“ A maim was bodily harm whereby a man was deprived of the use of any member of his body which he needed to use in order to fight but a bodily injury was not a maim merely because it was a disfigurement. The act of maim was unlawful because the King was deprived of the services of an able-bodied citizen for the defence of the realm. Violence which maimed was unlawful despite consent to the activity which produced the maiming. In these days there is no difference between maiming on the one hand and wounding or causing grievous bodily harm on the other hand except with regard to sentence. ”

“ But so widely drawn a principle must inevitably be subject to exceptions. For example, children may be subjected to reasonable punishment; people may be subjected to the lawful exercise of the power of arrest; and reasonable force may be used in self-defence or for the prevention of crime. But, apart from these special instances where the control or constraint is lawful, a broader exception has been created to allow for the exigencies of everyday life. Generally speaking, consent is a defence to battery ”

“ It is not surprising that no assault was made out, and the decisions do no more than furnish a useful reminder of the care to be taken before punishing repugnant sexual conduct under laws aimed at violence. Furthermore this theory does not fit the situations at the upper end of the scale. The doctor who hastens the end of a patient to terminate his agony acts with the best intentions, and quite without hostility to him in any ordinary sense of the word, yet there is no doubt that notwithstanding the patient's consent he is guilty of murder. ”

“ It seems to me that the notion of 'consent' fits ill into the situation where there is a fight. It is also very strange that a fight in private between two youths where one may, at most, get a bloody nose should be unlawful, whereas a boxing match where one heavyweight fighter seeks to knock out his opponent and possibly do him very serious damage should be lawful. ”

“ In particular, if it were to be held that as a matter of law all infliction of bodily harm above the level of common assault is incapable of being legitimated by consent, except in special circumstances, then we would have to consider whether the public interest required the recognition of private sexual activities as being in a specially exempt category. ”

“ If repugnance to general public sentiments of morality and propriety were the test, one would have expected proceedings in respect of the most disgusting conduct to be prosecuted with the greater vigour. ”

“ The element of the corruption of youth is already catered for by the existing legislation; and if there is a gap in it which needs to be filled the remedy surely lies in the hands of Parliament, not in the application of a statute which is aimed at other forms of wrongdoing. As regards proselytisation for adult sado-masochism the argument appears to me circular. For if the activity is not itself so much against the public interest that it ought to be declared criminal under the 1861 Act then the risk that others will be induced to join in cannot be a ground for making it criminal. ”

“ I doubt whether it is possible to give a complete list of the situations where it is conceivable that one person will consent to the infliction of physical hurt by another, but apart from those already mentioned only one seems worth considering, namely what one may call 'ordinary' fighting. ”

“ According to the appellants' case, if an accused person charged with wounding relies on consent as a defence, the jury will have to find whether anything more than actual bodily harm was occasioned, something which is not contemplated by s 20. (5) The distinction between common assault and all other attacks on the person is that common assault does not necessarily involve significant bodily injury. It is much easier to draw the line between significant injury and some injury than to differentiate between degrees of injury. ”

“ Nothing could be more absurd or more repellent to the ordinary intelligence than to regard his conduct as comparable with that of a participant in one of those "manly diversions" of which Sir Michael Foster wrote. Nor is his act to be compared with the rough but innocent horse-play in Reg. v. Bruce ( (1847) 2 Cox CC 262) . Always supposing, therefore, that the blows which he struck were likely or intended to do bodily harm, we are of opinion that he was doing an unlawful act, no evidence having been given of facts which would bring the case within any of the exceptions to the general rule. ”

“ The differences between actual bodily harm and serious bodily harm cannot be satisfactorily applied by a jury in order to determine acquittal or conviction.
Counsel for the appellants argued that consent should provide a defence to charges under both ss 20 and 47 because, it was said, every person has a right to deal with his body as he pleases. I do not consider that this slogan provides a sufficient guide to the policy decision which must now be made. It is an offence for a person to abuse his own body and mind by taking drugs. ”

“ Although the law is often broken, the criminal law restrains a practice which is regarded as dangerous and injurious to individuals and which if allowed and extended is harmful to society generally. In any event the appellants in this case did not mutilate their own bodies. They inflicted bodily harm on willing victims. Suicide is no longer an offence but a person who assists another to commit suicide is guilty of murder or manslaughter. ”

“ Thus, when one comes to map out the spectrum of ordinary consensual physical harm, to which the special situations form exceptions, it is found that the task is almost impossible, since people do not ordinarily consent to the infliction of harm. ”

“ What I do say is that these are questions of private morality; that the standards by which they fall to be judged are not those of the criminal law; and that if these standards are to be upheld the individual must enforce them upon himself according to his own moral standards, or have them enforced against him by moral pressures exerted by whatever religious or other community to whose ethical ideals he responds. ”

“ But the injuries given and received in prize-fights are injurious to the public, both because it is against the public interest that the lives and the health of the combatants should be endangered by blows, and because prize-fights are disorderly exhibitions, mischievous on many obvious grounds. Therefore the consent of the parties to the blows which they mutually receive does not prevent those blows from being assaults ... ”

“ Assault is defined as '... an attempt to offer, with force and violence, to do a corporal hurt to another' (see p 110, s 1) and battery as '... any injury whatsoever be it never so small, being actually done to the person of a man in an angry, revengeful, rude, or insolent manner ...' (see p 110, s 2) . It is to be noted that lack of consent of the victim is stated to be a necessary ingredient neither of assault nor of battery. ”

“ They lie at a mid-point between fighting, where the participant knows that his opponent will try to harm him, and the milder sports where there is at most an acknowledgement that someone may be accidentally hurt. In the contact sports each player knows and by taking part agrees that an opponent may from time to time inflict upon his body (for example by a rugby tackle) what would otherwise be a painful battery. By taking part he also assumes the risk that the deliberate contact may have unintended effects, conceivably of sufficient severity to amount to grievous bodily harm. ”

“ On the basis of a statement of Cave J in R v Coney (1882) 8 QBD 534 at 539 and the old authorities on which it was founded the court was of the opinion-:
'If an act is unlawful in the sense of being in itself a criminal act, it is plain that it cannot be rendered lawful because the person to whose detriment it is done consents to it. No person can license another to commit a crime. ”

“ For money, not recreation or personal improvement, each boxer tries to hurt the opponent more than he is hurt himself, and aims to end the contest prematurely by inflicting a brain injury serious enough to make the opponent unconscious, or temporarily by impairing his central nervous system through a blow to the midriff, or cutting his skin to a degree which would ordinarily be well within the scope of s 20 of the 1861 Act. The boxers display skill, strength and courage, but nobody pretends that they do good to themselves or others. ”

“ Thus, although consent is present in both cases the risks of serious violence and public disorder make prize-fighting something which 'the law says shall not be done', whereas the lesser risk of injury, the absence of the public disorder, the improvement of the health and skills of the participants, and the consequent benefit to the public at large combine to place sparring into a different category, which the law says 'may be done'. ”

“ The argument on both sides has proceeded on the basis of earlier authorities that bodily harm means any hurt or injury that is calculated to or does interfere with the health or comfort of the subject but must be more than transient or trifling, that grievous bodily harm means really serious bodily harm and that wounding involves the breaking of the whole skin. Common assault would include any physical touching which did not fall within these categories. ”

“ In cases where life and limb are exposed to no serious danger in the common course of things, I think that consent is a defence to a charge of assault, even when considerable force is used, as, for instance, in cases of wrestling, single-stick, sparring with gloves, football and the like ”

“ QB 715 at 719 where two men quarrelled and fought with bare fists Lord Lane CJ, delivering the judgment of the Court of Appeal, said:
'... it is not in the public interest that people should try to cause or should cause each other bodily harm for no good reason. Minor struggles are another matter. So, in our judgment, it is immaterial whether the act occurs in private or in public; it is an assault if actual bodily harm is intended and/or caused. This means that most fights will be unlawful regardless of consent. ”

“ The line between injuries to the infliction of which an individual could consent and injuries to whose infliction he could not consent must be drawn it was argued where the public interest required. Thus except in the case of regulated sports the public interest required that injuries should not be inflicted in public where they might give rise to a breach of the peace. ”

“ Leaving aside the logic of this answer, which seems to me impregnable, plain humanity demands that a court addressing the criminality of conduct such as that of the present should recognise and respond to the profound dismay which all members of the community share about the apparent increase of cruel and senseless crimes against the defenceless. ”

“ In my opinion sado-masochism is not only concerned with sex. Sado-masochism is also concerned with violence. The evidence discloses that the practices of the appellants were unpredictably dangerous and degrading to body and mind and were developed with increasing barbarity and taught to persons whose consents were dubious or worthless.
A sadist draws pleasure from inflicting or watching cruelty. A masochist derives pleasure from his own pain or humiliation. The appellants are middle-aged men. ”

“ It is an assault deliberately to strike or touch another person other than in self-defence with the intention thereby to cause bodily harm, or a fortiori so to act so that bodily harm is thereby caused intentionally or recklessly. ”

“ None of the appellants however had any medical qualifications and there was, of course, no referee present such as there would be in a boxing or football match.
The basic argument propounded by all the appellants was that the receivers having in every case consented to what was inflicted upon them no offence had been committed against s 20 or s 47 of the 1861 Act. All the appellants recognised however that so broad a proposition could not stand up and that there must be some limitation upon the harm which an individual could consent to receive at the hand of another. ”

“ What the appellants are obliged to propose is that the deliberate and painful infliction of physical injury should be exempted from the operation of statutory provisions the object of which is to prevent or punish that very thing, the reason for the proposed exemption being that both those who will inflict and those who will suffer the injury wish to satisfy a perverted and depraved sexual desire. Sado-masochistic homosexual activity cannot be regarded as conducive to the enhancement or enjoyment of family life or conducive to the welfare of society. ”

“ The assertion was made on behalf of the appellants that the sexual appetites of sadists and masochists can only be satisfied by the infliction of bodily harm and that the law should not punish the consensual achievement of sexual satisfaction. There was no evidence to support the assertion that sado-masochist activities are essential to the happiness of the appellants or any other participants but the argument would be acceptable if sado-masochism were only concerned with sex as the appellants contend. ”

“ Without going into details of all the rather curious activities in which the appellants engaged, it would appear to be good luck rather than good judgment which has prevented serious injury from occurring. Wounds can easily become septic if not properly treated, the free flow of blood from a person who is HIV positive or who has AIDS can infect another and an inflicter who is carried away by sexual excitement or by drink or drugs could very easily inflict pain and injury beyond the level to which the receiver had consented. ”

“ Surgery involves intentional violence resulting in actual or sometimes serious bodily harm but surgery is a lawful activity. Other activities carried on with consent by or on behalf of the injured person have been accepted as lawful notwithstanding that they involve actual bodily harm or may cause serious bodily harm. Ritual circumcision, tattooing, ear-piercing and violent sports including boxing are lawful activities. ”

“ The point from which I invite your Lordships to depart is simply this, that the state should interfere with the rights of an individual to live his or her life as he or she may choose no more than is necessary to ensure a proper balance between the special interests of the individual and the general interests of the individuals who together comprise the populace at large. ”

“ Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily Harm upon any other Person, either with or without any Weapon or Instrument, shall be guilty of a Misdemeanour, and being convicted thereof shall be liable, at the Discretion of the Court, to be kept in Penal Servitude for the Term of Three Years, or to be imprisoned for any Term not exceeding Two Years, with or without Hard Labour ... ”