MANY generations of law students have listened to lecturers trying to explain why it has been (legally) acceptable to brand your wife's bottom (Wilson 1997 Q.B. 47), but not to put a fish-hook through your close friend's penis (Brown 1994 1 A.C. 212, at 238).The case of R. v Hobday 2025 EWCA Crim 46, 2025 2 Cr.App.R. 11 could have taken us closer to rectifying this awkward conundrum than it did.In Hobday, the victim (aged 17) approached the defendant for drugs and they then had a casual sexual encounter.She used a Stanley knife to begin to carve the initial of the defendant's first name ("M") on her buttock.She asked him to complete it, which he did, and then to make it bleed, which he declined.The victim made no complaint.The defendant was charged with an offence under section 47 of the Offences Against the Person Act 1861.The trial judge distinguished Wilson and declined to direct the jury that consent provided a defence.The Court of Appeal endorsed this approach and upheld the conviction.Since the seminal decision in Brown, harm at the level of actual bodily harm or higher cannot be consented to in law, unless it falls under an exception which amounts to a "good reason" in the public interest.The House of Lords concluded in Brown that the satisfaction of sadomasochistic desires by consenting adults in private was not such a reason and that there was a legitimate public policy aim preventing such conduct from forming an exception.However, the exceptions recognised in Brown are so diverse that no clear principle is discernible, ranging from major medical surgery (frequently involving high levels of "harm") to organised rule-book sports (even where the rule book condones knocking your opponent unconscious).The Court of Appeal's judgment in Wilson, two years after Brown, did not seem significantly removed from Brown.In Wilson, the defendant branded his wife's bottom with his initials at her instigation.However, it was held that this was an "exception" and could be consented toas it was a "personal adornmentakin to a tattoo".But the Court of Appeal's reasoning was questionable.In trying to differentiate between similar activities, neither of any practical use at all, the court emphasised Wilson's taking place in a context of heterosexual marriage, versus amongst homosexual associates.This appeared to create a precedent hinging entirely on moral sensitivities, as opposed to either legal interpretation or common sense.More recently, in BM (2018 EWCA Crim 560, 2018 2 Cr.App.R. 1), the Court of Appeal held that for "extreme body modifications", with no medical justification, consent could not provide a defence, upholding the trial judge's preliminary ruling in relation to three offences of causing 518
Elaine Freer (Sat,) studied this question.