R v WILSON

General Principle:

Consent will be considered as a defence in cases involving tattoos, body piercing and other personal adornment.

R v Wilson [1996] 2 Cr App R 241

Facts:

A man was convicted of assault causing actual bodily harm, and conditionally discharged, after branding his initials on his wife's buttocks with a hot knife. The wife had fully consented, but the matter had been reported by her doctor.

Ratio:

In cases which involve such decisions between husband and wife, it is not a matter of a criminal investigation. The Court of Appeal decided that there was no logical distinction between this form of marking and legal tattooing. This case stands in stark contrast to the reasoning in R v Brown, and raises the question of whether the consent defence should only be successfully asserted in activities that their Lordship deem permissible. The court may then be said to grant permission, but only on the basis of unreasonable biases or arbitrary prejudices.

Application:

Allowing the Defendant’s appeal, the Court of Appeal said the prosecution had served no useful purpose. There was no evidence that the branding had been any more dangerous or painful than tattooing, and the case was easily distinguishable from those in which real torture had been inflicted.

Analysis:

When can consent be used as a valid defence? Since there is a general interest in inspiring people to participate in sports, any injuries sustained when participating under the rules of the game will not be considered an offence. The Court of Appeal stated in R v Barnes [2005] WLR 910 that criminal action of organised sport should be reserved for cases when the activity was too grave to be classified as criminal. In In R v Jones (1986) 83 Cr App R 375, some boys at a youth club threw two other boys into the air, causing one to have his spleen ruptured and the other to have his arm fractured. They should be allowed to lift the question of consent, according to the Court of Appeal, because boys have already engaged in rough and undisciplined play between themselves. In R v Brown, according to Lord Templeman sexual gratification was not found to be a suitable exception. Only policies and public interest considerations will determine if the protection of consent can be applied to the results of sadomasochistic experiences.

However in R v Wilson [1997] QB 47, on his wife's appeal, the defendant used a hot knife to brand his initials onto her buttocks. He was successful in his argument for consent to a fee under s47. The Court of Appeal decided that there was no logical distinction between this form of marking and legal tattooing. This case stands in stark contrast to the reasoning in R v Brown, and raises the question of whether the consent defence should only be successfully asserted in activities that their Lordship deem permissible. The court may then be said to grant permission, but only on the basis of unreasonable biases or arbitrary prejudices.