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Individual Research Project Reports

[Writer]

[Institute]

[Date]
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Case of R v Brown and others [1993] 2 All ER 75

Explain and justify the answer with reference to the law

R v Brown is about a law case of sadomasochism (sexual gratification by giving or receiving

pleasure involving the receipt or infliction of pain or humiliation) in which a group of men
involved that consentaneously engaged violence acts against one another, specifically their
private body areas for sexual satisfaction1. This lasted ten years and the police accidentally
discovered that they had been accused of section 47 (assaults that caused physical injuries) and
20 (malicious injuries and serious bodily harm) OAPA 18612. Since the conviction was not a
defence of the crimes committed, its sentence was confirmed in the House of Lords3.

The serious critical examination about Brown by bunting and others that the court’s judgement
was discriminatory or at least as bunting mentions had an anachronous ring to it in the form of
sexual orientation of the those involved appears to have made the view of the case decision and
result unclear. In this case, the term ‘gay’ was deliberately excluded even though it can be easily
inferred as integrating it in the ground realities misses the case’s point4. Whether there were
discriminative judges or not, reaching a decision and drawing conclusions from the judgement’s
wording is nearby the point5. People must not also overlook that Brown was the decision made
by House of Lords.

Majority of the criticism on legislation making the conduct illegal in the modern-day century, as
an example whether or not or to what extent consuming drug privately and for relaxation should
be outlawed and even there is no bodily harm, depends upon the principle of harm. Although
there are arguments supporting this criminalisation principle as to what sort of harm is included,
there is at least an agreement that infliction of bodily harm should be outlawed and
criminalisation6. If then this sort of harm in specific scenarios are to be omitted through consent

1
Kleinplatz, P. (2006). Sadomasochism: Powerful Pleasures. Psychology Press.
2
Alghrani, A., Bennett, R. and Ost, S. (2012). Bioethics, medicine, and the criminal law. Cambridge [UK]: Cambridge
University Press.
3
Alghrani, A., Bennett, R. and Ost, S. (2012). Bioethics, medicine, and the criminal law. Cambridge [UK]: Cambridge
University Press.
4
Johnson, P. (2016). Going to Strasbourg: An Oral History of Sexual Orientation Discrimination and the European
Convention on Human Rights. Oxford University Press.
5
Kleinplatz, P. (2006). Sadomasochism: Powerful Pleasures. Psychology Press.
6
Martin, J. (2014). OCR Criminal Law for A2 Fourth Edition. Hodder Education.
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and the ground reality that they were done confidentially, the sensibility is that they are brought
prior to the courts to ascertain if and in what circumstances these conducts can be omitted from
legislation making it illegal and whether there was actually consent as maintained7.

Thus, it is now clear that it is not the sexual orientation of people involved in the case. Brown
involved in inflicting violence behaviour in order to get sexual satisfaction on many occasions.
As noted by Lord Templeman that although sadomasochism is related to sex, it is also a
violence. He further added that someone who obtains pleasure from inflicting pain on others
draws pleasure from this conduct8. It is clear what the actual concern here was not just the view
of the obtaining sexual pleasure by inflicting pain but its level involved in obtaining sexual
pleasure.

Moreover, there were some safe terms used in the case but with the use of drugs and drink with
the aim of gaining consent and increasing eagerness one questions whether these were pertinent
mainly when the key features of activity were already the bloodletting and branding. The
concern of Lord Templeman was that harm, which to be inflicted, was not controlled by any
measure9. Contraction of HIV was also a real risk although the claim of defendants was very
clear and cautious in their operation as due to AIDS two of their members had expired and one
other was exposed to HIV positive even though it was not transmitted by their activities10. It can
be said that they were fortunate but despite everything it is a risk taking their activities into
consideration. At time it involved excrement.

The consent to aggression can also be differentiated from permission in the sports’ context where
the act of aggression is accidental to the sporting activity or at least is not inflicted for the
players’ pleasure.

Bunting makes mention of the ground reality that the court in this case seems to demonstrate that
since the defendant's activities have no social interest, it cannot question the social utility of the

7
Kleinplatz, P. (2006). Sadomasochism: Powerful Pleasures. Psychology Press.
8
Aggrawal, A. (2008). Forensic and medico-legal aspects of sexual crimes and unusual sexual practices. Boca Raton:
Taylor & Francis.
9
Aggrawal, A. (2008). Forensic and medico-legal aspects of sexual crimes and unusual sexual practices. Boca Raton:
Taylor & Francis.
10
Johnson, P. (2016). Going to Strasbourg: An Oral History of Sexual Orientation Discrimination and the European
Convention on Human Rights. Oxford University Press.
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activity under the pretext of consent. In my opinion, there is no social interest in making a
defence of consent in Brown, and that does not mean that any act obtained with consent will
have no social benefit. In fact, no consent can increase or eliminate any society. What he seems
to be saying is that Brown's special behaviour hurts society and that there should be no social
benefit or reason to ignore the express provisions of the law. Most people in Brown did not find
such benefits.11

Drawing conclusion is easy that the judgement in Brown case was prejudiced towards
sadomasochists but maybe there is reason to limit their activities. Sadomasochism is associated
with sex and violence as well, as noted by Lord Templeman. For violence and injuries in sport,
there are some rules for their protection, in addition to the legal rules applicable to travel,
especially when someone is injured (including in boxing and wrestling), we are looking for
players before of medical care. In the sadomasochists, the injuries are the culminating point of
the incident: if medical attention is sought later, this is part and the desired effect of the activity.
Although it can be said that those who enjoy suffering should not be punished by law, but the
law imposed on the magnitude of the damage may cause voluntary practical pain is not
reasonable12.

The case R v Brown has been widely analysed and arguably has been widely criticised. One
criticism of the current ruling is that the defence conditions provided by the homosexual
sadomasochistic are too low to defend the defendant in this regard.

Another criticism is that this judgment is too moral and is based on the values of homophobic or
heterogeneous norms that judges have. One commentator noted with regret that the case was the
result of these acts in violation of personal morality associated with Templeman, not that of
England and Wales13.

The third criticism is that due to the common law approach to development, the legal area around
consent is an illogical and inconsistent chaos that needs reform. It was indicated by their
Lordships themselves that Parliament was the suitable authority for this task, not the judiciary.

11
Alghrani, A., Bennett, R. and Ost, S. (2012). Bioethics, medicine, and the criminal law. Cambridge [UK]:
Cambridge University Press.
12
Martin, J. (2014). OCR Criminal Law for A2 Fourth Edition. Hodder Education.
13
Martin, J. (2014). OCR Criminal Law for A2 Fourth Edition. Hodder Education.
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Considering the detached and apparently informal list of anticipations, it is not very difficult to
comprehend the court that expressed this reservation.14

In 1998, both the Law Commission and the government introduced a reform package. If the
injury is not "serious", the board of the Legal Commission could have served as a defence to the
MS case. However, after 16 years, they did nothing. Obviously, the government does not have
the will or the courage to change the law, although it is often perceived as chaotic and
inconsistent, with some serious and undesirable consequences.

14
Martin, J. (2014). OCR Criminal Law for A2 Fourth Edition. Hodder Education.
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Explain Montesquieu’s idea of separation of powers. Why it is important and how is it applied
in England and Wales

The idea of separation of powers has influenced majority of the legislators, philosophers, and
Montesquieu (a French jurist) is one of them, who all reviewed and valued this. In 1748,
Montesquieu was the jurist who propose his theoretical concept that there can be no liberty and
there is an end of everything if the government’s power, whether it is legislative, executive or
judicial, were to be used and implemented by the same authority15.

The Britain has a separation of powers, along with there are apparent overlaps with regard to
personnel and functional approach between the three government’s three pillars, Parliament,
executive and courts, which may be discerned. The three pillars should exercise the government
powers, within their own boundaries while maintaining check and balance on one another.16

According to Montesquieu, this notion refers to the existence and function of adequate control
and balance, running in a circle like a man and running after the first17. One should not work in
three areas of government at the same time, and each pillar should not interfere with the other.

After England and Wales approved the Royal Consent Bill, the House of Lords and the House of
Lords promulgated new laws. However, the legislation can be implemented under the
Parliamentary Act of 1911 and 1949, but the House of Lords has already rejected this legislation
for only one year. The following explanation recognises whether the objective of the person who
constitutes the law applies. Throughout the process, judges should not question the political
authority of the legislature to decide which network law should be drafted.18

The British three pillars separating their powers must communicate among themselves and
effectively manage the country. Despite the promulgation of the constitution, the rules must still
be followed to govern the country without any problem, since other people can cause damage to
its inhabitants if the three institutions collide with each other. The Cabinet, through its majority
in the lower house, guides the activities of the central government sector with a decisive
influence on its time, activities and legislative results. The government applies the legislation in

15
Althusser, L. (2007). Politics and History: Montesquieu, Rosseau, Marx. London: Verso.
16
Claus, L. (2005). Montesquieu's Mistakes and the True Meaning of Separation. SSRN Electronic Journal.
17
Althusser, L. (2007). Politics and History: Montesquieu, Rosseau, Marx. London: Verso.
18
Claus, L. (2005). Montesquieu's Mistakes and the True Meaning of Separation. SSRN Electronic Journal.
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the regulatory text in the form of controlled rules. Before the constitutional reform in 2005, the
chief judges, cabinet members and presidents of England and Wales were the presidents of the
courts. It is one of the three main national agencies. This is an exception to the principle of
separation of powers.

There is a clear overlap between the UK’s three pillars, but there is a mechanism of control and
balance. This means that each branch has the eyes of others, and each branch must be protected,
not the people around it. The prime minister may suggest that the queen dissolve the parliament,
but must hold a meeting this year. The Queen can dissolve or refuse to dissolve parliament in
case of emergency. Ministers are responsible for parliamentary responsibility. The House of
Lords is a partial inspection of the paintings. The appointment of the judiciary is recommended
by the Queen on the advice of the magistrate, or by the magistrate, directly by the Magistrates
Court and other junior judges. The superior judicial factor must be chosen by the judicial
committee. Non-professionals must be selected by a group of four people. These people include
non-presidents, presidents of courts and committee chairs. The officials are not members of the
committee. Judges can increase the number of parliamentarians approved by parliament.
Members cannot serve for more than a decade. In exceptional circumstances, a judge may
dismiss a judge for legal reasons. The judges of the High Court must retire at the age of seventy.
The court cannot repeal the law, but the court can verify whether the climate of the document is
real. The 1998 Bill of Rights required courts to review the conduct of all branches in accordance
with the main provisions of the European Convention on Human Rights in order to balance the
three branches. However, Parliament can repeal the Covenant rights in a very specific language.
According to the House of Lords, the court can consult Hansard if the wording of the law is
ambiguous.19

After the reconciliation in 1688, it was considered that the House of Lords maintained a
constitutional balance of power. Life partners were introduced in 1960, but their constitutional
role remains controversial. By convention and law, the House of Lords must rely on the lower
house. Although the House of Commons controls executives, the House of Lords is irresponsible

19
Cameron, M. and Falleti, T. (2005). Federalism and the Subnational Separation of Powers. Publius: The Journal of
Federalism, 35(2), pp.245-271.
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for everyone. All this is to avoid the abuse of British power. Therefore, we can say that when we
try to establish a decentralized country, we must balance it.20

The latest changes made y Gordon Brown in the Constitutional Reform Act of 2005 provides the
latest reforms to strengthen these checks and balances and stop the abuse of power. This is a law
that establishes the modification of the function of a judge and establishes the functions of this
office. Therefore, the role of the judge has undergone tremendous changes, and can now be
shared or the House of Lords21. Other important changes include: Ministers responsible for
defending the independence of the judiciary; introduction of the President of the Supreme Court,
the introduction of a new independent Supreme Court has its own reservation system, its own
budget and its own building, and the abolition of the House of Lords (upper house) The
jurisdiction of appeal.

From the end of 2009, the board of appeal of the British House of Lords transferred to the 12
Supreme Courts of the Supreme Court. When it is established in the first court, there are the
same 12 judges above the Board of Appeals (Lords). Until the transfer of this function and the
staff is completed22, the judge of the Supreme Court may not serve or vote in the upper house or
be a member of the House of Representatives. The monarch will appoint the Supreme Court
recommended by the Prime Minister. The President of the Supreme Court and other senior
judicial officials will be included in the Commission. The recommendations of the Commission
will be presented to the judges23.

The major reason behind why the pragmatic and legal implementation of the separation of
powers idea was given clarity and effect was the Constitutional Reform Act 2005. This Act’s key
aim was to meet a highly different separation of functional activities and personnel between the
legislative body, in the form of judiciary and House of Lords. To do this, the Supreme Court in

20
Cameron, M. and Falleti, T. (2005). Federalism and the Subnational Separation of Powers. Publius: The Journal of
Federalism, 35(2), pp.245-271.
21
Masterman, R. (2010). The Separation of Powers in the Contemporary Constitution. Cambridge: Cambridge
University Press.
22
Masterman, R. (2010). The Separation of Powers in the Contemporary Constitution. Cambridge: Cambridge
University Press.
23
Masterman, R. (2010). The Separation of Powers in the Contemporary Constitution. Cambridge: Cambridge
University Press.
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the UK was created, to supersede the Appellate Committee of the House of Lords, and the Lord
Chancellor from the judicial process was eliminated.
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References

Aggrawal, A. (2008). Forensic and medico-legal aspects of sexual crimes and unusual sexual
practices. Boca Raton: Taylor & Francis.

Alghrani, A., Bennett, R. and Ost, S. (2012). Bioethics, medicine, and the criminal law.
Cambridge [UK]: Cambridge University Press.

Althusser, L. (2007). Politics and History: Montesquieu, Rosseau, Marx. London: Verso.

Cameron, M. and Falleti, T. (2005). Federalism and the Subnational Separation of

Powers. Publius: The Journal of Federalism, 35(2), pp.245-271.

Claus, L. (2005). Montesquieu's Mistakes and the True Meaning of Separation. SSRN Electronic
Journal.

Johnson, P. (2016). Going to Strasbourg: An Oral History of Sexual Orientation Discrimination

and the European Convention on Human Rights. Oxford University Press.

Kleinplatz, P. (2006). Sadomasochism: Powerful Pleasures. Psychology Press.

Martin, J. (2014). OCR Criminal Law for A2 Fourth Edition. Hodder Education.

Masterman, R. (2010). The Separation of Powers in the Contemporary Constitution. Cambridge:

Cambridge University Press.