{"id":5149,"date":"2018-10-12T12:38:31","date_gmt":"2018-10-12T12:38:31","guid":{"rendered":""},"modified":"2019-06-17T19:47:23","modified_gmt":"2019-06-17T19:47:23","slug":"consent-wilson","status":"publish","type":"post","link":"https:\/\/www.lawteacher.net\/cases\/consent-wilson.php","title":{"rendered":"R v Wilson (1996) 2 Cr App Rep 241 | Criminal Law Case"},"content":{"rendered":"

R v Wilson (1996) 2 Cr App Rep 241<\/strong><\/p>\n

Court of Appeal<\/h2>\n

(Lord Justice Russell, Mrs Justice Bracewell and The<\/p>\n

Recorder of Newcastle (Judge Stroyan Q.C.)): February 23, 29, 1996<\/p>\n

The appellant<\/p>\n

was charged with assaulting his wife contrary to section 47 of the Offences<\/p>\n

Against the Person Act 1861. In interview with the police the appellant admitted<\/p>\n

using a hot knife to brand the capital letters W on one, and A on the other, of<\/p>\n

his wife’s buttocks. At the close of the prosecution case, the judge ruled that<\/p>\n

there was a case to answer holding that he was bound by R. v. Brown<\/i> (1993) 97 Cr.App.R. 44, [1994] 1 A.C. 212. The appellant called no evidence and<\/p>\n

was convicted.<\/p>\n

Held<\/b>, allowing the appeal, that (1) Brown is<\/p>\n

not authority for the proposition that consent is no defence to a charge under<\/p>\n

section 47 of the Offences Against the Person Act 1861 in all circumstances<\/p>\n

where actual bodily harm is deliberately inflicted. What the appellant had done,<\/p>\n

if carried out with the consent of an adult, did not involve an offence under<\/p>\n

section 47, albeit that actual bodily harm was deliberately inflicted. (2)<\/p>\n

Consensual activity between husband and wife, in the privacy of the matrimonial<\/p>\n

home, is not a proper matter for criminal investigation or prosecution.<\/p>\n

Donovan<\/i> (1934) 25 Cr.App.R. 1, [1934] 2 K.B. 498, R.<\/i><\/p>\n

v. Brown<\/i> (1993) 97 Cr.App.R. 44, [1994] 1 A.C. 212 distinguished.<\/p>\n

[For the<\/p>\n

defence of consent see Archbold (1996) paras. 19-182 et seq.]<\/p>\n

Appeal against<\/h3>\n

conviction<\/p>\n

On May 16,<\/p>\n

1995, in the Crown Court at Doncaster (Judge Crabtree), the appellant was<\/p>\n

convicted of assault occasioning actual bodily harm contrary to section 47 of<\/p>\n

the Offences Against the Person Act 1861, and was conditionally discharged for<\/p>\n

12 months. The facts appear in the judgment.<\/p>\n

The appeal was<\/p>\n

argued on February 23, 1996.<\/p>\n

Gordon Lakin (assigned by the Registrar of Criminal<\/p>\n

Appeals) for the appellant.<\/p>\n

Roger Birch for the Crown.<\/p>\n

February 29.<\/p>\n

RUSSELL L.J. read the judgment of the Court. This is an appeal against<\/p>\n

conviction, as of right, on a point of law which has been referred to the Court<\/p>\n

by the Registrar. On May 16, 1995 the appellant, Alan Thomas Wilson, was<\/p>\n

convicted by the verdict of the jury, in the Crown Court at Doncaster before His<\/p>\n

Honour Judge Crabtree. The charge was one of assault occasioning actual bodily<\/p>\n

harm contrary to section 47 of the Offences Against the Person Act 1861, the<\/p>\n

particulars being that on May 14, 1994 the appellant assaulted Julie Anne<\/p>\n

Wilson, thereby occasioning her actual bodily harm. The so-called victim was the<\/p>\n

wife of the appellant.<\/p>\n

The<\/p>\n

facts were not in dispute. Mrs Wilson, a woman of mature years, did not give<\/p>\n

evidence. The evidence of a Dr McKenna was read. The only oral evidence heard by<\/p>\n

the jury was from a police officer who produced the record of an interview with<\/p>\n

the appellant which was tape-recorded on the afternoon on May 30, 1994. The<\/p>\n

content of that interview, it was acknowledged, told the whole story.<\/p>\n

The<\/p>\n

police informed the appellant that his wife had been medically examined and that<\/p>\n

marks had been observed on both her buttocks. On the right buttock, as the<\/p>\n

photographs before the court disclose, there was a fading scar in the form of a<\/p>\n

capital letter “W”, and on the left buttock, a more pronounced and<\/p>\n

more recent scar in the form of a capital letter “A”. The two letters<\/p>\n

“A” and “W” were the initials of the appellant.<\/p>\n

He at<\/p>\n

once admitted that he was responsible for the marks. He told the police:<\/p>\n

“I<\/p>\n

put them there. She wanted a tattoo and I did not know how to do a tattoo, but<\/p>\n

she wanted my name tattooed on her bum and I didn’t know how to do it; so I<\/p>\n

burned it on with a hot knife. It wasn’t life threatening, it wasn’t anything,<\/p>\n

it was done for love. She loved me. She wanted me to give her-put my name on her<\/p>\n

body. As I say, she asked me originally if I would tattoo my name on her. She<\/p>\n

wanted me to do it on her breasts and I talked her out of that because I didn’t<\/p>\n

know how to do a tattoo. Then she said, ‘Well, there must be some way. If you<\/p>\n

can’t do a tattoo, there must be some way’ she says. I think her exact words<\/p>\n

were summat like, ‘I’m not scared of anybody knowing that I love you enough to<\/p>\n

have your name on my body’, something of that nature, and between us we hit on<\/p>\n

this idea of using a hot knife on her bum. I wouldn’t do it on her<\/p>\n

breasts.”<\/p>\n

The<\/p>\n

medical evidence simply commented upon the existence of the letter ‘A’ on the<\/p>\n

left buttock as having been branded on Mrs Wilson a few days before May 20,<\/p>\n

1994. Dr McKenna added: “There was associated bruising around the burn and<\/p>\n

the skin hadn’t fully healed.” No reference was made by the doctor to a<\/p>\n

faded scar on the right buttock.<\/p>\n

At the<\/p>\n

conclusion of the evidence called by the prosecution, defence counsel submitted<\/p>\n

that his client had no case to answer. The judge, in a ruling of which we have a<\/p>\n

transcript, after reviewing the facts and authority, concluded as follows:<\/p>\n

“The<\/p>\n

reality that I have to deal with is that on the face of it the majority in the<\/p>\n

House of Lords in the case of R. v. Brown<\/i> [(1993) 97 Cr.App.R. 44, [1994]<\/p>\n

1 A.C. 212], approved of the dicta in the case of Donovan<\/i> [(1934) 25<\/p>\n

Cr.App.R. 1, [1934] 2 K.B. 498] and that accordingly until such time as the<\/p>\n

legislature or the European Court do something about it we are now saddled with<\/p>\n

a law which means that anyone who injures his partner, spouse, or whatever, in<\/p>\n

the course of some consensual activity is at risk of having his or her private<\/p>\n

life dragged before the public to no good purpose.<\/p>\n

Sadly, I<\/p>\n

take the view that I am bound by the majority in the case of Brown and that I<\/p>\n

would have to, in those circumstances, direct this jury to convict.”<\/p>\n

Counsel<\/p>\n

for the appellant, in the light of that ruling, did not call his client and did<\/p>\n

not make any submissions to the jury, who in due course convicted the appellant.<\/p>\n

The judge conditionally discharged him for a period of 12 months.<\/p>\n

It is<\/p>\n

effectively against that ruling of the judge that the appeal is brought to this<\/p>\n

Court. In the court below, and before us, reference was predictably made to Donovan<\/i> (1934) 25 Cr.App.R. 1, [1934] 2 K.B. 498, a decision of the Court of Criminal<\/p>\n

Appeal, and to R. v. Brown<\/i> (1993) 97 Cr.App.R. 44, [1994] 1 A.C. 212, a<\/p>\n

decision of the House of Lords. They are the two authorities to which the<\/p>\n

learned trial judge referred in the observations we have cited.<\/p>\n

In Donovan<\/i>,<\/p>\n

the appellant, in private, beat a girl of 17 years of age for the purposes of<\/p>\n

sexual gratification, with her consent. The act had about it an aggressive<\/p>\n

element. The court held that consent was immaterial. In Brown<\/i>, the<\/p>\n

appellants engaged in sadomasochism of the grossest kind, involving, inter alia,<\/p>\n

physical torture, and as Lord Templeman pointed out: “obvious dangers of<\/p>\n

serious physical injury and blood infection.” The facts of the case were<\/p>\n

truly extreme.<\/p>\n

We are<\/p>\n

abundantly satisfied that there is no factual comparison to be made between the<\/p>\n

instant case and the facts of either Donovan<\/i> or Brown<\/i>: Mrs Wilson<\/p>\n

not only consented to that which the appellant did, she instigated it. There was<\/p>\n

no aggressive intent on the part of the appellant. On the contrary, far from<\/p>\n

wishing to cause injury to his wife, the appellant’s desire was to assist her in<\/p>\n

what she regarded as the acquisition of a desirable piece of personal adornment,<\/p>\n

perhaps in this day and age no less understandable than the piercing of nostrils<\/p>\n

or even tongues for the purposes of inserting decorative jewellery.<\/p>\n

In our<\/p>\n

judgment Brown<\/i> is not authority for the proposition that consent is no<\/p>\n

defence to a charge under section 47 of the 1861 Act, in all circumstances where<\/p>\n

actual bodily harm is deliberately inflicted. It is to be observed that the<\/p>\n

question certified for their Lordships in Brown<\/i> related only to a<\/p>\n

“sadomasochistic encounter”. However, their Lordships recognised in<\/p>\n

the course of their speeches, that it is necessary that there must be exceptions<\/p>\n

to what is no more than a general proposition. The speeches of Lord Templeman,<\/p>\n

at p. 47 and p. 231, Lord Jauncey, at p. 57 and p. 244 and the dissenting speech<\/p>\n

of Lord Slynn, at p. 85 and p. 277 of the respective reports, all refer to<\/p>\n

tattooing as being an activity which, if carried out with the consent of an<\/p>\n

adult, does not involve an offence under section 47, albeit that actual bodily<\/p>\n

harm is deliberately inflicted.<\/p>\n

For our part,<\/p>\n

we cannot detect any logical difference between what the appellant did and what<\/p>\n

he might have done in the way of tattooing. The latter activity apparently<\/p>\n

requires no state authorisation, and the appellant was as free to engage in it<\/p>\n

as anyone else.<\/p>\n

We do<\/p>\n

not think that we are entitled to assume that the method adopted by the<\/p>\n

appellant and his wife was any more dangerous or painful than tattooing. There<\/p>\n

was simply no evidence to assist the court on this aspect of the matter.<\/p>\n

Does<\/p>\n

public policy or the public interest demand that the appellant’s activity should<\/p>\n

be visited by the sanctions of the criminal law? The majority in Brown<\/i> clearly took the view that such considerations were relevant. If that is so,<\/p>\n

then we are firmly of the opinion that it is not in the public interest that<\/p>\n

activities such as the appellant’s in this appeal should amount to criminal<\/p>\n

behaviour. Consensual activity between husband and wife, in the privacy of the<\/p>\n

matrimonial home, is not, in our judgment, a proper matter for criminal<\/p>\n

investigation, let alone criminal prosecution. Accordingly we take the view that<\/p>\n

the judge failed to have full regard to the facts of this case and misdirected<\/p>\n

himself in saying that Donovan<\/i> and Brown<\/i> constrained him to rule<\/p>\n

that consent was no defence.<\/p>\n

In this field,<\/p>\n

in our judgment, the law should develop upon a case by case basis rather than<\/p>\n

upon general propositions to which, in the changing times in which we live,<\/p>\n

exceptions may arise from time to time not expressly covered by authority.<\/p>\n

We shall<\/p>\n

allow the appeal and quash the conviction. We conclude this judgment by<\/p>\n

commenting that we share the judge’s disquiet that the prosecuting authority<\/p>\n

thought fit to bring these proceedings. In our view they serve no useful purpose<\/p>\n

at considerable public expense. We gave the appellant leave to appeal against<\/p>\n

his sentence. Had it been necessary for us to consider sentence we would have<\/p>\n

granted the appellant an absolute discharge.<\/p>\n

Appeal<\/p>\n

allowed.<\/p>\n

Conviction<\/p>\n

quashed.<\/p>\n","protected":false},"excerpt":{"rendered":"

R v Wilson (1996) 2 Cr App Rep 241. The appellant was charged with assaulting his wife contrary to section 47 of the Offences Against the Person Act 1861.<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[2],"tags":[85],"class_list":["post-5149","post","type-post","status-publish","format-standard","hentry","category-cases","tag-uk-law"],"yoast_head":"\nR v Wilson (1996) 2 Cr App Rep 241 | Criminal Law Case | LawTeacher.net<\/title>\n<meta name=\"description\" content=\"R v Wilson (1996) 2 Cr App Rep 241. 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The appellant was charged with assaulting his wife contrary to section 47 of the Offences Against the Person Act 1861.","robots":{"index":"index","follow":"follow","max-snippet":"max-snippet:-1","max-image-preview":"max-image-preview:large","max-video-preview":"max-video-preview:-1"},"canonical":"https:\/\/www.lawteacher.net\/cases\/consent-wilson.php","og_locale":"en_GB","og_type":"article","og_title":"R v Wilson (1996) 2 Cr App Rep 241 | Criminal Law Case","og_description":"R v Wilson (1996) 2 Cr App Rep 241. 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