Courtly love: a bouquet of strangely romantic and erotic case law

The appellant is a lap dancer. I would not, of course, begin to know exactly what that involves. One can guess at it, but could not faithfully describe it. The judge tantalisingly tells us, at paragraph 21 of his judgment, that the purpose is “to tease but not to satisfy”.’

If anyone is teasing without satisfying it seems to be the judge in this case. Judges sitting in court all dressed up in their wigs and gowns are not usually meant to be thinking about sex. Yet in a surprising number of cases that is precisely what they have to do.

In that case it was Lord Justice Ward, giving judgment in the Court of Appeal in Sutton v Hutchinson [2005] EWCA Civ 1773, in which a disappointed businessman was trying to recover thousands of pounds paid to a female escort who wasn’t after all doing it just for love. Another judge, Mr Justice Males, began his judgment in Sargespace Ltd v Eustace [2013] EWHC 2944 (QB) by discussing something called the Hunny Bunnies Club:

Paul Baxendale-Walker (who also goes by the name Paul Chaplin) was formerly a barrister and then a solicitor specialising in tax law. Some people might have found that exciting enough, but since 2005, when he acquired and ran a company making pornographic films in which he also starred, he has been active in the sex industry. He describes himself now as a wealthy man living a playboy lifestyle. Those who are interested can apparently find details in the pages of Loaded magazine, which he purchased in May 2012. His lifestyle involves essentially casual relationships with multiple sexual partners, a group or club of women known as his “hunny bunnies” to whom, in return for their sexual favours, he makes lavish gifts, including money, clothes and holidays, as well as providing flats and cars for their use.’

Whilst envying a fellow practitioner’s fairly radical escape from the clutches of a legal career, one can’t help speculating as to whether his exciting new life involved the use of a device described in Miss Recorder Amanda Michaels’s judgment in Uwug Ltd v Ball (t/a Red) [2013] EWPCC 35 which begins:

‘This is a case relating to design rights and registered design in a sling and a portable frame from which such a sling can be hung, for use during sexual activities involving bondage.’

The law reports, normally so informative, are sadly unable to help us on this question. But it is worth delving in them for some of the human interest they contain.

Unusual love lives are no stranger to the divorce courts, of course, particularly in the old days when it used to be necessary to ‘prove’ adultery, often through elaborate fictions involving evidence from snooping detectives and palpitating hotel chambermaids. Even in more modern times, the law sometimes struggles to keep up with the turbulence of ordinary people’s marital histories. Not that that would have flustered the famous Lord Denning, giving judgment in Eves v Eves [1975] 1 WLR 1338:

‘I will call her Janet because she has had four surnames already. She was married for the first time at the age of 18; but that marriage only lasted about a year. Next at the age of 19 she met a man, Stuart Eves. He was a married man. They could not marry. So they started living together. She took his name and had two children by him. After 4 1/2 years that relationship broke down. Now both have got divorces from their former spouses and have remarried. The question arises now as to the house where they lived.’

Of course Lord Denning is only pretending to be a bit shocked, a decade after the height of the Swinging Sixties, when he had had to deal with far more scandalous material of his Official Report into the Profumo Affair (1963). That was also the subject of a recent BBC television series, The Trial of Christine Keeler, though the model caught in the lascivious eye of the storm was not the only one to face trial. Stephen Ward, the Harley Street osteopath who introduced her to the Minister for War, John Profumo, was later convicted for ‘living off the earnings of prostitution’, and his tragic tale in turn has spawned a musical by Andrew Lloyd-Webber. The combination of sex and law is evidently good box office.

As for Lord Denning, he later confessed that ‘some of the evidence I heard [in the Profumo case] was so disgusting – even to my sophisticated mind – that I sent the lady shorthand writers out and had no note of it taken.’ Methinks he doth protest a bit too much. It’s a bit like when a Chancery judge looks up from his dusty Dickensian tomes about wills and trusts and begins his judgment with a racy slice of a famous life:

‘Errol Flynn was a film actor whose performances gave pleasure to many millions. On June 20, 1909, he was born in Hobart, Tasmania, and on October 14, 1959, he died in Vancouver, British Columbia. When he was 17 he was expelled from school in Sydney, and in the next 33 years he lived a life which was full, lusty, restless and colourful. In his career, in his three marriages, in his friendships, in his quarrels, and in bed with the many women he took there, he lived with zest and irregularity. The lives of film stars are not cast in the ordinary mould, and in some respects Errol Flynn’s was more stellar than most. When he died, he posed the only question that I have to decide: where was he domiciled at the date of his death?’

Mr Justice Megarry, who later acquired the deliciously ambiguous title of Vice Chancellor, was something of a raconteur-at-law, and it shows in the way he opens his judgment in In re Flynn, decd [1968] 1 WLR 103. Given that his judgment was ultimately on a technical question of domicile, it was not really necessary to dwell on the ‘zest and irregularity’ of the late actor’s ‘lusty’ life, but the law reports are all the richer for it and for that we are grateful.

When it comes to irregularity, though, it is hard to top the case, much cherished by law student mooting clubs, of R v Brown and Others [1994] 1 AC 212, in which five Law Lords, sitting in highest court in the land, had to consider the legality of sado-masochistic group sex. Lord Templeman drily observed that ‘Ritual circumcision, tattooing, ear-piercing and violent sports including boxing are lawful activities.’ That was in part because they were consensual. But consent was not enough, apparently. When it came to physically harmful acts of sado-masochism the law was bound, as it were, to intervene.

So, what were these acts? Space does not permit a full recital, but one gets some idea from Lord Templeman’s judgment:

‘The victim was usually manacled so that the sadist could enjoy the thrill of power and the victim could enjoy the thrill of helplessness.’

‘The charges against the appellants were based on genital torture and violence to the buttocks, anus, penis, testicles and nipples. The victims were degraded and humiliated sometimes beaten, sometimes wounded with instruments and sometimes branded. Bloodletting and the smearing of human blood produced excitement.’

‘Cruelty to human beings was on occasions supplemented by cruelty to animals in the form of bestiality.’

To this catalogue of guilty pleasures one may add one more observation, from Lord Jauncey:

‘Your Lordships were further informed that the activities of the appellants, who are middle aged men, were conducted in secret and in a highly controlled manner, that code words were used by the receiver when he could no longer bear the pain inflicted upon him and that when fish-hooks were inserted through the penis they were sterilised first.’

One could go on. On the other hand, one might prefer to pronounce the safe word for this article, which is ‘Judgment’, and call a halter.

Written by Paul Magrath

Paul Magrath is head of product development at the Incorporated Council of Law Reporting for England and Wales (ICLR) and a member of the Transparency Project. He is one of three authors of Transparency in the Family Courts: Publicity and Privacy in Practice.

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