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The Queen

The Queen
– v-

Mr and Mrs Wolowitz had been married for 30 years before they developed a mutual fascination for sado-masochism following an anniversary weekend in Amsterdam in 2010. Upon their return the couple decided that this newly discovered mutual interest could help to revive their love life. They began using a smartphone to video their “sexploits” for their future enjoyment and entertainment. Sometimes the couple expressed their loving feelings for each other by melting candle wax onto each other, using firm slaps to various body parts and, occasionally, engaging in partial strangulation. One night, at her husband’s request, Bernadette Wolowitz used a hot knife to etch a heart containing their initials onto his left buttock. As a result of that evening’s antics Howard Wolowitz sustained bruising to his neck and to most of the sensitive areas of his upper and lower body as well as some bleeding from the “etching” incident. The couple used first-aid to treat the bleeding occasioned to his buttock by the knife wounds without the need for any professional medical intervention.

When their neighbours Amy and Sheldon visited the couple to watch a video of Mr and Mrs Wolowitz’s son who had recently been married, they accidentally began streaming the wrong video and Amy and Sheldon were disgusted by what they saw. The police were anonymously informed of the couple’s bedroom practices and Mrs Wolowitz was charged with offences contrary to sections 47 and 20 of the Offences Against the Person Act 1861.

During the Crown Court trial, Mr Wolowitz refused to testify against his wife and, instead, provided a statement confirming that he had always fully consented to her actions and had done so on the evening when he sustained the knife wounds. The prosecution relied solely upon the video evidence. Feeling bound to follow R v Brown [1993] 2 All ER 75 the trial judge directed the jury that consent was not a defence to actual bodily harm. Bernadette Wolowitz was convicted on both counts.

She appealed against her conviction and, giving the leading judgment in a unanimous Court of Appeal decision, Hardly LJ adopted and expressly approved of the following dicta in ruling that the convictions at trial were unsafe –

“Consensual activity between husband and wife, in the privacy of the matrimonial home, is not, in our judgment, a proper matter for criminal investigation, let alone prosecution.”

The Crown now appeals to the Supreme Court on the following grounds:-

1) In accordance with Lord Templeman’s speech in R v Brown [1993] 2 All ER 75, Mr Wolowitz cannot, as a matter of law, consent to the infliction of such bodily harm as was caused by the Respondent; and

2) In our democratic society it is necessary to criminalise sadomasochistic practices for the protection of health or morals as permitted by Article 8 of the European Convention on Human Rights.

Learning Outcomes Assessed:

Learning outcomes applicable to the assessments are as follows:

• Demonstrate competence in the advocacy skills identified for the module.
• Undertake an analysis of complex legal or factual information in a systematic way and according to the purpose served.
• Recognise and distil arguments from factual or hypothetical information and prioritise them in terms of their relevance and importance.
• Present arguments concisely and persuasively.

1. Please make sure that your arguments identify the authorities that you wish to rely upon
2. produce extracts from any sections or any other authorities that you wish to rely upon with the full name and citation.

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