in the course of their speeches, that it was necessary there must be exceptions to what is no more than a general proposition."

Then, the learned Lord Justice continued at page 244:

"For our part, we cannot detect any logical difference between what the appellant did and what he might have done in the way of tattooing. The latter activity apparently requires no state authorisation, and the appellant was as free to engage in it as anyone else.

We do not think that we are entitled to assume that the method adopted by the appellant and his wife was any more dangerous or painful than tattooing. There was simply no evidence to assist the court on this aspect of the matter."

The appellant, understandably, relies strongly upon these passages, but we have come to the clear conclusion that the evidence in the instant case, in striking contrast to that in Wilson, made it plain that the actual or potential damage to which the appellant's partner was exposed in this case, plainly went far beyond that which was established by the evidence in Wilson.

The lady suffered a serious, and what must have been, an excruciating painful burn which became infected, and the appellant himself recognised that it required medical attention. As to the process of partial asphyxiation, to which she was subjected on the earlier occasion, while it may be now be fairly well known that the restriction of oxygen to the brain is capable of heightening sexual sensation, it is also, or should be, equally well-known that such a practice contains within itself a grave danger of brain damage or even death. There have been, in recent years, a number of tragic cases of persons who have taken this practice too far, with fatal consequences.

As the interview made plain, the appellant was plainly aware of that danger. In the course of argument, counsel was asked what the situation would have been if, in the present case, the process had gone just a little further and the appellant's partner had died. No satisfactory answer, unsurprisingly, as we think could be given to that question.

Accordingly, whether the line beyond which consent becomes immaterial is drawn at the point suggested by Lord Jauncey and Lord Lowry, 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 involved 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 from 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. The learned judge was right to rule that these matters should be left to the jury, on the basis that consent could not amount to a defence.

Two other points have been raised before us which were not raised in the court below and which we must necessarily deal with. The first, which, in all fairness to Mr Spencer, we have to say he put forward with very considerable diffidence, is an argument based on provisions of the Local Government (Miscellaneous) Provisions Act which, as will be well-known, permits the setting up, under certain restricted circumstances, of a system of licenced sex shops. The argument, as we understand it, is that as Parliament contemplated the setting up of shops which, under certain circumstances would be permitted to sell articles to be used in connection or for the purpose of stimulating acts of force or restraint associated with sexual activity, then so must Parliament have recognised, and at least been prepared to tolerate, the use to which such articles would or might be put.

Mr Spencer regaled the Court with the recent publications emanating from the European Commission setting out what is apparently described as best practice to be followed when conduct of such kind is being indulged in.

If the suggestion behind that argument is that Parliament must be taken to have consented sub silentio to the use of sexual aids or other articles by one person, to inflict actual bodily harm upon another, then, with the greatest of respect, we would conclude that the absurdity of such a contention is such that it merits no further discussion. If that is not the suggestion, then the point has no relevance.

The second point raised by the appellant is that on the facts of this particular case, the involvement of the processing of the criminal law, in the consensual activities that were carried on in this couple's bedroom, amount to a breach of Article 8 of the European Convention on Human Rights, and this provides under paragraph (1) that everyone has the right to respect for his private and family life, his home and correspondence. By paragraph (2), there should be no interference by a public authority with the exercise of this right, except such as is in accordance with the law and is necessary, in a democratic society, in the interests - and I omit the irrelevant words - of the prevention of disorder or crime, or for the protection of health or morals.

Article 8 was considered by the House of Lords in Brown. Lord Templeman, at page 52, observed tersely, after setting out the terms of Article 8 as follows:

"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."

Lord Jauncey agreed with those observations and Lord Lowry, at page 68, observed:

"The attempts to rely on this article is another example of the appellants' reversal of the onus of proof of legality, which disregards the effect of sections 20 and 47. I would only say, in the first place, that article 8 is not part of our law. Secondly, there has been no legislation which, being post-Convention and ambiguous, falls to be construed so as to conform with the Convention rather than to contradict it. And thirdly, if one is looking at article 8.2, no public authority can be said to have interfered with a right (to indulge in sado-masochism) by enforcing the provisions of the 1861 Act. If, as appears to be the fact, sado-masochistic acts inevitably involve the occasioning of at least actual bodily harm, there cannot be a right under our law to indulge in them."

This aspect of the case was endorsed by the European Court on Human Rights itself, its own consideration of the very same case, under the title of Laskey v United Kingdom 24 EHRR 39. Again, it seems clear to us that once the conduct of the accused person has gone beyond the permitted limit, however that is defined, in inflicting injury upon or exposing to potential risk his or her partner, in the course of sadomasochistic games whether homo- or heterosexual, so that he or she prima facie at least has committed an offence of a sufficient degree of seriousness, the institution of a criminal investigation and, if appropriate, criminal proceedings cannot amount to a breach of Article 8.

For all these reasons these appeals must be dismissed.

MR FARMER: I am asked to apply for costs in the sum of £1,236. The defendant did not receive an immediate custodial sentence and was paying some contribution to costs in the lower court.

MR SPENCER: My Lord, he has been on legal aid, I believe.

THE VICE PRESIDENT: Can we be sure.

MR SPENCER: I was instructed by the Registrar.

MR FARMER: I am not applying that he pay his own costs, I am applying for an order for the prosecution costs.

THE VICE PRESIDENT: Against the appellant, who is on legal aid. It would be a very unusual order.

MR FARMER: With respect, my Lord, no, the usual practise is that if he has the means to pay a contribution to the prosecution costs, it is general practice that he does.

MR JUSTICE WRIGHT: We have no evidence as to what his means are.

MR FARMER: All I can say, on the issue of means, is that he had sufficient means to pay a contribution in the court below.

MR SPENCER: I am trying to see if he is here, he is not. I am in extreme difficulty, I know not of his current state of affairs at all.

THE VICE PRESIDENT: Mr Farmer, did you give notice to the appellant that this application was going to be made?

MR FARMER: I did not give notice but it is well established. My learned friend well knows that it is, these days, always the instructions of the Crown Prosecution Service to apply for costs.

THE VICE PRESIDENT: Are you speaking in first instance or in this Court? Certainly it is not the experience of this Court.

MR FARMER: Usually when I have found myself in this situation, the defendant has finished with a custodial sentence, and I cannot actually recall, in this situation, where a defendant has not received a custodial sentence - there may have been, I cannot remember it.

THE VICE PRESIDENT: You are not seeking an Attorney-General's Reference by the back door?

MR FARMER: Not at all, I am instructed to ask, I am asking. He is at liberty, and I know that certainly at the time of the Crown Court in January or February he had means to pay. That is what I am going on.

THE VICE PRESIDENT: We shall not accede to Mr Farmer's application for costs. We add this. If, in future, in this Court, the question arises of seeking an order for costs against a legally aided appellant, it will be in everybody's interest if the prosecution give notice of the intention to make that application to those, at least to counsel for the appellant.