R v Wilson (1996) 2 Cr App Rep 241
Court of Appeal
(Lord Justice Russell, Mrs Justice Bracewell and The Recorder of Newcastle (Judge Stroyan Q.C.)): February 23, 29, 1996
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,  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.
Donovan (1934) 25 Cr.App.R. 1,  2 K.B. 498, R. v. Brown (1993) 97 Cr.App.R. 44,  1 A.C. 212 distinguished.
[For the defence of consent see Archbold (1996) paras. 19-182 et seq.]
Appeal against conviction
On May 16, 1995, in the Crown Court at Doncaster (Judge Crabtree), the appellant was convicted of assault occasioning actual bodily harm contrary to section 47 of the Offences Against the Person Act 1861, and was conditionally discharged for 12 months. The facts appear in the judgment.
The appeal was argued on February 23, 1996.
Gordon Lakin (assigned by the Registrar of Criminal Appeals) for the appellant.
Roger Birch for the Crown.
February 29. RUSSELL L.J. read the judgment of the Court. This is an appeal against conviction, as of right, on a point of law which has been referred to the Court by the Registrar. On May 16, 1995 the appellant, Alan Thomas Wilson, was convicted by the verdict of the jury, in the Crown Court at Doncaster before His Honour Judge Crabtree. The charge was one of assault occasioning actual bodily harm contrary to section 47 of the Offences Against the Person Act 1861, the particulars being that on May 14, 1994 the appellant assaulted Julie Anne Wilson, thereby occasioning her actual bodily harm. The so-called victim was the wife of the appellant.
The facts were not in dispute. Mrs Wilson, a woman of mature years, did not give evidence. The evidence of a Dr McKenna was read. The only oral evidence heard by the jury was from a police officer who produced the record of an interview with the appellant which was tape-recorded on the afternoon on May 30, 1994. The content of that interview, it was acknowledged, told the whole story.
The police informed the appellant that his wife had been medically examined and that marks had been observed on both her buttocks. On the right buttock, as the photographs before the court disclose, there was a fading scar in the form of a capital letter "W", and on the left buttock, a more pronounced and more recent scar in the form of a capital letter "A". The two letters "A" and "W" were the initials of the appellant.
He at once admitted that he was responsible for the marks. He told the police:
"I put them there. She wanted a tattoo and I did not know how to do a tattoo, but she wanted my name tattooed on her bum and I didn't know how to do it; so I burned it on with a hot knife. It wasn't life threatening, it wasn't anything, it was done for love. She loved me. She wanted me to give her-put my name on her body. As I say, she asked me originally if I would tattoo my name on her. She wanted me to do it on her breasts and I talked her out of that because I didn't know how to do a tattoo. Then she said, 'Well, there must be some way. If you can't do a tattoo, there must be some way' she says. I think her exact words were summat like, 'I'm not scared of anybody knowing that I love you enough to have your name on my body', something of that nature, and between us we hit on this idea of using a hot knife on her bum. I wouldn't do it on her breasts."
The medical evidence simply commented upon the existence of the letter 'A' on the left buttock as having been branded on Mrs Wilson a few days before May 20, 1994. Dr McKenna added: "There was associated bruising around the burn and the skin hadn't fully healed." No reference was made by the doctor to a faded scar on the right buttock.
At the conclusion of the evidence called by the prosecution, defence counsel submitted that his client had no case to answer. The judge, in a ruling of which we have a transcript, after reviewing the facts and authority, concluded as follows:
"The reality that I have to deal with is that on the face of it the majority in the House of Lords in the case of R. v. Brown [(1993) 97 Cr.App.R. 44,  1 A.C. 212], approved of the dicta in the case of Donovan [(1934) 25 Cr.App.R. 1,  2 K.B. 498] and that accordingly until such time as the legislature or the European Court do something about it we are now saddled with a law which means that anyone who injures his partner, spouse, or whatever, in the course of some consensual activity is at risk of having his or her private life dragged before the public to no good purpose.
Sadly, I take the view that I am bound by the majority in the case of Brown and that I would have to, in those circumstances, direct this jury to convict."
Counsel for the appellant, in the light of that ruling, did not call his client and did not make any submissions to the jury, who in due course convicted the appellant. The judge conditionally discharged him for a period of 12 months.
It is effectively against that ruling of the judge that the appeal is brought to this Court. In the court below, and before us, reference was predictably made to Donovan (1934) 25 Cr.App.R. 1,  2 K.B. 498, a decision of the Court of Criminal Appeal, and to R. v. Brown (1993) 97 Cr.App.R. 44,  1 A.C. 212, a decision of the House of Lords. They are the two authorities to which the learned trial judge referred in the observations we have cited.
In Donovan, the appellant, in private, beat a girl of 17 years of age for the purposes of sexual gratification, with her consent. The act had about it an aggressive element. The court held that consent was immaterial. In Brown, the appellants engaged in sadomasochism of the grossest kind, involving, inter alia, physical torture, and as Lord Templeman pointed out: "obvious dangers of serious physical injury and blood infection." The facts of the case were truly extreme.
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 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 1861 Act, 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, at p. 47 and p. 231, Lord Jauncey, at p. 57 and p. 244 and the dissenting speech of Lord Slynn, at p. 85 and p. 277 of the respective reports, all refer to tattooing as being an activity which, if carried out with the consent of an adult, does not involve an offence under section 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 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.
Does public policy or the public interest demand that the appellant's activity should be visited by the sanctions of the criminal law? The majority in Brown clearly took the view that such considerations were relevant. If that is so, then we are firmly of the opinion that it is not in the public interest that activities such as the appellant's in this appeal should amount to criminal behaviour. Consensual activity between husband and wife, in the privacy of the matrimonial home, is not, in our judgment, a proper matter for criminal investigation, let alone criminal prosecution. Accordingly we take the view that the judge failed to have full regard to the facts of this case and misdirected himself in saying that Donovan and Brown constrained him to rule that consent was no defence.
In this field, in our judgment, the law should develop upon a case by case basis rather than upon general propositions to which, in the changing times in which we live, exceptions may arise from time to time not expressly covered by authority.
We shall allow the appeal and quash the conviction. We conclude this judgment by commenting that we share the judge's disquiet that the prosecuting authority thought fit to bring these proceedings. In our view they serve no useful purpose at considerable public expense. We gave the appellant leave to appeal against his sentence. Had it been necessary for us to consider sentence we would have granted the appellant an absolute discharge.