England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT SWANSEA
Judge Morton

		Royal Courts of Justice Strand, London, WC2A 2LL
		20/10/2006

Lord Justice Thomas:

1. The appellant was sent for trial in the Crown Court at Swansea (before H.H.J.Morton and a jury) on an indictment charging him with rape (count 1), indecent assault contrary to s.14(1) of the Sexual Offences Act 1956 (count 2), causing grievous bodily harm with intent contrary to s.18 of the Offences against the Person Act 1861 (count 3) and in the alternative, causing grievous bodily harm contrary to s.20 of the Offences against the Person Act 1861 (count 4)
2. The trial commenced on 19 May 2003. On 22 May 2003, at the end of the prosecution case, the judge directed an acquittal on the count of rape on the basis that there was insufficient evidence of penile penetration. He also gave a ruling to the effect that there was no defence in law to Counts 2 and 4 in view of the decision of this Court in Emmett [1999] EWCA Crim 1710. The appellant changed his plea to guilty in relation to Count 2 (indecent assault contrary to s.14(1) of the Sexual Offences Act 1956) and Count 4 (inflicting grievous bodily harm contrary to s.20 of the Offences against the Person Act 1861). The trial proceeded on Count 3 (causing grievous bodily harm with intent contrary to s.18 of the 1861 Act). He was convicted by the jury.
3. On 23 May 2003 the appellant was sentenced by the judge to 10 years imprisonment for causing grievous bodily harm with intent and to a concurrent sentence of 8 years for indecent assault.
4. An application for leave to appeal against sentence was refused by the single judge and also by the Full Court [2003] EWCA Crim 2890. The appellant instructed new solicitors and counsel and applied in July 2005 for leave to appeal out of time against his conviction over 2 years after his conviction. The single judge granted leave and the necessary extension of time.
5. At the first hearing of the appeal, it was not clear what had transpired between the appellant and counsel who had represented the appellant during the trial; the hearing was therefore adjourned to enable that counsel to set out his recollection for the court.
6. At the conclusion of the second hearing, we allowed the appeal against the convictions on Counts 2 and 4 and the orders made consequential upon his conviction on Count 2, but dismissed the appeal in relation to Count 3, the offence of causing grievous bodily harm with intent for reasons to be given later.

The issue at the trial

7. On the evening of 4 August 2002 the complainant (a 37 year old female) met the appellant. They returned to the complainant's address and he then left in a taxi at 5.10 a.m. the following morning.
8. It was the prosecution case that the appellant had administered to the complainant liquid gammahydroxybutyrate (GHB) (popularly known as the "date rape" drug) which was not then a controlled drug. The appellant then had intercourse with her anally. He inserted a large object into her anus whilst she was unconscious; this caused the complainant very serious injuries.
9. It was the defence case that both the appellant and the complainant had consented to both of them taking GHB; that the appellant with the complainant's consent had used his fingers to penetrate her anus and she had moved vigorously up and down on them. He was unaware of the complainant's injuries when he left her address at 5.10am.

The evidence

10. On the evening of 4 August 2002, having been out drinking with her boyfriend for the day, the 37 year old complainant went to Carmarthen Town Football Club where she met the appellant, who was previously unknown to her. They started a conversation. They left together and went back to the house of the complainant's niece. Then, shortly after midnight, they went by taxi to the complainant's home a mile away.
11. The complainant had no recollection of events after leaving her niece's house save that the appellant was with her at one point on the sofa in her living room. The appellant left her home by taxi at 5.10am that morning. When the complainant awoke around 7am she was in immense pain and was suffering considerable blood loss from her peri-anal area. She went next door to a neighbour and her GP was consulted. She was initially discharged from hospital, but a subsequent hospital examination revealed that she had extensive bruising of the peri-anal area, together with acute splitting of the anal canal area extending into the rectum. The injury was so severe that a colostomy was performed and she was fitted with a colostomy bag.
12. The Consultant Surgeon indicated that the most likely cause of the injury was "fisting" or penetration by a blunt object such as a broom handle or an un-lubricated can.
13. The appellant was arrested later that day. He admitted being in the complainant's company and returning to her house. He said they had kissed, cuddled and fondled each other. He denied having intercourse with her, either vaginally or anally.
14. In a telephone conversation between the appellant and the complainant between her hospital visits and before she knew the extent of her injuries, the complainant asked the appellant whether they had had sex the previous evening. The appellant replied that she had wanted it or enjoyed it. When the complainant said, "No, we didn't", the appellant then replied, "Ok then we didn't".
15. Items of clothing were recovered from the appellant's home. Blood staining was detected on his underpants and trousers, which matched the DNA profile of the complainant. A bottle of liquid was subsequently found in the appellant's vehicle. It contained GHB which was also detected in the complainant's urine sample.
16. The appellant was finally re-arrested in December 2002, when, in interview, he answered "no comment" to all questions put to him.

The appellant's evidence

17. The appellant's evidence, given after the ruling to which we have referred, was that he had met the complainant in a club and described her as "tipsy or high on drugs". He asked the complainant if she was on drugs and she said, "Why. Have you got anything?" The complainant then asked him if he could get her some that night. He told her he used "Ecstasy, liquid ecstasy or salty water" – which is GHB – "and cannabis".
18. They went to the complainant's niece's house and it was clear that her niece did not want them using drugs in her house. The complainant asked him if she could take alcohol with GHB and he told her what the effects were. They finally agreed that he would obtain some drugs, so he went out and bought a Lucozade bottle with some two inches of GHB in it for £5 and went back to the niece's house.
19. When he arrived back the complainant was asking him whether he had been able to get anything. She then got her things together and they left her niece's house. They decided to get a taxi back to the complainant's house and whilst waiting for the taxi, both took half a cupful of the GHB.
20. Back at the complainant's house they became sexually intimate. The complainant was an active and willing participant. She enjoyed penetration of her vagina and anus with his fingers. The complainant ended up astride the appellant with three of his fingers in her anus and his thumb in her vagina. The complainant was thrusting up and down on his fingers for some four or five minutes giving every sign of reaching a climax. She eventually went to her bedroom. He noticed some blood on his fingers and assumed that the complainant was having her period. He asked if this was correct and she said, "It's only a bit, it doesn't matter". He went into her bedroom and noticed she had taken some more of the GHB and he decided to finish off the bottle. There was a little kissing and fondling after that. He stayed until 5am when a taxi arrived to pick him up. He did not know that the complainant was injured when he left her house.
21. He phoned the complainant the next day to ask her out again. The complainant told him she had been to see a doctor and had been advised she had fibroids. She also asked him whether they had done anything the previous evening. He asked, "What do you mean? You enjoyed yourself". She asserted that nothing happened and so he said, "Fine".
22. On arrest, the appellant said he had met the complainant and kissed and cuddled her. He had phoned her and she had said she was suffering from fibroids. Although he had taken more of the GHB than the complainant, he had a reasonably good memory of what had happened that night unlike the complainant.

Expert evidence

23. Both the prosecution and defence called expert evidence from highly qualified surgeons as to the cause of the injury. The defence expert gave evidence that the injuries to the complainant could have been caused by the vigorous moving up and down on the appellant's three fingers inserted into her anus in the manner suggested by the appellant. The prosecution expert's evidence was that it was not possible for the injury to have been caused in that way and that it had been caused by a fist or blunt instrument.

The appeal

24. The appeal involved two distinct issues:

i) Were the convictions on Counts 2 and 4 by reason of the guilty pleas safe, as they followed from the ruling made by the judge?

ii) Was the conviction by the jury's verdict on Count 3 safe, even if the convictions on Counts 2 and 4 were unsafe?

25. We shall first consider the issue in relation to Counts 2 and 4.

I. Counts 2 and 4

The appellant's case

26. As we have already noted, the judge was asked to make his ruling at the end of the prosecution case. At that stage the material part of the defence was set out in the defence statement as:

a) "He fondled her vagina and inserted three fingers into her back passage at her request. She was moving up and down on his fingers.

b) He denies Count 4 on the basis that he did not act unlawfully".

It was clear from the report of the expert who was to be called on behalf of the Defendant and the cross examination of the expert who had been called on behalf of the prosecution that the cause of the really serious injury suffered by the complainant was in issue.

27. Counsel for the defendant (who was not counsel who represented the appellant on this appeal) asked the judge to indicate his preliminary views, in the light of the decision of this court in Emmett (to which we refer at paragraph 36.ii) below), on whether the consent of the victim could be a defence to the offence under s.20 of the Offences against the Person Act 1861 (Count 4) or to the offence of indecent assault (Count 2). Counsel accepted in the course of argument before the judge that Emmett was indistinguishable from the present case and he could therefore not properly argue that, as consent depended upon the nature or severity of the injuries, in view of the severity of the injuries, that consent could be a defence as the activity was unlawful. The defendant would plead guilty, though it would remain his case that the sexual activity was consensual.
28. The Judge ruled that consent could not be a defence where either actual bodily harm was caused or, adopting an objective test, what was done revealed a risk of more than transient or trivial injury. He made clear that, if the appellant gave evidence in accordance with his defence statement, he would rule in this way, following the analysis of Brown (to which we refer in paragraphs 32 and 33 below) made by the Court of Appeal in Emmett. Following this ruling, the appellant pleaded guilty to Counts 2 and 4.
29. It was contended before us, that the judge was incorrect in making that ruling. At that stage the defendant had not given evidence; this was, unlike Emmett, a case where it was the appellant's case that he did not intend to cause injury; moreover at that stage there was no acceptance by the appellant on his account of what had happened that he intended or foresaw any bodily injury, albeit minor, being caused by his actions, namely the insertion of the three fingers into the complainant's anus. In the absence of acceptance by the defendant that he intended some injury or foresaw the risk, the judge could not have ruled that there was no defence in law to the offence under s.20 or the offence of indecent assault under s.14(1). There was, of course, evidence on which a jury could at the appropriate time have concluded that he had such an intention or foresaw such a risk, but that was a question for the jury at the conclusion of the summing up.
30. In the light of that contention, it was necessary to ascertain from counsel who had represented the appellant at trial whether he had considered the issue of whether the appellant had foreseen any bodily injury, however minor, being caused in the manner suggested by the appellant, namely by the insertion of 3 fingers into the complainant's anus and to ascertain the extent of the discussions which counsel had with the appellant prior to his change of plea. Counsel responded to the Court's enquiry by saying that he could not recall what was discussed with the appellant some three years earlier and the notes of his conferences with the appellant did not assist. Given the lapse of time, no criticism can attach to counsel.

Our approach to the ruling on Counts 2 and 4

31. We proceed therefore to consider the appeal on Counts 2 and 4 on the basis that the defendant's case was that, although he accepted that the injuries in fact had been caused by him, (1) the complainant had consented to the insertion of three fingers into her anus and that he had neither intended nor foreseen the risk of injury from that and (2) the injury had been caused by the complainant's vigorous moving up and down on his fingers and not by the insertion of his fist as was the prosecution case.
32. It is well established that the deliberate or reckless infliction of actual bodily harm on another person without good reason is unlawful. Consent can be a good reason, but, as is clear from the speeches in Brown [1994] AC 212 (the sadomasochist case) and in particular that of Lord Mustill, there is no general theory of consent to violence and no step by step analysis of the cases can be sustained.
33. In Brown where those engaged in sadomasochistic activities had pleaded guilty to offences under s.47 and s.20 after a ruling by the judge, the issue for decision was whether the prosecution had to prove lack of consent on the part of the person harmed before guilt could be established under s.47 or s.20 of the Offences Against the Person Act 1861. It was decided by a majority that the infliction of some bodily harm, even with consent, was unlawful, unless the case fell within exceptions established by the court as a matter of public policy. They rejected the argument that there could be any distinction between consent to actual bodily harm and really serious bodily injury. As Lord Jauncey, with whom Lord Lowry agreed, said at page 244

" 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."

In other words, consent, outside the excepted cases is no defence to a charge under s.47 or s. 20, where the ingredients of those offences are otherwise made out. The third member of the majority, Lord Templeman based his view upon the actual or potential risk of harm.

34. The issue of consent in cases of assault was not before the House. It was, however common ground, in contradistinction, that consent was a defence to a charge of indecent assault – see the speech of Lord Mustill at pages 268-9 to which we will refer at paragraph 39.i) below.
35. It is therefore, we think, important to look at the issue separately in relation to Count 4 (the offence under s.20) and Count 2, the offence of indecent assault, although before the trial judge no distinction was drawn between the two offences.

Count 4: s.20 of the Offences against the Person Act

36. In considering the appellant's contention in relation to the offence under s.20 of the Offences against the Person Act 1861, it is, we think helpful to consider the application of the decision in Brown in three subsequent cases:

i) In Wilson [1996] 2 Crim. App. R. 241, the appellant was convicted of an offence under s.47. He had, with his wife's consent, branded his initials onto her buttocks with a hot knife. In allowing the appeal the court said:

"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 regarded as the acquisition of a desirable piece of personal adornment, perhaps in this day and age no less understandable than 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 Act of 1861, in all circumstances where actual bodily harm is deliberately inflicted. It is to be observed that the question certified for their Lordships in Brown related only to a "sadomasochistic encounter". However, their Lordships recognised in the course of their speeches, that it is necessary that there must be exceptions to what is no more than a general proposition. The speeches of Lord Templeman, Lord Jauncey, and the dissenting speech of Lord Slynn all refer to tattooing as being an activity which, if carried out with the consent of an adult, does not involve an offence under s. 47, albeit that actual bodily harm is deliberately inflicted. 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 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 trial judge was referred to this decision, but this was a case of intentional harm, and so of little assistance to the issue in the present appeal.

ii) In Emmett, the defendant and the complainant had lived together and engaged consensually in what was described as "outré" sexual activity. There were two incidents which were the subject of charges under s.47 of the 1861 Act. In the first incident, the defendant deliberately sought to bring about the partial asphyxiation of the complainant by the placing of a plastic bag over her head; she lost consciousness and suffered sub-conjunctival haemorrhages. In the second incident, the defendant deliberately poured lighter fuel over her breasts and ignited it; the complainant suffered a burn injury. The defendant was convicted of offences under s.47, following a ruling by the judge that consent was no defence. Unlike Wilson, there was evidence that the activities in which they were engaged were dangerous and that the defendant was plainly aware of the dangers of actual bodily injury and, in the case of partial asphyxiation, grave danger of brain damage or death. In the circumstances, the court held that consent was no defence:

"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 the assault becomes assault occasioning actual bodily harm, or at some higher level, where the evidence looked at objectively reveals a realistic risk of 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. That 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."

Again this was a case where the defendant was undoubtedly aware of the serious risk of serious injury. On the basis of the defence put forward by the appellant and the basis on which we have proceeded to consider the appeal, it is clear that there was a significant distinction between that case and the present case.

iii) In Barnes [2004] EWCA Crim 3246, [2005] Crim LR 381, the defendant was convicted under s.20 of the 1861 Act in circumstances where, during a football match, he had tackled a member of the opposing side; it was the prosecution case that the tackle was late, unnecessary, reckless and high up the legs. In giving the judgment of the Court, Lord Woolf CJ set out the general principles applicable to the approach of the criminal law to organised sports. Although that is a very different factual context to the present appeal, we think it helpful to refer to two paragraphs:

"7. When no bodily harm is caused, the consent of the victim to what happened is always a defence to a charge. When at least bodily harm is caused, consent is generally irrelevant because it has been long established by our courts that, exceptional situations apart, as a matter of law a person cannot consent to having bodily harm inflicted upon him.

17. In the case of offences against the person contrary to ss. 18 and 20 of the 1861 Act, it is a requirement of the offence that the conduct itself should be unlawful….. In the case of an offence contrary to s. 20, the 1861 Act also requires the conduct to be inflicted "maliciously". In that context, "maliciously" means either intending to cause some bodily harm (however slight) or causing the harm recklessly. (See R v Cunningham [1957] 2 Q.B. 396). "Recklessly" in this context means no more than the defendant foresaw the risk that some bodily harm (however slight) might result from what he was going to do and yet, ignoring that risk, the defendant went on to commit the offending act. (See DPP v Parmenter [1992] 1 AC 699). In a sport like football, anyone going to tackle another player in possession of the ball can be expected to have the necessary malicious intent according to this approach, and in the great majority of criminal cases, the existence of a malicious intent is not likely to be in issue. This being so, in many situations, as Lord Diplock pointed out in R v Mowatt [1968] 1 QB 421 (at pages 426E to 427F), it will only confuse the jury to make unnecessary reference to the word "maliciously" and invite them to consider the improbability that the defendant did not foresee the risk. However this is a subject which it will be prudent for the trial judge to discuss with counsel before he starts his summing up."

A comment on the decision in the Criminal Law Review observes in relation to paragraph 7 of the judgment:

"It is submitted that this is a more desirable approach. Following logically, when D intended to cause only an assault/battery with consent and caused actual bodily harm, the valid defence to the assault/battery at the heart of the actual bodily harm charge should also preclude liability."

37. Barnes is the most relevant of these three cases, as it makes clear that the ingredients of the offence under s.20 must be proved by the prosecution, whether or not consent is in issue. Therefore, as it is an ingredient of the offence under s.20 that the harm or wound be inflicted "maliciously" in the Cunningham sense (as conveniently summarised in Barnes), it is necessary for the prosecution to show that the defendant intended to cause some bodily harm however slight or caused such harm recklessly in the sense that he foresaw the risk that some bodily harm, however slight, might result from what he was going to do and yet, ignoring the risk, he went on to commit the act which caused the harm. In many cases intent or recklessness will not be in issue, but where it is, it is necessary for the prosecution to prove it.

Count 2: Indecent Assault under s.14(1) of the Sexual Offences Act 1956

38. In R v Court [1989] A.C. 28 the intention necessary to commit an indecent assault under s. 14(1) of the Sexual Offences Act 1956 was considered by the House of Lords. Lord Ackner made clear at page 41:

"It was common ground before your Lordships, and indeed it is self evident, that the first stage in the proof of the offence is for the prosecution to establish an assault. The "assault" usually relied upon is a battery the species of assault conveniently described by Lord Lane in Faulkner v Talbot [1981] 1 W.L.R. 1528 at 1534 as "any intentional touching of another person without the consent of that person and without lawful excuse. It need not necessarily be hostile or rude or aggressive, as some of the cases seem to indicate"

It is not necessary to refer further to Court, as there can be no doubt that, if the complainant did not consent to the touching in this case, the appellant intended to commit an assault which any right minded person would think indecent.

39. Against this basic definition it is helpful to consider five decisions, three of which predated Brown and were considered in it.

i) In Donovan [1934] 2 K.B. 498, the defendant was charged with indecent assault and common assault after caning a 17 year old female complainant for the purposes of sexual gratification. It was clear that the complainant suffered actual bodily harm, though the defendant was not charged with an offence under s.47. His defence was consent. The judge directed the jury that the issue was consent or no consent, without giving any guidance on the burden of proof. The court concluded that a direction should have been given on consent, as in the circumstances of the case the jury might reasonably have found consent. The Court then considered the contention (which the prosecution had unsuccessfully made at trial) that it was unnecessary for the prosecution to prove absence of consent and that therefore the failure to give the direction was immaterial. The court rejected this argument:

"Always supposing, therefore, that the blows which he struck were likely or intended to do bodily harm, we are of opinion that he was doing an unlawful act, no evidence having been given of facts which would bring the case within any of the exceptions to the general rule. In our view, on the evidence given at the trial, the jury should have been directed that, if they were satisfied that the blows struck by the prisoner were likely or intended to do bodily harm to the prosecutrix, they ought to convict him, and that it was only if they were not so satisfied, that it became necessary to consider the further question whether the prosecution had negatived consent. For this purpose we think that "bodily harm" has its ordinary meaning and includes any hurt or injury calculated to interfere with the health or comfort of the prosecutor. Such hurt or injury need not be permanent, but must, no doubt, be more than merely transient and trifling."

This decision was approved by the majority in Brown. Although Lord Jauncey accepted that this case and none of the other prior cases had to consider the distinction between the various types of assault, he viewed the case as deciding that the infliction of actual bodily harm was sufficient to negative consent (see p. 244); he was thus examining the case for the purpose of the issue before the House of Lords and not for the purpose of the intent necessary. The decision was, however, subject to closer scrutiny by Lord Mustill at pages 268-9 in an analysis which (as Lord Woolf CJ said in Barnes) was of the highest authority, because Lord Mustill had only dissented as to the result of the application of a public policy test. He concluded:

"Donovan was charged only with indecent assault, and the latter is an offence to which, it is common ground, consent is a defence. Yet the Court of Criminal Appeal proceeded on the basis that the critical level of violence was that of actual bodily harm, and that the jury should have been directed to decide whether he was guilty of facts establishing an offence under s.47 of the Act of 1861: an offence with which he had not been charged. There is something amiss here. What is amiss is that the dictum of Cave J [in Coney] and the old cases said to support it are taken out of their context, which was in each instance the kind of battery regarded for reasons of public policy as being in a special category which is automatically criminal. Plainly the court in Donovan did not put the beating of the complainant into that category, or the appeal would have taken a quite different course."

It is clear that Donovan was a case where there was a deliberate intention to inflict some harm; thus the issue in the present case was not before the court. It is important to note that, as was set out by Lord Mustill, it was common ground in Brown that consent was a defence to a charge to indecent assault (see also the speech of Lord Templeman at page 231 where he made clear that there could be no conviction for the offence of common assault where the victim consented to the assault).

ii) In Attorney-General's Reference No 6 of 1980 [1981] 1 Q.B. 715, 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 consented. Donovan was briefly considered; the court concluded:

" 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 in public; it is an assault if actual bodily harm is intended and/or caused. This means that most fights will be unlawful regardless of consent"

This decision was also approved by the majority in Brown, but in the context to which we have referred. Again this was a case where it is clear there was a deliberate intention to inflict some harm, however slight.

iii) In Boyea [1992] Crim L.R. 574, the defendant inserted his finger into the complainant's vagina and twisted it around inside her; injuries were caused to the labia and an internal injury to the vagina, together with bruises and scratches elsewhere on her body. The defendant was charged with indecent assault. The judge directed the jury in conventional terms on the ingredients of an indecent assault; he then directed them that the question whether the complainant consented was irrelevant if they were satisfied that the actions of the appellant were likely or intended to cause harm, which in the context, meant harm that need not be serious or permanent, but which must be more than transient or trifling. It was contended that the jury should have been directed to ask whether the defendant knew or should it have been obvious to him that if he did the act, bodily harm might result. The Court referred to Donovan and to a passage in the speech of Lord Ackner in R v Savage, DPP v Parmenter [1992] 1 AC 699 at 742 F, where he said that the verdict of assault occasioning actual bodily harm might be returned upon proof of an assault together with proof of the fact that actual bodily harm was occasioned by the assault; that it was not necessary for the prosecution to prove that the defendant intended to cause some actual bodily harm or was reckless as to whether such harm would be caused. The court then continued:

"the question whether the act of the defendant was "likely or intended to do bodily harm" to the complainant is to be answered giving the word "likely" its ordinary meaning, that is to say objectively. The question is not equivalent to asking: "Did the defendant inflict the harm recklessly?" We therefore reject this submission by [counsel for the appellant].

After considering the decision in Attorney General's reference No 6 of 1980, the court observed:

"The central proposition in Donovan is in our view consistent with the decision of the court in Attorney-General's Reference. That proposition can be expressed as follows: an assault intended or which is likely to cause bodily harm, accompanied by indecency, is an offence irrespective of consent, provided that the injury is not "transient or trifling"…..

We would, however, say this. The court must take into account that social attitudes have changed over the years, particularly in the field of sexual relations between adults. As a generality, the level of vigour in sexual congress which is generally acceptable, and therefore the voluntarily accepted risk of incurring some injury is probably higher now than it was in 1934. It follows in our view that the phrase "transient or trifling" in that quotation must be understood in the light of conditions in 1992 rather than those of nearly 60 years ago. But with this qualification, we have no doubt that the extent of the violence inflicted on the complainant went far beyond the risk of minor injury to which, if she did consent, her consent would have been a defence."

In R v Savage and DPP v Parmenter, Lord Ackner (with whom all the other Lords agreed), although making clear that the prosecution did not have to prove the defendant intended to cause some actual bodily harm or was reckless as to whether such harm would be caused, set out that it was common ground that the mental element required the intention or recklessness necessary for an assault.

This decision was approved by the majority in Brown in the context to which we have referred. However, in his commentary on Boyea, the late Professor Sir John Smith raised the issue that arises in this appeal:

"It is clear that assault and battery require proof of mens rea, namely intention or recklessness. Recklessness here means the conscious taking of a risk, that is Cunningham as distinct from Caldwell/ Lawrence recklessness. … Generally a person who intends to make some impact on the body of another, believing that the other consents to his doing so, does not intend to commit, nor is he reckless whether he commits, a battery. He has no mens rea. If, however, he intends to cause some injury (for which there is no social justification) or he is aware that he is likely to cause such an injury, then he does have mens rea, notwithstanding the fact that he knows the other consents. He now intends to commit, or is reckless whether he commits a battery. What, however, if, though the act is likely to cause injury, he does not realise this? He does not intend to commit a battery, nor is he reckless whether he does so, because he does not foresee that a battery may result. He foresees only a consented to, non injurious impact; and that is not a battery."

We shall return to this decision.

iv) In Slingsby [1995] Crim. L.R. 571, the defendant penetrated the complainant's 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. At the outset of the trial 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. Judge J (as he then was) held:

" 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."

v) In Dica [2004] EWCA Crim 1103, the Court of Appeal had to consider the circumstances in which a prosecution could lie under s.20 of the 1861 Act in relation to the infection with HIV. In the course of giving the judgment of the Court (over which Lord Woolf CJ presided), Judge LJ considered the issue of consent; after commenting on Brown, Emmett, Donovan and Boyea, he said:

"46. These authorities demonstrate that 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. Notwithstanding their sexual overtones, these cases were concerned with violent crime, and the sexual overtones did not alter the fact that both parties were consenting to the deliberate infliction of serious harm or bodily injury on one participant by the other. To date, as a matter of public policy, it has not been thought appropriate for such violent conduct to be excused merely because there is a private consensual sexual element to it. The same public policy reason would prohibit the deliberate spreading of disease, including sexual disease.

47. In our judgement the impact of the authorities dealing with sexual gratification can too readily be misunderstood. 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. …

51. The problems of criminalising the consensual taking of risks like these include the sheer impracticability of enforcement and the haphazard nature of its impact. The process would undermine the general understanding of the community that sexual relationships are pre-eminently private and essentially personal to the individuals involved in them. And if adults were to be liable to prosecution for the consequences of taking known risks with their health, it would seem odd that this should be confined to risks taken in the context of sexual intercourse, while they are nevertheless permitted to take the risks inherent in so many other aspects of everyday life, including, again for example, the mother or father of a child suffering a serious contagious illness, who holds the child's hand, and comforts or kisses him or her goodnight.

40. On a charge of indecent assault, the prosecution has to prove that the touching of the complainant was without consent. It is sufficient for the issue that arises in this case to make clear that if the touching was with consent, then the fact that in the course of the consensual activity some bodily injury, even serious bodily injury, resulted accidentally and unintentionally, then as matter of principle no criminality can attach. It follows in our view that Savage was correctly decided in accordance with principle. We agree with the comments made by the late Professor Sir John Smith on this decision:

"The offence alleged was manslaughter by an unlawful and dangerous act. It was essential for the prosecution to prove that the injuries were caused by an unlawful act, a battery. Because no injury was intended (or, indeed, foreseen) and V consented to the acts done, the judge held that there was no battery. It is respectfully submitted that this is right. In Donovan and in Brown the injuries were intended and consent to the intentional inflection of injury was held to be no defence. Here there was no question of consenting to injury because the parties contemplated no injury."

41. For the reasons we have given, the decision in Savage is not in any way inconsistent with the decisions in Donovan and Attorney-General's Reference No 6 of 1980. However in each of those cases, it is clear that there was an intention to inflict injury; the issue raised in the present case and in Slingsby was not considered. However, one reading of Boyea, might suggest that the argument was apparently directed at the question of whether the test of foresight of injury was objective or subjective and that the Court might appear to have held that if there was an objective risk of harm there could be no consent. However we agree with the view of the decision expressed in Dica that "on close analysis, however, this case was decided on the basis that the victim did not in fact consent". The issue therefore that arose in Slingsby and that arises in this appeal was not before the court in Boyea.

Our conclusion on the ruling made by the judge

42. We have no doubt but that counsel and the judge were all properly trying to narrow the issues in the case. However, at the time the judge made his ruling, on the assumption on which we have proceeded, it was the appellant's case (1) that the complainant had consented to vigorous sexual activity which involved her desire to have him insert fingers into her anus and (2) that the very serious injury caused was as a result of her activity. It could not in the circumstances be correct to hold as a matter of law that consent was no defence either to the charge under s. 20 or the charge of indecent assault, absent the necessary mens rea for these offences.
43. There was an issue, given the appellant's account, as to (1) whether he foresaw or was reckless to the risk of any harm and (2) whether the serious injury that followed was the unintentional and accidental result of consensual sexual activity. The fact that serious injury had in fact occurred, or was objectively likely, did not mean that there was no defence at the time the ruling was given, even though there was ample evidence on which the jury could have concluded that the appellant had the necessary intention to cause injury. The pleas were therefore made on a ruling which was incorrect and the convictions on counts 2 and 4, given the assumption on which we have proceeded, have to be quashed. In the circumstances, it was unnecessary for us to consider the further question as to whether it was only in the case of the deliberate infliction of actual bodily harm that consent was no defence; and whether the position was different if the defendant was only reckless as to causing actual bodily harm where the complainant consented to the risk of that level of harm.

II Count 3

The summing up

44. When the judge summed up the case, he made it clear to the jury that the only issues in relation to Count 3 were causation and whether the appellant intended to do her really serious bodily injury. On the issue of causation, he referred to the evidence of the prosecution expert who said that it was not possible for the injury to have been caused in the way the defendant had suggested, whereas the defence expert was in no doubt that it could have been. He directed the jury that they should convict only if they were sure that the prosecution expert was right on causation.
45. He then turned to the ingredients of the offence and directed the jury:

"The defendant admits causing injury to [the complainant] and he admits that the injury which he caused amounts to really serious injury. The complainant agreeing to what he did, if she agreed, cannot make what he did lawful, because of the injuries caused. So the only issue for you to decide on Count 3 is, whether the defendant intended to do her really serious injury at the time he caused that admittedly very serious injury.

You see the words "with intent to do her grievous bodily harm" … that question of intent is the difference between Counts 3 and 4 - Count 4 being a count to which he has pleaded guilty. There is that extra ingredient in Count 3.

Now it is important to remember in this case that an intention is not necessarily the same thing as a desire. The defendant's desire or wish may have been sexual gratification. But if you are sure the defendant appreciated that really serious injury was a virtual certainty as a result of what he decided to do, then the necessary intention is proved."

46. After giving a clear direction on the effect on proving the intention in the light of the drink and the GHB consumed by the appellant, he continued:

"How does the prosecution prove an intent? Well, you cannot look into a defendant's mind. You have to look at all the circumstances and ask yourselves, are you sure you can draw the conclusion that the defendant formed that intention? And the prosecution case is that the defendant inserted something the size of a fist or greater into [the complainant]'s anus. And what the prosecution say, if you are sure that conclusion can be drawn, the further conclusion follows as a certainty- that is what the prosecution say - namely the defendant must have intended to do really serious injury. Whether you are sure you can draw those two conclusions is entirely a matter for you. …

Now it really comes to this on the facts of this case. You will convict the defendant of Count 3 if, but only if, you are sure of two things: first of all, and that [the prosecution expert]'s opinion is right, namely that it had to be something bigger than three fingers, which means rejecting [the defence expert]'s opinion; and secondly that, in addition to that, you are sure the defendant intended to do really serious injury."

47. After summing up the evidence, he returned to the issue of causation and intention:

"So back to the crucial issue. As I have already said, the way the case has turned out, if [the complainant]'s injuries were or might have been caused as the defendant says, three fingers and four or five minutes of her jumping up and down on them, then you must acquit the defendant of the charge that you have to consider.

I make this obvious point: it is quite clear that on the vital issue there is no direct evidence from [the complainant], because she cannot remember, she had taken GHB provided by the defendant and, on the evidence, taken it willingly; though of course the defendant had to tell her what the effects were. You have heard that the defendant's account of what happened; he was the only other person there.

The prosecution say that that the account just does not hold water, does not really make sense. One of the points they make - it is a matter for you to consider - is that to endure the pain that the injury must have inflicted she would have had to have been virtually unconscious, if not unconscious. It must be (say the prosecution) something bigger than three fingers. And, as I have said, if that is so, the defendant (argues the prosecution) must have intended really serious injury."

Our conclusion on the summing up

48. In our judgment, the summing up made it very clear that it was for the jury to decide whether:

i) The injuries were caused by the insertion of the defendant's fist into the complainant's anus (the prosecution case) or by the vigorous movements of the complainant on the appellant's fingers – The defence case). If the jury were not sure that the injuries were caused in the manner suggested by the prosecution, then he was to be acquitted.

ii) Whether the defendant intended to inflict really serious bodily injury. If they were not sure, he was to be acquitted.

49. These were clearly the issues in respect of Count 3. As was accepted and as is apparent from the decision in Brown, the judge rightly directed the jury that consent could not be a defence if the jury were sure about the prosecution case as to the causation of the injuries and that the appellant had intended to inflict really serious bodily injury. The fact that he had pleaded guilty to Counts 2 and 4 cannot in our view made no difference to the determination by the jury of the issues that were clearly put before them. The issues on Count 3 were quite different and left fairly to the jury.
50. Criticism was made of the passage which we have set out in paragraph 45 where the judge said that the defendant admitted he had caused the injuries. It was submitted that the judge was thereby not putting the issue of causation before the jury. However, as is evident from what we have set out in paragraphs 44 and 47, the judge made it very clear that causation was an issue for them to decide and that they were to acquit the appellant unless they were sure that the prosecution case was correct. All that the judge was doing in the passage criticised was reminding the jury that in fact the defendant did not dispute that the injuries had been caused by his engagement in sexual activity with the complainant; it is clear that the manner of causation was left to the jury.
51. We therefore saw no reason to doubt the safety of the conviction on Count 3 and dismissed the appeal on that Count.