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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
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
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.
defence of consent see Archbold (1996) paras. 19-182 et seq.]
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.
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.
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.
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.
once admitted that he was responsible for the marks. He told the police:
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
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.
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:
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.
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.”
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.
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.
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
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.
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.
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.
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.
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.
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