• In the case of R v Wilson Alan 1997 QB 47 it was found that the trial judge was wrong to find that consent was irrelevant and was no defence to a charge under s.57 Offences Against the Persons Act 1861.
  • The question was raised whether there should be a criminal investigation into consensual acts carried out between husband and wife in the privacy of their own matrimonial home.
  • The Court of Appeal distinguished this case from R v Brown, which the court said involved sado-masochistic encounter and held that it was not in the public interest that activates such as those in Wilson should amount to criminal behaviour. Russell LJ stated that: [c]onsensual activity between husband and wife, the privacy of the matrimonial home, is not, in our judgment, normally a proper matter for criminal investigation let alone criminal prosecution.

Facts of the Case

  • With his wife’s instigation, the appellant branded his initials on her buttocks with a scolding hot knife.
  • He was charged with assault occasioning actual bodily hard contract to section 47 of the Offences against the Persons Act 1861.
  • On submission of no case to answer, the judge at first instance ruled that despite the wife’s consent, he was bound by the authority to direct the jury to convict.
  • In light of that ruling the appellant was not called to give evidence and defence counsel did not make any submissions to the jury.
  • The appellant was convicted.

Issues in R v Wilson Alan 1997 QB 47

  • Whether R v Brown is an authority for the proposition that consent is not a defence to assault occasioning actual bodily harm.
  • Whether a criminal investigation is required where consensual activity between a couple occurs in the privacy of their own home.

Held by Court of Appeal

  • The appeal was allowed.

Russell LJ

  • It was found that there was no evidence that what the appellant did to his wife was any more dangerous or painful than tattooing which, if carried out with consent of an adult, did not involve an offence under section 47 of the 1861 Act although actual bodily harm is committed.
  • It was also found that there was no aggressive intent on the part of the appellant, and it was not in the public interest that such consensual activity between husband and wife in the privacy of a matrimonial home should be a matter from criminal investigation or prosecution under section 47.
  • Consent was a valid defence and therefore the conviction should be quashed.

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