R v Brown [1993] UKHL 19, [1994] 1 AC 212[1] is a House of Lords judgment which re-affirmed the conviction of five men for their involvement in consensual unusually severe sadomasochistic sexual acts over a 10-year period.

Each appellant (having had legal advice) pleaded guilty to the offence when the trial judge ruled that consent of the victim was no defence.

The question approved and certified as in the public interest on appeal was whether the prosecution had to prove (in all similar cases) a lack of consent on the recipient's part.

[3]The Lords – by a bare majority, two out of five dissenting – answered this in the negative, holding that consent could not be a defence to these (typically overlapping) offences.

Lord Templeman stated: It is not clear to me that the activities of the appellants were exercises of rights in respect of private and family life.

But assuming that the appellants are claiming to exercise those rights I do not consider that Article 8 invalidates a law which forbids violence which is intentionally harmful to body and mind.

[1]His judgment examined the acts to be "unpredictably dangerous and degrading to body and mind and were developed with increasing barbarity and taught to persons whose consents were dubious or worthless".

Lord Jauncey stated: Before examining these cases it is interesting to look at the definitions of "Maim" and "Assault" in Hawkins' Pleas of the Crown, 8th ed.

2) as "... any injury whatsoever be it never so small, being actually done to the person of a man in an angry, revengeful, rude, or insolent manner..." ... the conclusion from each of them is clear, namely, that the infliction of bodily harm without good reason is unlawful and that the consent of the victim is irrelevant.

That proposition can be expressed as follows: an assault intended or which is likely to cause bodily harm, accompanied by indecency, is an offence irrespective of consent, provided that the injury is not 'transient or trifling'."...

My Lords, I have no doubt that it would not be in the public interest that deliberate infliction of [ABH] during the course of homosexual sado-masochistic activities should be held to be lawful ...

If it is to be decided that such activities as the nailing by A of B's foreskin or scrotum to a board or the insertion of hot wax into C's urethra followed by the burning of his penis with a candle or the incising of D's scrotum with a scalpel to the effusion of blood are injurious neither to B, C and D nor to the public interest then it is for Parliament with its accumulated wisdom and sources of information to declare them to be lawful.

In the immediately following paragraph of his judgment the Lord Chief Justice [court below us] shows that what he said in Attorney General's Reference (No.

A relaxation of the prohibitions in sections 20 and 47 can only encourage the practice of homosexual sado-masochism 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.

The attempts to rely on this article is another example of the appellants' reversal of the onus of proof of legality, which disregards the effect of sections 20 and 47.

[1]Lord Mustill preferred consensual, private, sexual acts, up to and including involving ABH, to be outside of criminality: In my opinion it should be a case about the criminal law of private sexual relations, if about anything at all ... [leaving aside] repugnance and moral objection, both of which are entirely natural but neither of which are, in my opinion, grounds upon which the court could properly create a new crime.

Thus in Stephen's Digest of the Criminal Law[a] it is stated in article 206 "Everyone has a right to consent to the infliction upon himself of bodily harm not amounting to a maim".

If a line has to be drawn, as I think it must, to be workable, it cannot be allowed to fluctuate within particular charges and in the interests of legal certainty it has to be accepted that consent can be given to acts which are said to constitute [ABH] and wounding.

Accordingly I consider that these appeals should be allowed and the conviction set aside.Legal journals and textbooks of the 21st century tend towards criticism of the majority's analysis and overtones.

[9]Opposition to the judgment (in both consecutive appeals) legally focusses on the dissenting two final judges and the contrasting R v Wilson whereby a husband painfully branded his initials on his wife's buttocks at her request.

[12] Citing R v Brown, law professors Fox and Thomson (2005) argue against non-therapeutic circumcision of boys, to the audience of medical professionals.