R v Wilson (1996) 2 Cr App Rep 241 | Criminal Law Case

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, [1994] 1 A.C. 212. The appellant called no evidence and

was convicted.

Held, allowing the appeal, that (1) Brown is

not authority for the proposition that consent is no defence to a charge under

section 47 of the Offences Against the Person Act 1861 in all circumstances

where actual bodily harm is deliberately inflicted. What the appellant had done,

if carried out with the consent of an adult, did not involve an offence under

section 47, albeit that actual bodily harm was deliberately inflicted. (2)

Consensual activity between husband and wife, in the privacy of the matrimonial

home, is not a proper matter for criminal investigation or prosecution.

Donovan (1934) 25 Cr.App.R. 1, [1934] 2 K.B. 498, R.

v. Brown (1993) 97 Cr.App.R. 44, [1994] 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, [1994]

1 A.C. 212], approved of the dicta in the case of Donovan [(1934) 25

Cr.App.R. 1, [1934] 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, [1934] 2 K.B. 498, a decision of the Court of Criminal

Appeal, and to R. v. Brown (1993) 97 Cr.App.R. 44, [1994] 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.

Appeal

allowed.

Conviction

quashed.