This coming September will mark ten years since I started studying law as an undergraduate at the University of Kent. A period of time often reflected upon through a fog of late night alcoholic binges, a questionable dietary intake, and more fashion faux pas’ (yes plural) than I would care to admit on here. Without question looking back upon it 2003 to 2006 was arguably the best years of my life. A time when I met some wonderful people who have since become my closest friends (including my fiancée) and where I learnt a deep appreciation and love of the law. Whether my feelings concerning the law have been reciprocated over the years since leaving university is another story entirely though.

According to the latest admissions figures student demand for undergraduate law courses seemed to be holding up strongly towards the end of 2012 despite the recenty rise in student fees in England. While Universities in England experienced a quite acute shortfall of student numbers across a whole range of subjects, the figures show that in law, the decline in admissions is a relatively small one, being only 3.7 per cent down from 2011. So law is still seen as an interesting and prosperous profession despite the market already being saturated with talented young graduates unable to find training contracts with solicitor firms or pupilages with barrister’s chambers, and the legal profession as a whole contracting with the recent double dip recession.

When beginning your studies as an undergraduate of law there are many legal textbooks to buy and many more dusty tomes in the law library to sift through, researching the various statutes and the common law. Common law, also known as case law or precedent, is law that is developed by judges through court case decisions and other similar tribunals, as opposed to statutes adopted through the legislative process. It occurred to me at a recent gathering of university and law school friends, all now barristers and solicitors in their own right, that some of the most interesting cases we learnt about in our studies have never been of any use to us in our professional lives. Either through a change in specialisation (after all a lawyer specialising in shipping law is unlikely to ever need to use a case precedent of White v. White [2000] UKHL 54; [2000] 3 WLR 1571), or perhaps by the mere fact that the case in question is now merely academic in nature, we found it peculiar that some of the cases we spent hours obsessing over never appear in our daily vocabulary or thought processes. At the time of studying every case seemed of manifest importance. Now though, not so much.

We decided to play a little game and shout out the first case that came into our head from all those hours of study as the one that just seemed to stick in there. It quickly became obvious that the cases we remembered the most were not the cases we used often in our offices but ones that for one reason or another just stayed buried within our collective subconciouses. The one case that jumped out at me in particular was that of R v Brown.

R v Brown [1993] 2 All ER 75 is a House of Lords judgment in which a group of five men were convicted for their involvement in consensual sadomasochistic sexual acts over a 10 year period. While none of these individuals complained against any of the acts in which they were involved, they were uncovered by an unrelated police investigation and were subsequently convicted of “unlawful and malicious wounding” and “assault occasioning actual bodily harm” contrary to sections 20 and 47 of the Offences against the Person Act 1861. Upon conviction, the individuals argued that they could not be convicted under the Offences against the Person Act 1861, as they had in all instances consented to the acts they engaged in. The key issue facing the Court was whether consent was a valid defence to assault in these circumstances, to which the Court, by a bare majority, answered in the negative holding that consent could not be a defence to offences under sections 20 and 47 of the Act.

Lord Templeman in his judgment said that; “Society is entitled and bound to protect itself against a cult of violence. Pleasure derived from the infliction of pain is an evil thing. Cruelty is uncivilised. I would answer the certified question in the negative and dismiss the appeals of the appellants against conviction.”

While Lord Lowry went on to say in his judgment that; “What the appellants are obliged to propose is that the deliberate and painful infliction of physical injury should be exempted from the operation of statutory provisions the object of which is to prevent or punish that very thing, the reason for the proposed exemption being that both those who will inflict and those who will suffer the injury wish to satisfy a perverted and depraved sexual desire. Sadomasochistic homosexual activity cannot be regarded as conducive to the enhancement or enjoyment of family life or conducive to the welfare of society. A relaxation of the prohibitions in sections 20 and 47 can only encourage the practice of homosexual sadomasochism and the physical cruelty that it must involve (which can scarcely be regarded as a “manly diversion”) by withdrawing the legal penalty and giving the activity a judicial imprimatur.”

Meanwhile Lord Mustill’s dissenting judgment stated that; “The issue before the House is not whether the appellants’ conduct is morally right, but whether it is properly charged under the Act of 1861. When proposing that the conduct is not rightly so charged I do not invite your Lordships’ House to endorse it as morally acceptable. Nor do I pronounce in favour of a libertarian doctrine specifically related to sexual matters. Nor in the least do I suggest that ethical pronouncements are meaningless, that there is no difference between right and wrong, that sadism is praiseworthy, or that new opinions on sexual morality are necessarily superior to the old, or anything else of the same kind. What I do say is that these are questions of private morality; that the standards by which they fall to be judged are not those of the criminal law; and that if these standards are to be upheld the individual must enforce them upon himself according to his own moral standards, or have them enforced against him by moral pressures exerted by whatever religious or other community to whose ethical ideals he responds. The point from which I invite your Lordships to depart is simply this, that the state should interfere with the rights of an individual to live his or her life as he or she may choose no more than is necessary to ensure a proper balance between the special interests of the individual and the general interests of the individuals who together comprise the populace at large. Thus, whilst acknowledging that very many people, if asked whether the appellants’ conduct was wrong, would reply “Yes, repulsively wrong”, I would at the same time assert that this does not in itself mean that the prosecution of the appellants under sections 20 and 47 of the Offences against the Person Act 1861 is well founded.”

The criminalisation of the defendant’s behaviour was later affirmed by the European Court of Human Rights when Brown was considered at the supranational level as Laskey v UK (1997) 24 E.H.R.R. 39 where the defendants in Brown argued before the European Court of Human Rights, that their right to privacy under Article 8 of the European Convention on Human Rights had been breached. The European Court of Human Rights unanimously ruled that no violation of Article 8 had occurred because the amount of physical or psychological harm that the law allows between any two people, even consenting adults, is to be determined by the State that the individuals live in, as it is the State’s responsibility to balance the concerns of public health and well-being with the amount of control a State should be allowed to exercise over its citizens.

The law following Brown suggests that consensual assault causing ‘harm’ above the level of assault, such as in sadomasochistic sex, is prima facie unlawful unless such behaviour falls within one of the exceptional categories grafted by the common law, which would subsequently legalise the conduct in question.

There has been much academic criticism of the judgment in R v Brown. How can a court legislate for what goes on in the bedroom between consenting adults? Comparisons could be drawn with the Buggery Act 1533, under the reign of Henry VIII, or the Labouchere Amendment of 1885, which prohibited gross indecency between males, a broad term that was understood to encompass most or all male homosexual acts.

“The sadomasochists might argue that the telos of the participants’ activities in sadomasochism is merely to achieve sexual gratification. But every time they want to achieve the ulterior aim of sexual gratification, they need to harm each other. The harm has to be repeated each time the recipient wants to receive sadomasochistic pleasure. The two are inseparable—the sexual gratification can only be achieved while the harm is being inflicted. Per contra, adornment procedures only involve a one-off wounding, burning, etc., which results in a long-term benefit. There is nothing unreasonable about preventing people from repeatedly inflicting grievous bodily harm upon others, merely because they want to repeat the ephemeral sexual thrill it gives them. Nonetheless, it seems that this argument should not apply to actual bodily harm. Those who regularly inflict actual bodily harm on themselves by smoking and drinking excessively are not criminalized, nor are those who supply them with the instruments of harm. Similarly, professional athletes regularly subject their bodies to actual bodily harm, but recover.”

– Dennis J. Baker, Glanville Williams Textbook of Criminal Law, (London: Sweet & Maxwell, 2012)

I would like to think that the reason this case in particular has stayed with me is that it is a fascinating case full of academic arguments surrounding state intervention into our private lives and judges applying their own morals onto the actions of consenting adults. On the other hand perhaps it was just the immature me finding the name of the case somewhat amusing given the subject matter and the defendants that were involved. I would like to think that it was the former rather than the latter but I cannot really be sure after a decade of learning.

I suppose to bring this post to a conclusion, or indeed to perhaps get to the point of the matter in question, I would offer a small piece of advice to any prospective or current law students out there either beginning their undergraduate degrees or contemplating post-graduate studies such as the LPC. While the studying can be long, arduous, and tough in places, please try to enjoy it. There is a part of me that deeply envies you, knowing that you will soon come across such case as R v Brown or Carlill v Carbolic Smoke Ball Company [1893] EWCA Civ 1 or even Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310. The law is and will remain a fascinating subject to delve into. It is about society, morals, ethics, rights and wrongs, but more importantly I would argue that it is about people, our successes and our faults. Who would not want to spend a few years studying that?

Disclaimer: The views expressed are those of the writer and this article does not constitute legal advice.

Advertisements