A thought on Lord Templeman's judgement in Brown

The case of R v Brown [1994] 2 AC 212 HL is well known in legal circles.  During a raid, police found a tape depicting the various activities of a group of homosexual sado-masochists.  The group was subsequently charged with various offences (actual bodily harm, malicious wounding, and grievous bodily harm) under sections 20 and 47 of the Offences Against the Person Act 1861.  The consent of the 'victims' was used as a defence to the charges, but the trial judge ruled that the prosecution did not have to prove consent.  The group then appealed to the Court of Appeal (which upheld the conviction) and, following that, the House of Lords.

The legal issue to be considered was whether the prosecution had to prove lack of consent before it could establish the group's guilt under ss. 20 and 47 of the 1861 Act.  The Law Lords decided that lack of consent must not be proved (three judges voted to dismiss the appeal, two to allow it), as consent was irrelevant.  In Lord Templeman's judgment, he stated that consent is only relevant in common assault and "the course of some legal activities" which involve violence that results in actual bodily harm, wounding, or grievous bodily harm (i.e. surgery, ritual circumcision, tattooing, ear-piercing, and violent sports including boxing).

It would appear that Lord Templeman's ratio decidendi (reason for the decision) was that to allow the appeal would be injurious to society, as such activities would be offensive and detrimental to public morality - in essence, he adhered to the welfare principle.  Therefore, he decided that sado-masochistic activities should not be afforded the defence of consent.

However, I do not wish to discuss whether this was the right judgement, nor whether it was the right ratio. I merely wish to comment on the motive for using such a ratio.  At the end of his judgement, Lord Templeman states:

"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."

This statement - especially the use of the words "cult" and "evil" - brings into question the objectivity of Lord Templeman's judgement.  Did he apply the law to the facts of the case and therefore find an answer to the legal issue; or did he apply his own morality to the legal issue, find an answer, and then attempt to use the law to support it?  Yes, on hearing a description of some of the activities which the appellants performed, it would be very difficult for an ordinary person not to feel an amount of revulsion.  However, judges should leave such feelings at the courtroom door.

Judges should, as I have said, extract the material facts of the case, apply the applicable law to the facts, and use the outcome to find an answer to the legal issue. 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.