Memorandum submitted by The Spanner Trust (CJ&I 407)
This paper suggests that an amendment be made to the Criminal Justice and Immigration Bill (as presented to Parliament on 26th June 2007) to decriminalize sexual activity in which non-serious injury is caused. This is necessary because existing precedents provide contradictory rulings and contravene the Human Rights Act 1998.
It has been proposed by the Spanner Trust which is an organisation working to remove the criminalization of consensual adult sexual activity. Information about the Trust can be found at http://www.spannertrust.org
1. Sexual Activity which Causes Injury
1.1 Though hard statistics are difficult to come by it is clear that a significant minority of the UK adult population will at some point engage in consensual sexual activity in the course of which some form of intentional injury will occur. This injury may be slight such as small marks, love-bites or bruises. In other cases, where perhaps the use of canes, belts or other implements is involved, actual cuts or abrasions to the skin may be caused.
1.2 However, following the ruling in R. v. Brown and Others (1992) 94 Cr.App. R 302 CA;  1 AC 212 HL, it was held that in these situations, even where no lasting harm or disability was caused, the satisfaction of sexual libido was not a good reason for a person to give his consent to such an injury and, consequently, consent was not a defence to prosecutions brought under various sections of the Offences Against the Person Act 1861.
1.3 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 Brown and Others 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.
1.4. The Trust submits that the level of injury should be similar to that which is generally considered acceptable in games such as football and rugby and other contact sports or cosmetic surgery etc.
1.5 The Trust submits that the majority of legal academic authorities hold that Brown and Others was wrongly decided. The Judges in the House of Lords were split 3:2 in the judgment and if the House of Lords (sitting in its judicial capacity) as presently constituted were to decide the case afresh it would now reach a different decision and such behaviour would not be criminalized.
1.6 The Law Commission, in its 1995 Consultation Paper 139 entitled "Consent in the Criminal Law" specifically reviewed the borderline between sex and violence. In Part XVI it made some general proposals for consultation which are reproduced below.
"2. We provisionally propose that the intentional causing of serious disabling injury to another person should continue to be criminal, even if the person injured consents to such injury or the risk of such injury."
"5. We provisionally propose that the intentional causing of any injury to another person other than serious disabling injury.... (whether or not amounting to "grievous bodily harm" within the meaning of the Offences Against the person Act 1861....) should not be criminal if, at the time of the act or omission causing the injury, the other person consents to the injury of the type caused."
1.7 The present law now means that it is much more difficult for health workers and others to conduct educational programmes of safer sexual practices. For education to be effective it must cover the whole range of sexual activities which the Trust believes are widely practised by a significant minority throughout the community as a whole.
1.8 For the avoidance of doubt the Trustees feel that it is important to emphasize that only consensual adult sexual activity is promoted by the Trust. The emphasis is always on consent which must be continuously present at all times. The Trust was pleased to note the comprehensive definition of consent which is now contained in Sections 74 to 76 of the Sexual Offences Act 2003.
2. Subsequent Case Law
2.1 The original case of Brown and Others established that consent was not a defence when sixteen gay men were prosecuted. In two subsequent cases in the Court of Appeal involving heterosexual couples the Court held that consent was a defence.
2.2 In R v Slingsby  Crim L R 570, where a woman died (from septicaemia) after a man "fisted" her both vaginally and anally whilst wearing a signet ring, the Court of Appeal held that this was merely vigorous sexual activity and that she had consented thereto and this provided the man with a defence. In R v Wilson  2 Cr. App. R 241 a man used a hot butter knife to "brand" his initials on his wife's buttocks and the Court held that she had consented and that the man could plead this as a defence and he was acquitted.
2.3 The Trust is aware of only one successful prosecution after the case of Brown and Others. This was of Stephen Emmett, who was convicted on 29th January 1999 and appealed unsuccessfully on the 18th June 1999 (unreported). In all of those three cases none of the women who received the "injuries" were prosecuted.
2.4 In Brown and Others, the Crown prosecuted all the gay men involved (both those receiving and those inflicting the "injuries"). However, even though the facts in Wilson were identical to the facts of Count 8 of the Indictment in Brown and Others the woman receiving the injuries was not prosecuted. It is acknowledged that in Slingsby the prosecution would have been precluded from prosecuting the woman concerned because she was dead.
3. Human Rights
3.1 The European Convention on Human Rights, adopted into English law in the Human Rights Act 1998, places a positive obligation on the state to ensure that UK law, both in statute and in precedent, is not applied differently according to the sexual orientation of the defendants. Article 14 provides a right for a person to enjoy the other rights without discrimination. Although the Convention does not expressly include sexual orientation as one of the areas in which discrimination is not to be permitted it has now been clearly established that sexual orientation is now included. The authority for this proposition is Ghaidan v Mendoza  4 All E R 1162 in which the Court of Appeal cites the leading ECtHR authority which is Salgueiro v. Portugal. (2001) 31 EHRR 1055.
3.2 Though an appeal by some of the defendants in Brown and Others to the European Court of Human Rights failed, it did so not on the human rights aspects of the appeal but on the basis that it was within the power of the UK government to regulate the private behaviour of its citizens.
3.3 In the cases referred to above the law appears to have been applied differently according to the defendants' sexuality.
3.4 Article 8 of the European Convention on Human Rights states, in effect, that a person has the right to a private life. The Trust obtained the advice of Ben Emmerson Q.C. and Rabinder Singh Q.C. both Counsel from Matrix Chambers which is a leading set specialising in human rights law. They advised that the current law on injury and consensual sexual activity contravenes Article 8 and that the Trust would be likely to succeed if it were to bring a free standing application in the High Court on this matter. A copy of this Opinion is attached hereto.
3.5 The Trust made a submission for the law to be changed when the Sexual Offences Bill was passing through Parliament in 2002 but was advised by the Minister of State at the Home Office that the law of assault should be amended in a Criminal Justice Bill and not in a Bill dealing with Sexual Offences. Therefore the Trust now submits that the Criminal Justice and Immigration Bill is the proper place for such a discrepancy to be remedied.
3.6 The Trust does not seek to legalise consensual adult sexual activity where serious disabling injury occurs. Indeed, the Trust was horrified at the decision reached by the Court of Appeal in Slingsby and believes that the case was wrongly decided. The woman may have consented to having sexual intercourse and to receiving injuries in the course of that sexual act but she could not reasonably be said to have consented to be killed. The Trust believes that any reasonable man engaged is such activity would be aware that "fisting" whilst wearing a signet ring was an extremely dangerous practice and that serious lasting injury or death might be a probable consequence of such an act and that the death was therefore caused by his gross negligence and he should have been convicted of manslaughter. The Trust would have given expert evidence to that effect on behalf of the Crown in that case if it had been called upon to do so. It illustrates the point the Trust makes that education should be available for people engaging in these activities which is precluded by the current law.
4. Sexual Offences Review
4.1 As mentioned above the Trust submitted that the decriminalization should have been made in the Sexual Offences Bill in 2002 but was informed that such an amendment should properly be made in a Criminal Justice Bill. The Trust made a comprehensive submission in February 2001 to the Home Office in response to the Consultation Paper "Setting the Boundaries", published in July 2000. This set out the Trust's arguments in greater detail than in the brief summary above and a copy can be supplied upon request or viewed on the Trust's website at: http://www.spannertrust.org/documents/sexualoffencesreview.asp.
4.2 In the Home Office Consultation Paper, recommendations were made and the relevant recommendation in this case was No.44 which is reproduced below:-
"Recommendation 44: The criminal law should not treat people differently on the basis of their sexual orientation. It should offer protection from all nonconsensual sexual activity. Consensual sexual activity between adults in private that causes no harm should not be criminal."
4.3 The Govenment's Response was published at, and can be downloaded from, www.sexualoffencesbill.homeoffice.gov.uk/sexoffences_conresp.pdf is reproduced below:
"Agree the recommendation.
The criminal law should not be used as an arbiter of private morality but an expression of what is needed to protect society as a whole. There is no good justification for it to be used to regulate consensual sexual behaviour between competent consenting adults where there is no harm to either of them. There is no justifiable reason for treating men and women differently in the criminal law on the basis of their sexual orientation.
This is in accordance with the Government's commitment to the principle of equality before the law and the principles enshrined in the ECHR."
4.4 The Sexual Offences Act 2003 has omitted to deal with this recommendation and the Trust now wishes to see this omission rectified in this Bill.
4.5 The Trust will be happy to answer any specific questions or queries or to supply Trustees to attend any meeting to discuss the reasons why the Trust believes that this amendment is required.
5.1 The solution is for the defence of consent to be available to persons who are adults and engaging in consensual sexual activities which cause injuries which, as described above, are not serious, permanent or disabling. Following the ruling in Brown and Others consent is not a defence to a charge of causing actual bodily harm which is contrary to Section 47 of the Offences Against the Person Act 1861 nor to a charge of wounding or causing grievous bodily harm (with or without intent) which are contrary to Sections 18 and 20 of that Act.
5.2 The solution for the problem produced by the decision in Slingsby is for it to be made clear by Parliament that consent cannot be relied upon as a defence to any assault causing a serious lasting injury or death and paragraph (b) in the proposed amendment would reverse the Court of Appeal decision in Slingsby.
6. Proposed amendment to the Criminal Justice and Immigration Bill
6.1 Amend the Criminal Justice and Immigration Bill to add after s.75 the following:
"Consent as a defence to Assualt
76. A person can consent to physical injury caused either directly or indirectly during sexual activity which would otherwise -
(a) be an offence contrary to Section 47 of the Offences Against the Person Act 1861; or
(b) be an offence contrary either to Section 18 or to Section 20 of that Act unless the injury is a serious lasting injury or causes death;"