By Anosh Ayesha, Lecturer in Criminology and Module Leader, FSB Croydon | Article Date: 3rd August 2026

Introduction

Criminal law is expected to draw clear lines between what is permitted and what is punished. Yet those lines are not always drawn by Parliament alone. Section 47 of the Offences Against the Person Act 1861, which criminalises assault occasioning actual bodily harm, provides an interesting example of where the structure of an offence and the way courts have developed it do not sit entirely comfortably together. Section 47 depends upon an underlying assault or battery which occasions actual bodily harm. This raises a difficult question where the physical act is consensual: if consent can prevent the underlying battery from being unlawful, what happens to the offence built upon it?

This blog explores that tension through R v Brown [1993], where the House of Lords restricted the operation of consent in circumstances involving actual bodily harm and relied heavily upon considerations of public policy. The discussion will first examine the relationship between battery, consent and Section 47 before turning to the reasoning of the majority and dissent in Brown. It will then consider what happens when judicial interpretation moves beyond the mechanics of an offence and begins to determine which forms of consensual harm the law is prepared to tolerate.

At its heart, this is not only a question about consent. It is a question about who draws the boundaries of criminal liability, and what that means for justice within the criminal justice system. By examining judicial law making, public policy and the role of Parliament, this discussion will consider whether the restriction developed around Section 47 represents a necessary development of criminal law or exposes a deeper tension in the way justice itself is constructed and delivered.

The Problem Beneath Section 47

Section 47 of the Offences Against the Person Act 1861 appears simple until consent is placed inside it. The offence does not begin with the injury. It begins with an assault or battery which then occasions actual bodily harm. The defendant need not intend or foresee that harm; the necessary fault lies in the underlying assault or battery.¹ This construction has itself troubled the Law Commission, which has criticised Section 47 for disconnecting the harm that distinguishes the offence from the defendant’s state of mind towards that harm.²

Consent makes that structure even harder to explain. At the level of ordinary battery, genuine consent may mean that there is no unlawful application of force in the first place. This is more than a defence arriving after an offence has been committed. As Moulds explains through the earlier authorities, the traditional position was that an assault with consent may amount to no assault at all because absence of consent forms part of what the prosecution must establish.³ The Law Commission has recognised the same conceptual difficulty and has considered defining physical assault expressly through the absence of consent.⁴ If consent removes the unlawfulness of the foundation, it seems natural to ask what remains for Section 47 to stand upon.

Yet the answer given by the law is not simple. R v Meachen shows that where injury occurs but was neither intended nor foreseen, consent to the physical act can still prevent liability.⁵ Where injury is intended or foreseen, however, Brown may restrict that same consent. The Law Commission has expressly recognised the complexity this creates, observing that the existing Section 47 effectively straddles assault and injury rather than keeping the two concepts separate.⁶ Consent, then, does not simply exist or disappear. Its legal value changes as the law moves from touch to harm, and from harm to the purpose behind it.

Brown: When Consent Was No Longer Enough

It was this tension that came to the surface in R v Brown. The participants willingly engaged in private sadomasochistic activity and no permanent injuries were caused, yet they were prosecuted under sections 47 and 20. The House of Lords, by a majority of three to two, held that the prosecution did not need to prove an absence of consent.⁷

What makes Brown important is not simply that consent was rejected. It is the way the court decided when consent should matter. The 1861 Act does not create a list of morally acceptable reasons for causing bodily harm. The distinction developed through the common law and ideas of public interest. Earlier cases such as R v Coney and Attorney General’s Reference (No 6 of 1980) had already established that consent could lose its legal effect where the conduct was considered harmful to the public.⁸ By Brown, the question had moved beyond whether the participants agreed. The court was deciding whether their agreement was one the criminal law should recognise.

The majority saw little social value in the conduct and placed protection from harm above the autonomy of the participants. Moulds argues that this reasoning reflected a paternalistic approach to sexual autonomy and must also be understood against the social attitudes surrounding sadomasochism at the time.⁹ Lord Mustill’s dissent approached the problem from the other side. His concern was not simply whether the conduct was desirable, but whether an Act passed in 1861 should be interpreted to criminalise consensual private conduct in this way.

That distinction is crucial. The majority could say that it was refusing to create a new exception to an existing rule. The minority could say that the court was extending criminal liability into territory Parliament had never clearly placed there. Giles identifies exactly this problem. In her analysis, the majority marginalised consent and made public policy central to determining when consensual harm could escape criminality. More significantly, she argues that the decision left judges making substantial policy choices on a case by case basis while simultaneously maintaining that major changes in social policy belonged to Parliament.¹⁰ The judges did not merely ask whether harm had occurred. They also had to decide which harm society was prepared to tolerate.

The Problem of Accepted Harm

That becomes difficult when Brown is compared with what the law permits elsewhere. The criminal law does not reject consent every time bodily harm occurs. Surgery deliberately cuts the body. Sport can involve force and foreseeable injury. Horseplay has attracted protection in cases such as R v Jones and R v Aitken.¹¹ These exceptions show that harm alone cannot explain the boundary.

R v Wilson makes the contrast sharper. A husband branded his initials onto his wife’s body at her request, yet the Court of Appeal distinguished Brown and treated the conduct more like tattooing than criminal violence.¹² Moulds identifies this and other exceptions as circumstances in which courts have recognised some legitimate benefit in the activity despite the presence of bodily harm.¹³ This is where the law begins to reveal what it is really judging. One person consents to injury in sport and the law may respect that choice. Another consents to bodily modification and the law may respect that choice. A person consents to injury for sexual gratification and, under Brown, the law may refuse to recognise it. The difference is not consent alone. The difference is what the law thinks the consent is for.

There may be legitimate reasons for those distinctions. Autonomy cannot be absolute. Serious injury, coercion and vulnerability can justify intervention even where consent is claimed. But once liability depends upon whether the activity possesses sufficient social value, public policy begins to enter the mechanics of the offence itself. Arnold sees this as a problem of both autonomy and the rule of law. He argues that the vague language of the 1861 Act has required considerable judicial interpretation and that this becomes particularly concerning where interpretation expands the state’s ability to interfere with personal freedom.¹⁴ The criminal law may protect people from others, but it also needs limits on how far the state can protect people from choices they have freely made.

When Interpretation Becomes Law Making

This is where Brown becomes more than a case about sexual consent. Judges inevitably interpret legislation. An Act from 1861 could never anticipate every circumstance in which it would later operate. Judicial development is therefore necessary. But interpretation and creation are not always the same thing.

In Brown, the statutory words remained the same. What changed was the legal significance given to consent through public policy, recognised exceptions and judicial assessments of social utility. Giles is particularly critical of this process. She argues that the majority failed to produce a coherent general principle and instead left courts with complicated policy assessments while obscuring the extent to which judges themselves were shaping those policies.¹⁵ Arnold reaches the problem from another direction, connecting the uncertainty of the 1861 Act with coherence, autonomy and the limits that the rule of law should place upon state power.¹⁶

This matters because criminal law does more than settle disputes. It condemns conduct. It permits punishment. It can remove liberty. The clearer the power of the state becomes, the clearer the law behind that power should be. The concern is therefore not that judges make law. They always have. The concern is where that law making begins to determine which private choices society considers valuable enough to remain lawful. At that point morality is no longer sitting outside the offence. It is helping to decide whether the offence exists.

What Brown Reveals About the Criminal Justice System

There is an important limit to this criticism. Parliament has now intervened. Section 71 of the Domestic Abuse Act 2021 places the principle concerning consent to serious harm for sexual gratification on a statutory footing.¹⁷ It would therefore be inaccurate to argue that the modern rule rests entirely upon judicial authority. But Parliament’s intervention does not erase the history that came before it. Nor does it codify the whole law of consent. The wider framework still depends upon common law distinctions developed across cases involving fighting, sport, horseplay, body modification and sexual activity.

The Law Commission has recognised the problem created by this structure. When considering reform, it identified two possible approaches: preserve the distinction between Brown and Meachen, or allow consent to the underlying physical assault to answer an aggravated assault as well. It recognised that either route carried difficulties and described the existing Section 47 as perpetuating complications between assault and injury.¹⁸ That is significant because the uncertainty is not merely an academic objection to Brown. It sits inside the construction of the offence itself.

Meachen is significant because it illustrates the constructive structure of Section 47. Where a defendant intends only a consensual battery and neither intends nor foresees actual bodily harm, consent continues to negate the unlawfulness of the foundational battery. Without that unlawful battery, there is no legal foundation upon which Section 47 can be constructively established, even where ABH occurs unexpectedly. Brown therefore does not eliminate the doctrinal significance of consent; rather, it represents a judicial decision that public policy should override the ordinary mechanics of the offence in particular circumstances.

Perhaps that is what Brown reveals most clearly about criminal justice. Justice is not only about protecting people from harm. It is also about knowing why the state is entitled to punish. Courts must interpret. Parliament must legislate. Public policy will inevitably influence both. But when those boundaries become blurred, the criminal law risks becoming difficult to separate from the moral judgment of those applying it.

The question is therefore larger than whether the defendants in Brown should have been convicted. It is whether a criminal justice system can remain coherent when the boundary between consent and criminality depends not only upon what Parliament has prohibited, but upon what judges have decided society should permit.

Conclusion

R v Brown reveals a problem that reaches beyond consent and Section 47. It shows what can happen when the criminal justice system is asked to apply an old statutory offence to questions of autonomy, morality and harm that Parliament did not clearly answer. The courts filled that space through public policy. Perhaps they had to. But in doing so, they did more than interpret where the law stood. They helped decide where the law should stand.

That is where the criminal justice system deserves closer scrutiny. Its power does not end with deciding guilt. It decides when the state may intervene in individual choice, when consent should be respected, and when a person may lose their liberty despite that consent. Such power demands clarity. Yet Brown left a law in which consent may protect harm in one setting and lose its value in another, depending partly upon how the courts understand the purpose and social value of the activity. The problem is not simply inconsistency. It is that morality and public policy can quietly enter the mechanics of criminal liability itself.

Parliament’s later intervention through the Domestic Abuse Act 2021 has given part of this rule a clearer democratic foundation, but it does not erase the wider question Brown exposed. Courts must interpret law, and criminal justice must protect people from harm, but neither function should make the source of criminal liability uncertain. Justice is not achieved simply because someone is punished for conduct society dislikes. It is achieved when the power to punish is exercised through law that is clear, principled and capable of explaining why one person is protected by their consent while another is not. A criminal justice system should stand between power and people. When the boundaries of that power become difficult to see, it is justice itself that becomes harder to defend.

References

1. R v Savage; DPP v Parmenter [1992] 1 AC 699 (HL).

2. Law Commission, Reform of Offences against the Person (Law Com No 361, 2015) para 5.51.

3. Jordan Moulds, ‘Is Society Still Shackled with the Chains of a 1993 England?: Consent, Sado Masochism and R v Brown’ (2015) 1 UniSA Student Law Review 74, 77.

4. Law Commission, Reform of Offences against the Person (Law Com No 361, 2015) paras 5.20–5.25.

5. R v Meachen [2006] EWCA Crim 2414.

6. Law Commission (n 4) paras 5.59–5.64.

7. R v Brown [1993] UKHL 19, [1994] 1 AC 212.

8. R v Coney (1882) 8 QBD 534; Attorney General’s Reference (No 6 of 1980) [1981] QB 715 (CA).

9. Moulds (n 3) 75–79.

10. Marianne Giles, ‘R v Brown: Consensual Harm and the Public Interest’ (1994) 57 MLR 101, 109–10.

11. R v Jones [1987] Crim LR 123; R v Aitken [1992] 1 WLR 1066 (CA).

12. R v Wilson [1996] 2 Cr App R 241 (CA).

13. Moulds (n 3) 79–81.

14. David Arnold, ‘Vagueness, Autonomy, and R v Brown’ (2015) 1 UniSA Student Law Review 101, 105–07.

15. Giles (n 10) 109–10.

16. Arnold (n 14) 105–07.

17. Domestic Abuse Act 2021, s 71.

18. Law Commission (n 4) paras 5.59–5.64.