Consent to GBH: Issues in R v Brown

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Last modified: 28/02/19 Author: Law student

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“The case of R v Brown [1994] 1 AC 212 demonstrates the potential for prejudice to affect outcomes in criminal law cases.” Discuss with particular reference to the issue of consent and to relevant case law.”

The issue of consent plays a key part when charging defendants with any sexual offence, or charging someone with section 47 of the Offences Against the Person Act 1861 (OAPA), as shown in the R v Brown case. Consent is a complex issue, due to if the actus reus and the mens rea are not found present, consent can be used as a defence for the crime at hand. There are many cases where there is the potential for prejudice to take place, which can, in turn, affect the decisions that led to the results of the cases. These notions allow a background for debate and discussions about the results of many case laws.

In R v Brown (1994), a group of homosexuals, who took part in sadomasochistic activities, were found guilty due to the OAPA c.100 section 20 and section 47, after attempting to use consent as a partial defence. Section 20 states that “Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm (GBH) upon any other person, either with or without any weapon or instrument, shall be guilty of a misdemeanour, and being convicted thereof shall be liable”. The defendants stated that the ‘victims’ gave their consent, therefore, appealed the charges, however, the court of appeal denied this due to s.20, and the inability to consent to GBH, and on the ground that prosecution was not required to prove consent.

In R v Wilson (1997), a wife consented to be branded, by a hot knife, on her buttocks by her husband. However, her skin became infected and she went to her doctor, who reported the matter to the police. Her husband was charged with Actual Bodily Harm (ABH) under s.47 OAPA. These charges were dropped after an appeal, due to the branding being similar to tattooing and Article 8 of the European Convention on Human Rights, which provides a right to respect for one’s “private and family life, his home and his correspondence” and “there shall be no interference by a public authority”, as the actions were lawful and occurred in the privacy of a matrimonial home. This case brings up the issue of prejudice that may have occurred in the R v Brown case. This is due to both defendants being convicted of s.47, however, the heterosexual male’s charges were dropped, but the homosexual male’s charges were not. Many people suggest that the prejudice within this case was heightened due to the defendant’s sexuality (J. Herring 2016), as shown by Lord Lowry, who stressed that he would not allow an exception for “sadomasochistic homosexual activity” throughout his judgement, therefore emphasizing that prejudice may have influenced the outcome of the R v Brown case, due to the homosexual nature of the case.

Many would say the R v Brown case was not influenced by prejudice due to the effect it had on society, therefore the results of the case were seen to be in the interest of the public. Lord Templeman stated “Society is entitled and bound to protect itself against a cult of violence.” and “there was no control over the harm that was to be inflicted”.  The activities involved a risk of accelerating the spread of HIV, and wounds becoming septic, due to the free flow of blood, inflicting pain and injury beyond the level to which those had consented. As a result, they should be brought within the 1861 Act in the interest of public health.

In R v Slingsby [1995], the defendant penetrated the complainant’s vagina with his fingers, and in the process accidentally cutting her with the signet ring he had on. This led to the complainant developing septicaemia and dying. The defendant was convicted of manslaughter under section 20 and 47 OAPA.

When comparing R v Brown to R v Slingsby [1995], the harm caused by Brown was intentional and didn’t have any limits, whereas the result of Slingsby’s actions were accidental. In Slingsby, the harm caused was of a larger extent, however, Slingsby’s “actions were seen as lawful and not assault in circumstances where no harm was intended”, with the mens rea not being present, therefore the appeal of sections 20 and 47 OAPA was allowed and the conviction was overturned.

Even though consent was present in both of these cases, the main notion that separates them is the mens rea, the intent to cause harm. This led to the two very different outcomes of these cases, therefore, even though the cases were homosexual vs heterosexual, the deciding factor between these was the intention, therefore prejudice is not shown to affect the outcome of the R v Brown case.

Many people question the issue of consent in R v Brown by comparing it with sports cases, such as R v Barnes [2004]. This is where an amateur footballer seriously injured his opponent’s leg and was charged under section 20 OAPA. The charges were dropped, therefore bringing up the question of, if footballers can consent to GBH, as in this case, then why can’t those in R v Brown use consent as a defence. The difference in Barnes compared to Brown is that there was no intent to injure, therefore failing to meet the requirements of section 20. In addition to this, within the Brown case, there was no social utility, creating the risk of infection, and the spread of HIV. These issues did not take place in the R v Barnes case.

In 2013, Steven Lock was taken to Ipswich Crown Court, after indulging in a Fifty Shades of Grey-inspired sadomasochistic sex session. After the acts had taken place, the victim stated, “I knew there would be pain involved and I knew I wasn’t going to like it but I’d agreed to it and had to follow it through.”. The couple had a safe word in place, red, which was not used therefore the courts had no reason but to acquit the charges against Mr. Lock due to it being ‘consensual activities between adults’. This case shows a strong change in attitudes around sadomasochistic activity, especially how shortly after this case, the conditions of sadism and masochism were cleared from being an indication of mental instability in the Diagnostic and Statistical Manual of Mental Disorders (DSM-5). In R v Brown, safe words were also used, therefore allowing people to withdraw their consent to any activity at any time. However, when it comes to the topic of prejudice, when looking at the extent of harm caused within each case, it comes back to the notion of people being unable to consent to GBH, whereas there is ability to consent to ABH.

When talking about prejudice and R v Brown, there is a huge focus on homosexuality and whether this impacted the judges’ decision on the case. When approaching an issue this big, you have to make sure you are focusing in on every fact that effected the judges’ decision making. After doing that, I believe prejudice did not affect the outcome of the case, purely based on the nature of the acts, the harm they caused, and the use of drugs and alcohol to enforce consent. However, the reasoning used within the Brown case can be seen as outdated, due to today’s society being accepting of different sexualities, and the change in the DRM5 where sadomasochism is no longer scientifically reprehended. It was shown that there was the intent to cause harm, therefore the mens rea and the actus reus were both present, allowing a conviction to be made.


R v Barnes[2004] EWCA Crim 3246

R v Brown [1994] 1 A.C. 212 (HL) (Lord Lowry)

R v Brown [1994] 1 A.C. 212 (HL) (Lord Templeman)

R v Wilson [1997] QB 47 (CA)

R v Slingsby [1995] Crim LR 570        


American Psychiatric Association. (2013). Diagnostic and statistical manual of mental disorders (5th ed.). Arlington, VA: American Psychiatric Publishing.

Herring, J. (2015). Criminal law. 9th ed. London: Palgrave.

WEBSITES: (2017). R V Brown: Where are we now? | North East Law Talk. [online] Available at: [Accessed 22 Nov. 2017]. (2017). Regina v. Brown [1994], House of Lords. [online] Available at: [Accessed 22 Nov. 2017]. (2017). R v Wilson. [online] Available at: [Accessed 22 Nov. 2017].

Kendall, B. (2017). Gardener cleared of assault after Fifty Shades of Grey-inspired. [online] The Independent. Available at: [Accessed 23 Nov. 2017]. (2017). R v Barnes. [online] Available at: [Accessed 23 Nov. 2017] (2017). R v Slingsby – 1995. [online] Available at: [Accessed 23 Nov. 2017]. (2017). Human Rights Act 1998. [online] Available at: [Accessed 22 Nov. 2017]. (2017). Offences Against the Person Act 1861. [online] Available at: [Accessed 22 Nov. 2017].


Roberts, P. (1997) ‘Consent to Injury: How far can you go?’ in Law Quarterly Review 113: 27.

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