Are 50 Shades of Grey still too colourful for the black letter law and for those who cast a light on its darker meaning? In the first of a two-part series, LSS member Dr. Peter Bowen-Walker probes.
In a recent press conference held by the Lord Chief Justice , Frances Gibb of The Times asked the following question:
“Do you agree with [judge and President of the Family Division Sir James] Munby’s recent comments that it is no longer the job of judges to impose morality in the courts and that Christianity should no longer hold sway over other faiths?”
The reply given by the Lord Chief Justice, Lord Thomas, was:
“We are a court where we have to apply the law and the law is essentially a secular law and so, yes, I do agree as it is our duty to apply law which is secular law, we should do that. I think in the past where judges have taken views in relation to what is not law, they sometimes get themselves into difficulties.”
Did the Lord Chief Justice have any particular cases in mind? Are there specific criminalised behaviours which he believes might require reconsideration?
Chapter 1: In the beginning
Some twenty four years ago the police in Manchester arrested sixteen men, in an operation known as “Spanner”.
The men were charged with assault occasioning actual bodily harm contrary to section 47 of the Offences Against the Person Act 1861, and unlawful wounding contrary to section 20 of the same Act.
The headnote for that case, R v Brown, when it reached the House of Lords (as the highest court in the land was then called), recorded:
“The appellants belonged to a group of sado-masochistic homosexuals who over a 10-year period from 1978 willingly participated in the commission of acts of violence against each other, including genital torture, for the sexual pleasure which it engendered in the giving and receiving of pain. The passive partner or victim in each case consented to the acts being committed and suffered no permanent injury. The activities took place in private at a number of different locations, including rooms equipped as torture chambers at the homes of three of the appellants. Video cameras were used to record the activities and the resulting tapes were then copied and distributed amongst members of the group. The tapes were not sold or used other than for the delectation of members of the group.” 
The website of a group of people sympathetic to the defendants, set up shortly after the original conviction, recorded:
“In 1990 sixteen gay men were enjoying a bit of consensual SM [sado-masochism] when the British police broke in and arrested them. A court case was held, “Crown vs Spanner”, which resulted in some of the men being imprisoned. The Tops were convicted of GBH (causing Grevious Bodily Harm) and the Bottoms with aiding and abetting GBH (by consenting to it)”. 
Barely a single student of the criminal law has forgotten the facts of this piercing case. If there is just one case that retains a firm grip on the collective student memory, it tends to be this one.
Once upon a time…
The original declaratory theory of the common law suggested that judges “stated or found” the law, rather than making it , thus promoting the illusion that judges were merely objective servants facilitating the will of Parliament.
A century later a more realistic analysis was formulated by Lord Browne-Wilkinson, who stated:
“…the whole of the common law is judge made and only by judicial change in the law is the common law kept relevant in a changing world.” 
The purpose of this two-part series is to critically explore, in the context of R v Brown, whether Lord Browne-Wilkinson was correct to state that the common law was in fact “kept relevant” in a changing world, especially in relation to consent given during non-normative sexual activity.
Chapter 2: Some context (before we get tied up in other details)
We live in an advanced liberal democracy in which unelected judges openly admit to making law.
For many, this is a cause for concern. After all, judges are only human and despite their sworn oath to “do right to all manner of people after the laws and usages of this Realm without fear or favour, affection or ill will” , it is inevitable that just once in a while even our most competent and conscientious judges will get things wrong and succumb to their own personal biases and preferences.
Normally this would not matter too much because there exist abundant “checks and balances” by way of, for example, appeal to higher courts. And ultimately our sovereign Parliament could step in and democratically remedy any deficiencies, or so the theory goes.
Coincidentally, as I type this article, the very first “same-sex” marriages are taking place in the UK . This new direction of travel towards a more humanistic and inclusive society is welcome as far as the author is concerned and contrasts markedly with the oppressive view of homosexual behaviour espoused by the Wolfenden Report in 1957 , which revealed that the function of the criminal law in relation to homosexual behaviour at the time was:
“to preserve public order and decency, to protect the citizen from what is offensive or injurious, and to provide sufficient safeguards against exploitation and corruption of others, particularly those who are especially vulnerable because they are young, weak in body or mind, inexperienced, or in a state of special, physical, official or economic dependence.”
So, back in 1957 – four years after the elucidation of the structure of the DNA molecule  – the UK was still trapped in a pre-Iron Age conception of human sexuality.
In addition, Parliament would not decriminalise homosexuality until 1967 , instead preferring to continue relying on “Judeo-Christian” values as providing an acceptable normative societal standard.
That standard, enforced on pain of stigmatisation and criminalisation, can be summed up neatly by the following anti-humanistic verses from the Bible:
“The sexually immoral, men who practice homosexuality, […], liars, perjurers, and whatever else is contrary to sound doctrine…” 
“If a man lies with a male as with a woman, both of them have committed an abomination; they shall surely be put to death; their blood is upon them.” 
Chapter 3: Did they all live happily ever after, or did their tortured state end in tears?
The court of first instance found the men guilty, the Court of Appeal upheld their convictions, and the House of Lords summarised the main issue for their consideration as follows:
“My Lords, the authorities dealing with the intentional infliction of bodily harm do not establish that consent is a defence to a charge under the 1861 Act. They establish that the courts have accepted that consent is a defence to the infliction of bodily harm in the course of some lawful activities. The question is whether the defence should be extended to the infliction of bodily harm in the course of sadomasochistic encounters.”
And so it fell to the most senior court in the land to “declare” the law. Could a competent adult give valid consent to have, inter alia, his “genitals tortured” in such a way as to cause some harm (bruising, cuts, grazing, minor bleeding, etc.) which is not permanent? And could the giving of consent by the willing participant amount to a defence for the person who administers the “force”?
In the end the decision was made by a narrow margin, with three of their Lordships upholding the original conviction and two dissenting.
Today, therefore, the consensual infliction of harm on another person for sexual gratification is not an act the law will tolerate. That is the law, and that is how our highest court “declared” sections 20 and 47 of the Offences Against the Person Act 1861 were to be interpreted.
So if you have a 50 Shades of Grey evening planned – beware. You might have your collar felt.
Chapter 4: The moral of the story
One blogger has summarised the outcome as follows:
“When judges start to use their own morality to decide cases, they start to usurp the rule of law. Whether the decision or the ratio was correct or not, the motive was entirely wrong – the appellants were effectively charged with offences contrary to Lord Templeman’s personal morality, not the law of England and Wales – and that is something which should not be tolerated.” 
And according to another commentator, Natalie Connor:
“The circumstances of SM have been misunderstood by the courts […] – SM does not involve ‘assaults occasioning ABH’ at all, and is in fact a legitimate form of sexual expression, deserving of privacy rights, where the law should not purport to interfere.” 
In a submission to Parliament requesting a change in the law concerning consent to harm in sexual activity, the organisation set up to object to the law as it currently stands stated:
“The Trust recognises that a line must be drawn and that consent cannot be allowed as a defence to a really serious injury but in the case of [R v Brown] the line was drawn at what the Trust submits is too low a level such that certain sexual activities producing no lasting harm whatsoever are now criminalized. The Trust contends that there is no justification for this either on grounds of public morals or public health.” 
Why did this judgment become such a whipping boy and a cause célèbre?
In the second article I will explore how other related cases were decided and whether there is any evidence to support the accusation against their Lordships that their judgment was informed by hetero-normative bias leading to what some have claimed were homophobic comments.
I will also explore whether there is any evidence to identify the pervasive presence of the established Church in this judgment. Did it matter for the purposes of the judgment that Lord Templeman was a member of the Ecclesiastical Committee of Parliament, or that Lord Jauncey was a committed member of his Episcopalian Church? Do the use of words such as “evil” and “cult” point us to reasonably asking whether we are all subject to the vicarious rule of the Church through a biased judiciary?
When Lord Lowry stated in his judgment that “…homosexual sado-masochism…[could] scarcely be regarded as a ‘manly diversion’…”, was he overstepping his unelected remit by letting his personal bias run amok through his judgment (contrary to his oath), or was he honestly and diligently “binding and tying” the common law to pre-Iron Age values because that is just what good judges did in the 1990s?
Finally, I will explore the difficulties encountered when attempting to ascribe the R v Brown judgment to other theories (Moralism or Utilitarianism), and I will employ the conclusions to shed some light on why the judgment has caused so much controversy.
A link to Part 2 of this article will appear here in due course.
Update: Part 2 is here.
 Press Conference held by LCJ (Lord Thomas) on 5 November 2013
 R v Brown  2 All ER 75
 Brett MR in Munster v Lamb (1883) 11 QBD 588
 Kleinwort Benson Ltd v Lincoln City Council  4 All ER 513
 The Marriage (Same Sex Couples) Act 2013
 The Report of the Committee on Homosexual Offences and Prostitution (the Wolfenden Report) (Cmnd 247 (1957)) ch 2 para 13)
 And reputedly announced in the Eagle pub in Cambridge – let’s hope the moralists don’t succeed in bringing back prohibition!
 The Sexual Offences Act 1967
 1 Timothy 1:10 Bible, English Standard Version
 Leviticus 20:13
 A contemporary critique of R v Brown and the legal status of consensual sado-masochism, Natalie Connor, http://www.sjol.co.uk/issue-4/a-contemporary-critique-of-r-v-brown-and-the-legal-status-of-consensual-sado-masochism
Dr. Peter Bowen-Walker is a biological scientist, lecturer and a part-time law student with an interest in animal welfare, habitat protection and environmental law. You can read more about him here.
Image credit: http://www.clipartbest.com
Views expressed are not necessarily those of the LSS
Follow the LSS on Twitter @LawSecSoc and stay up to date with everything the LSS is up to by signing up for email alerts on this website’s home page (you can unsubscribe anytime you want)