Twitter outpouring as R v Brown dissenting judge dies

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By Judge John Hack on

Lord Mustill stood up for the right of consenting adults to get involved in a spot of painful S&M — but he was on the losing side


Lawyers are mourning the death of the judge that defended the right of all red-blooded Englishmen to hammer their foreskins to a plank of wood.

Unfortunately for those red-blooded foreskin bashers, Lord Mustill provided only a dissenting voice in the renowned House of Lords 1993 judgment R v Brown.

Liberal-minded lawyers and legal commentators have been taking to social media to praise the judge, who died aged 83 on Friday, and his famous 22-year-old dissenting opinion.

Some were also keen to praise him simply for being a Yorkshireman.

Better known as the “Spanner case”, the ruling involved five men appealing convictions for malicious wounding and assault occasioning actual bodily harm — or ABH, as they’ll know it down Sun Hill Station way — under the Offences Against the Persons 1861.

The crux of the matter assessed whether consenting adults in the latter part of the 20th century should be allowed to engage in a spot of sado-masochist behaviour. Three of the Law Lords — Jauncey, Lowry and Templeman — said no; Lords Mustill and Slynn said all right, then, just don’t tell your mothers and wives about it.

Three beat two and the Spanner chaps remained criminals.

Lord Mustill began his dissenting opinion with a statement that gave a clear indication of how he intended to finish:

“This is a case about the criminal law of violence. In my opinion it should be a case about the criminal law of private sexual relations, if about anything at all.”

Running over about 20 pages, Lord Mustill’s opinion contained some gems, not least those involving detours into medical analysis:

“Some of the practices obviously created a risk of genito-urinary infection, and others of septicaemia. These might indeed have been grave in former times, but the risk of serious harm must surely have been greatly reduced by modern medical science.”

Ultimately, the judge said the legislation itself was not designed to be brought to bear on a group of consenting S&M enthusiasts:

“I ask myself, not whether as a result of the decision in this appeal, activities such as those of the appellants should cease to be criminal, but rather whether the Act of 1861 (a statute which I venture to repeat once again was clearly intended to penalise conduct of a quite different nature) should in this new situation be interpreted so as to make it criminal. Why should this step be taken?

“Leaving aside repugnance and moral objection, both of which are entirely natural but neither of which are in my opinion grounds upon which the court could properly create a new crime …”

Lord Mustill was called to the bar at Gray’s Inn in 1955 and was made up to silk 13 years later.

He was made a Queen’s Bench Division High Court Judge in 1978, and knighted that same year. Between 1985 to 1989 he chaired the Judicial Studies Board, and was a Lord Justice of Appeal from 1985-92. He was a Law Lord for five years from 1992.

Lord Mustill received a PhD in law from St John’s College, Cambridge in 1992, and he remained the honorary of the Cambridge University Law Society.

Read the judgment in full below:

R v Brown