EUROPEAN COMMISSION OF HUMAN RIGHTS

           Application Nos. 21627/93, 21826/93 and 21974/93

            Colin LASKEY, Roland JAGGARD and Anthony BROWN

                                against

                          the United Kingdom

                       REPORT OF THE COMMISSION

                     (adopted on 26 October 1995)

                           TABLE OF CONTENTS

                                                                 page

I.    INTRODUCTION

      (paras. 1-19) . . . . . . . . . . . . . . . . . . . . . . . . 1

      A.  The application

          (paras. 2-4). . . . . . . . . . . . . . . . . . . . . . . 1

      B.  The proceedings

          (paras. 5-14) . . . . . . . . . . . . . . . . . . . . . . 1

      C.  The present Report

          (paras. 15-19). . . . . . . . . . . . . . . . . . . . . . 2

II.   ESTABLISHMENT OF THE FACTS

      (paras. 20-39). . . . . . . . . . . . . . . . . . . . . . . . 4

      A.  Particular circumstances of the case

          (paras. 20-34). . . . . . . . . . . . . . . . . . . . . . 4

      B.  Relevant domestic law and practice

          (paras. 35-39). . . . . . . . . . . . . . . . . . . . . . 7

III.  OPINION OF THE COMMISSION

      (paras. 40-65). . . . . . . . . . . . . . . . . . . . . . . . 9

      A.   Complaint declared admissible

           (para. 40) . . . . . . . . . . . . . . . . . . . . . . . 9

      B.   Point at issue

           (para. 41) . . . . . . . . . . . . . . . . . . . . . . . 9

      C.   Article 8 of the Convention

           (paras. 42-65) . . . . . . . . . . . . . . . . . . . . . 9

           Article 8 paragraph 1

           (paras. 46-47) . . . . . . . . . . . . . . . . . . . . .10

           Article 8 paragraph 2

           (paras. 48-64) . . . . . . . . . . . . . . . . . . . . .10

           CONCLUSION

           (para. 65) . . . . . . . . . . . . . . . . . . . . . . .13

CONCURRING OPINION OF MR. N. BRATZA

JOINED BY MR. M.A. NOWICKI. . . . . . . . . . . . . . . . . . . . .14

DISSENTING OPINION OF MR L. LOUCAIDES

JOINED BY MM. S. TRECHSEL, H.G. SCHERMERS, C.L. ROZAKIS,

J.-C.GEUS, J. MUCHA AND E. KONSTANTINOV . . . . . . . . . . . . . .16

APPENDIX:  DECISION ON ADMISSIBILITY. . . . .  . . . . . . . . . . 18

I.    INTRODUCTION

1.    The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A.    The application

2.    The first applicant, a British citzen born in 1943, was resident

in Pontypridd until his death in 1995. The second and third applicants

are British citizens, born in 1947 and 1935 respectively, and resident

in Welwyn Garden City and Yardley. The first applicant's family are

represented before the Commission by Miss Anna Worrall, Q.C. and

Miss Eleanor Sharpston, counsel, and Messrs. Hughmans, solicitors; the

second applicant by Mr. Angus Hamilton, a solicitor practising in

London and Mr. Adrian Fulford, counsel and the third applicant by

Miss Anna Worrall, Q.C. and Ivan Geffens, solicitors.

3.    The application is directed against the United Kingdom.  The

respondent Government are represented by Mr. Ian Christie as Agent,

from the Foreign and Commonwealth Office.

4.    The case concerns the complaints of the applicants that their

prosecution and conviction in respect of sado-masochistic acts carried

out in private discloses a violation of their right to respect for

their private life.

B.    The proceedings

5.    The applications were introduced on 14 December 1992. The first

applicant's complaints were registered under No. 21627/93 on

8 April 1993, those of the second applicant on 12 May 1993 under

No. 21826/93 and those of the third applicant on 4 June 1993 under

No. 21974/93.

6.    On 30 August 1993, the Commission decided to join the first and

third applications. It also decided to communicate all three

applications to the respondent Government and to ask for written

observations on their admissibility and merits.

7.    The Government's observations were submitted on 3 December 1993

after an extension of the time-limit fixed for this purpose, and the

applicants' observations in reply were submitted on 26 March 1994, also

after an extension of the time-limit.

8.    On 27 June 1994, the Commission decided to join the second

application to the other two. It also decided to hold an oral hearing

on the admissibility and merits of the three applications.

9.    At the hearing which was held on 18 January 1995, the parties

were represented as follows. The Government were represented by

Mr. Ian Christie as Agent, Mr. D. Pannick Q.C., Counsel and

Mr. R. Heaton    and Mr. J. Toon as Advisers. The applicants were

represented by Ms. A. Worrall Q.C., Ms. E. Sharpston, Mr. P. Duffy and

Mr. T. Eicke as Counsel, by Mr. A. Hamilton, Mr. I. Geffen and

Mr. J. Wadham as Solicitors and by Ms. N. Pollard, legal assistant.

Mr. Laskey and Mr. Jaggard, applicants, were also present.

10.   On 18 January 1995, the Commission declared admissible the

applicants' complaints concerning alleged violation of their right to

respect for their private life. The remainder of the complaints were

declared inadmissible.

11.   The parties were then invited to submit any additional

observations on the merits of the application.

12.   On 11 May 1995, the applicants submitted supplementary material.

13.   On 14 May 1995, the first applicant died. On 23 August 1995, the

first applicant's legal representatives submitted a statement by his

father, Mr. Ernest Laskey, his next-of-kin, concerning his wish to

continue the application. By letter dated 4 October 1995, the

Government submitted that the application should be struck out. Having

regard, however, to the criminal conviction of the first applicant and

its impact on the reputation of himself and his family, the Commission

decided that, in the circumstances of this case, the first applicant's

father may claim to have sufficient legitimate interest to justify the

continuing of the case.

14.   After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, placed itself

at the disposal of the parties with a view to securing a friendly

settlement of the case.  In the light of the parties' reactions, the

Commission now finds that there is no basis on which a friendly

settlement can be effected.

C.    The present Report

15.   The present Report has been drawn up by the Commission  in

pursuance of Article 31 of the Convention and after deliberations and

votes, the following members being present:

           MM.   S. TRECHSEL, President

                 H. DANELIUS

                 C.L. ROZAKIS

                 C.A. NØRGAARD

                 G. JÖRUNDSSON

                 A.S. GÖZÜBÜYÜK

                 J.-C. SOYER

                 H.G. SCHERMERS

                 F. MARTINEZ

           Mrs.  J. LIDDY

           MM.   L. LOUCAIDES

                 J.-C. GEUS

                 M.A. NOWICKI

                 N. BRATZA

                 I. BÉKÉS

                 J. MUCHA

                 E. KONSTANTINOV

                 G. RESS

16.   The text of the Report was adopted by the Commission on

26 October 1995 and is now transmitted to the Committee of Ministers

in accordance with Article 31 para. 2 of the Convention.

17.   The purpose of the Report, pursuant to Article 31 para. 1 of the

Convention, is

      1)  to establish the facts, and

      2)  to state an opinion as to whether the facts found disclose

          a breach by the State concerned of its obligations under

          the Convention.

18.   The Commission's decision on the admissibility of the application

is attached as Appendix.

19.   The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II.   ESTABLISHMENT OF THE FACTS

A.    Particular circumstances of the case

20.   The applicants, with 10 others, were charged with a series of

offences, including assault and wounding, relating to acts which took

place in the course of sado-masochistic encounters between the

applicants and other homosexual men. The encounters took place with one

exception between men of full age. (One charge involved a defendant who

was not yet 21 and who was alleged to have procured or counselled the

first applicant to assault another person.) The acts consisted in the

main of maltreatment of the genitalia (with, for example, hot wax,

sandpaper, fish hooks and needles) and ritualistic beatings either with

the assailant's bare hands or a bizarre variety of implements,

including stinging nettles, spiked belts and a cat-o'-nine tails. There

were instances of branding and infliction of injuries which resulted

in the flow of blood and which left scarring. These activities were

consensual (save for one single indication that there may not have been

consent to the second branding of a person in bondage) and were

conducted in private for no apparent purpose other than the achievement

of sexual gratification. The infliction of pain was subject to certain

rules including the provision of a code word to be used by any "victim"

to stop an "assault", and did not lead to any instances of infection,

permanent injury or the need for medical attention.

21.   The applicants belonged to a group of men who had been involved

in these activities over a ten-year period from 1978. The activities

took place at a number of locations, including rooms equipped as

torture chambers. Video cameras were used to record events and the

tapes copied and distributed amongst members of the group. The

prosecution was largely based on the contents of the video tapes which

came into the possession of the police. There was no suggestion that

the tapes had been sold or used other than by the members of the group.

22.   The applicants pleaded guilty to the assault charges after the

trial judge ruled on 19 November 1990 that they could not rely on the

consent of the alleged "victims" as an answer to the prosecution case.

23.   On 19 December 1990, the defendants were convicted and sentenced.

The first applicant was convicted on eight counts of assault contrary

to section 47 of the Offences Against the Person Act 1861 (OAPA), one

count of wounding contrary to section 20 of the OAPA and of a number

of other offences including aiding and abetting the keeping of a

disorderly house. He was sentenced to a total of four years and

six months' imprisonment.

24.   The second applicant was convicted on one count of aiding and

abetting unlawful wounding, one count of unlawful wounding, two counts

of assault occasioning actual bodily harm and one count of aiding and

abetting an assault occasioning actual bodily harm. He was sentenced

to a total of three years' imprisonment.

25.   The third applicant was convicted on five counts of assault

occasioning actual bodily harm and one count of aiding and abetting an

assault occasioning actual bodily harm. He was sentenced to a total of

two years and nine months' imprisonment.

26.   The applicants, and three co-defendants, appealed against

conviction on the ground that the trial judge's ruling was wrong.

27.   On 19 February 1992, the Court of Appeal dismissed the appeals

against conviction. It reduced the first applicant's sentence of

imprisonment as regards the charge of aiding and abetting the keeping

of a disorderly house to 18 months, and as regards the assaults and

wounding to 6 months: a total of 2 years together. It reduced the

second applicant's sentence of imprisonment to six months and that of

the third applicant to three months. The Court commented that it was

prepared to accept that the applicants and their co-defendants did not

appreciate that their actions in inflicting injuries were criminal and

that the sentences should be lenient to reflect this.

28.   The applicants and two of their co-defendants appealed on the

following certified point of law of public importance to the House of

Lords:

      "Where A wounds or assaults B occasioning him actual bodily harm

      in the course of a sado-masochistic encounter does the

      prosecution have to prove lack of consent on the part of B before

      they can establish A's guilt under section 20 and section 47 of

      the 1861 Offences against the Person Act?"

29.   On 11 March 1993, the appeal, known as the case of R. v. Brown,

was dismissed by a majority of the House of Lords, two of the five law

lords dissenting.

30.   Lord Templeman, in the majority, held after reviewing the case-

law:

      "...the authorities dealing with the intentional infliction of

      bodily harm do not establish that consent is a defence to a

      charge under the Act of 1861. They establish that consent is a

      defence to the infliction of bodily harm in the course of some

      lawful activities. The question is whether the defence should be

      extended to the infliction of bodily harm in the course of sado-

      masochistic encounters...

      Counsel for the appellants argued that consent should provide a

      defence...because it was said every person has a right to deal

      with his own body as he chooses. I do not consider that this

      slogan provides a sufficient guide to the policy decision which

      must now be taken. 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 harm on willing victims...

      In principle there is a difference between violence which is

      incidental and violence which is inflicted for the indulgence of

      cruelty. The violence of sado-masochistic encounters involves the

      indulgence of cruelty by sadists and the degradation of victims.

      Such violence is injurious to the participants and unpredictably

      dangerous. I am not prepared to invent a defence of consent for

      sado-masochistic encounters which breed and glorify cruelty...

      Society is entitled and bound to protect itself against a cult

      of violence. Pleasure derived from the infliction of pain is an

      evil thing. Cruelty is uncivilised."

31.   Lord Jauncey found that:

      "In my view the line falls properly to be drawn between assault

      at common law and the offence of assault occasioning actual

      bodily harm created by section 47 of the 1861 Act, with the

      result that consent of the victim is no answer to anyone charged

      with the latter offence... unless the circumstances fall within

      one of the well known exceptions such as organised sporting

      contests or games, parental chastisement or reasonable surgery

      ...the infliction of actual or more serious bodily harm is an

      unlawful activity to which consent is no answer.

      ... Notwithstanding the views which I have come to, I think it

      right to say something about the submissions that consent to the

      activity of the appellants would not be injurious to the public

      interest.

      Considerable emphasis was placed by the appellants on the well-

      ordered and secret manner in which their activities were

      conducted and upon the fact that these activities had resulted

      in no injuries which required medical attention.  There was, it

      was said, no question of proselytising by the appellants.  This

      latter submission sits ill with the following passage in the

      judgment of the Lord Chief Justice:

           'They [Laskey and Cadman] recruited new participants: they

           jointly organised proceedings at the house where much of

           this activity took place; where much of the pain inflicting

           equipment was stored.

           Cadman was a voyeur rather than a sado-masochist, but both

           he and Laskey through their operations at the Horwich

           premises were responsible in part for the corruption of a

           youth "K" who is now it seems settled into a normal

           heterosexual relationship.'

      Be that as it may, in considering the public interest it would

      be wrong to look only at the activities of the appellants alone,

      there being no suggestion that they and their associates are the

      only practitioners of homosexual sado-masochism in England and

      Wales. This House must therefore consider the possibility that

      these activities are practised by others and by others who are

      not so controlled or responsible as the appellants are claiming

      to be. 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

      H.I.V. 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. Your Lordships have

      no information as to whether such situations have occurred in

      relation to other sado-masochistic practitioners. It was no doubt

      these dangers which caused Lady Mallalieu to restrict her

      propositions in relation to the public interest to the actual

      rather than the potential result of the activity. In my view such

      a restriction is quite unjustified. When considering the public

      interest potential for harm is just as relevant as actual harm.

      As Mathew J. said in Coney 8 Q.B.D. 534, 547:

           'There is however abundant authority for saying that no

           consent can render that innocent which is in fact

           dangerous'.

      Furthermore, the possibility of proselytisation and corruption

      of young men is a real danger even in the case of these

      appellants and the taking of video recordings of such activities

      suggest that secrecy may not be as strict as the appellants

      claimed to your Lordships."

32.   The two dissenting members of the House of Lords differed in

their opinion.

33.   Lord Mustill considered that the case should not be treated as

being about the criminal law of violence but rather as concerning the

criminal law of private sexual relations. He gave weight to the

arguments of the appellants concerning Article 8 of the Convention,

finding that the decisions of the European authorities clearly favoured

the right of the appellants to conduct their private life undisturbed

by the criminal law. He considered after an examination of previous

precedents that it was appropriate for the House of Lords to tackle

afresh the question whether public interest required penalising the

infliction of this degree of harm in private on a consenting recipient,

where the purpose was not profit but gratification of sexual desire.

He found no convincing argument on grounds of health (alleged risk of

infections or spread of AIDS), the alleged risk of the activities

getting out of hand or any possible risk of corruption of youth which

might require the offences under the OAPA to be interpreted as applying

to this conduct.

34.   Lord Slynn found that as the law stood adults were able to

consent to acts done in private which did not result in serious bodily

harm. He agreed that it was in the end a matter of policy in an area

where social and moral factors were extremely important and where

attitudes could change. It was however for the legislature to decide

whether such conduct should be brought within the criminal law and not

for the courts in the interests of "paternalism" to introduce into

existing statutory crimes relating to offences against the person

concepts which did not properly fit there.

B.    Relevant domestic law and practice

      Offences against the person

35.   Section 20 of the Offences Against the Person Act 1861 (OAPA)

provides as amended:

      "Whosoever shall unlawfully and maliciously wound or

      inflict any grievous bodily harm upon any other person,

      with or without any weapon or instrument, shall be guilty

      of ... and shall be liable...

      penalty of five years' imprisonment>."

36.   To constitute a wound for the purposes of the section, the whole

skin must be broken, not merely the outer layer or epidermis.

37.   Section 47 of the OAPA provides as amended:

      "Whosoever shall be convicted upon an indictment of any

      assault occasioning actual bodily harm shall be liable ...

      to a maximum penalty of five years' imprisonment ."

      Case-law prior to R. v. Brown

38.   In the case of Rex v. Donovan (1934 2 KB 498), the accused had

beaten with a cane a girl for the purposes of sexual gratification,

with her consent. Swift J. held:

      "it is an unlawful act to beat another person with such a degree

      of violence that the infliction of actual bodily harm is a

      probable consequence, and when such an act is proved, consent is

      immaterial."

39.   In Attorney-General's Reference (No. 6 of 1980) (1980 QB 715)

where two men quarrelled and decided to fight each other, Lord Lane CJ

in the Court of Appeal had held:

      "it is not in the public interest that people should try to cause

      or should cause each other actual 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.

      Nothing which we have said is intended to cast doubt upon the

      accepted legality of properly conducted games and sports, lawful

      chastisement or correction, reasonable surgical interference,

      dangerous exhibitions etc? These apparent exceptions can be

      justified as involving the exercise of a legal right, in the case

      of chastisement or correction, or as needed in the public

      interest, in the other cases."

III.  OPINION OF THE COMMISSION

A.    Complaint declared admissible

40.   The Commission has declared admissible the applicants' complaints

that their prosecution and conviction for offences of assault and

wounding in the course of consensual sado-masochistic activities

constituted an interference with their right to respect for their

private life.

B.    Points at issue

41.   The issue to be determined is whether the prosecution and

conviction of the applicants for offences committed in the context of

consensual sado-masochistic activities discloses a violation of

Article 8 (Art. 8) of the Convention:

C.    Article 8 (Art. 8) of the Convention

42.   Article 8 (Art. 8) of the Convention provides as relevant:

      "1.  Everyone has the right to respect for his private ... life

      ...

      2.   There shall be no interference by a public authority with

      the exercise of this right except such as is in accordance with

      the law and is necessary in a democratic society in the interests

      of national security, public safety or the economic well-being

      of the country, for the prevention of disorder or crime, for the

      protection of health or morals, or for the protection of the

      rights and freedoms of others."

43.   The applicants complain that the convictions for assault and

wounding disclose interferences with their right to respect for their

private life under Article 8 para. 1 (Art. 8-1) of the Convention which

are not justifiable under the second paragraph. They submit that they

have been penalised in respect of sexual acts, which took place wholly

in private between consenting adults. They contend that there is no

justification for interference with such an intimate aspect of their

private lives. They submit that their conduct involved relatively minor

levels of physical harm that did no permanent lasting damage and that

there is no real evidence of any risk to health or danger to morals

resulting from such conduct.

44.   The applicants submit that the fact that the acts committed may

have shocked or offended certain members of the public, when publicised

through prosecution, is not sufficient justification for criminalising

consensual private adult sexual activities. The penalty of imprisonment

which was imposed is especially disproportionate in these circumstances

and is also unnecessary having regard to ample provision in English law

to protect minors and vulnerable adults, to protect public decency, to

protect against solicitation for sexual purposes and to prohibit

violence. They also point out that there are other situations in which

more serious forms of injury are lawful (eg. boxing).

45.   The Government submit that any interference disclosed by the

applicants' prosecution and conviction is necessary for the protection

of morals and the protection of health and accordingly justified under

the second paragraph of Article 8 (Art. 8). They refer to the "very

broad margin of appreciation" accorded to Contracting States in areas

touching morality (see eg. Eur. Court H.R. Handyside judgment of

7 December 1976, Series A no. 24 and Muller judgment of 24 May 1988,

Series A no. 133). In their submission, it is open to a Contracting

State to regard some acts of violence as so damaging to morality and

health that the law must prohibit their infliction irrespective of the

consent of the victim. Where the line has to be drawn between those

injuries to which a person can consent to infliction upon himself and

those which are so serious that consent is immaterial is a matter of

public policy. They argue that the decision of the House of Lords in

this case to exclude consent as a defence to actual bodily harm is well

within their margin of appreciation, having regard to cogent factors

such as society's moral rejection of violent sado-masochism, the risks

of serious injury and infection and possible adverse effect on the

young.

      Article 8 paragraph 1 (Art. 8)

46.   The Commission notes that the Government do not contest that the

imposition of criminal penalties on the applicants in this case

constituted an interference with their right to respect for private

life under the first paragraph of Article 8 (Art. 8) of the Convention.

47.   The Commission finds that the conduct of the applicants, carried

out in private and for the purpose of mutual sexual gratification, must

be regarded as falling within the scope of this provision. It must

therefore be determined whether this interference complied with the

requirements of the second paragraph of Article 8 (Art. 8).

      Article 8 paragraph 2 (Art. 8-2)

48.   For an interference to be justified under the second paragraph,

it must be "in accordance with the law", pursue one or more of the

legitimate aims enumerated in this provision and be "necessary in a

democratic society" for the realisation of one or more of those aims.

      "in accordance with the law"

49.   The Commission notes that in their initial submissions the

applicants argued that their convictions were not "in accordance with

the law" since it could not reasonably have been foreseen that the

Offences Against the Person Act 1861 (OAPA) would have been applied to

consensual sexual activities carried out in private.

50.   The Commission and Court's case-law indicate that "in accordance

with the law" firstly, requires that an interference must have some

basis in domestic law and secondly, refers to the quality of the law,

in particular, that it should be accessible to the person concerned who

must be able to foresee its consequences for him (eg. Eur. Court H.R.,

Kruslin and Huvig judgments of 24 April 1990, Series A nos. 176-A p. 20

para. 27 and 176-B p. 52 para. 26).

51.   The Commission recalls that in the present case it has already

considered the applicants' complaints under Article 7 (Art. 7) of the

Convention that they were convicted of conduct which did not constitute

a criminal offence at the time when it was committed. In its decision

on admissibility (see Annex) in which this complaint was rejected as

manifestly ill-founded, the Commission found that while, as accepted

by the Court of Appeal, the applicants may not have realised that their

conduct was criminal, nonetheless the application of the offences under

the OAPA to their conduct must be regarded as having been reasonably

foreseeable to an applicant with appropriate legal advice.

52.   The Commission finds that this reasoning must apply, mutatis

mutandis, to this aspect of the applicants' complaints under Article 8

(Art. 8). Consequently, the interference was "in accordance with law".

      Legitimate aim or aims

53.   The Government have stated that the convictions of the applicants

pursued the aims of the protection of health and morals. The applicants

have not submitted argument to the contrary. Having regard in

particular to the detailed judgments given by the House of Lords, the

Commission accepts the Government's submission.

      "Necessary in a democratic society"

54.   The case-law of the Convention organs establishes that the notion

of necessity implies that an interference corresponds to a pressing

social need and that it is proportionate to the aim pursued. Further,

in determining whether an interference is necessary, the Commission and

Court will take into account that a margin of appreciation is left to

the Contracting States, which are in principle in a better position

to make an initial assessment of the necessity of a given interference

(see eg. Eur. Court H.R. Olsson judgment of 24 March 1988, Series A

no. 130 pp. 31-32 para. 67).

55.   The Commission notes that the interference in this case concerns

conduct which the applicants describe as consensual sexual behaviour

and which the majority of the judges in the House of Lords and the

Government have emphasised as being characterised by violence. The

Commission considers that it cannot be disputed that the applicants

pursued mutual sexual gratification through their activities. It adopts

the approach taken by the Court in the Dudgeon case, which concerned

the prohibition under the criminal law in Northern Ireland of adult

male homosexual acts. Matters of sexual orientation and practice are

of a highly personal nature and concern a most intimate aspect of

private life:

      "Accordingly there must exist particularly serious reasons before

      interferences on the part of public authorities can be legitimate

      for the purposes of paragraph 2 of the Article 8 (Art. 8)."

      (Eur. Court H.R. Dudgeon judgment of 22 October 1981, Series A

      no. 45 p. 21 para. 52)

56.   In this context, it is also appropriate to recall the reference

in assessing necessity to the standards of a "a democratic society" two

of the hallmarks of which are tolerance and broadmindedness (Dudgeon

loc. cit. p. 21 para. 53). Thus the fact that there were members of the

public who might be shocked, offended or disturbed by the commission

by others of private homosexual acts was not found by the Court in

Dudgeon to warrant on its own the application of penal sanctions when

it was consenting adults alone who were involved (Dudgeon loc. cit.

p. 24, para. 60).

57.   In light of these considerations, the Commission has examined

whether there is any justification for the imposition of criminal

penalties on the applicants for activities, which were carried out in

private and between consenting adults.

58.   The Government have submitted that the interference is justified

for the protection of health. They argue that domestic criminal law is

entitled to prohibit sado-masochistic assaults which cause actual

bodily harm or wounding irrelevant of the consent of the victims. Since

a line must be drawn somewhere in respect of the infliction of injury

by one person on another, the State must enjoy a broad margin  of

appreciation as to where the limit is set.

59.   The applicants dispute that their conduct caused risks to health.

It involved relatively minor physical harm that sometimes involved

breaking the skin: they did not intend to cause, and did not in fact

cause any really serious harm. They point to lawful activities such as

tattooing, cosmetic surgery, circumcision, boxing and other sports

where consent is sufficient to preclude offences being charged for what

would be similar, if not more severe, physical injury being inflicted.

60.   The Commission accepts that respect for the health and rights of

others may justify a State in prohibiting activities which cause or

risk causing death or serious injury or in imposing certain protective

measures (cf. No. 7992/77 dec. 12.7.77, D.R. 14 p. 234 concerning the

use of motorcycle helmets and 10083/82 dec. 4.7.83 D.R. 33 p. 270

concerning aiding and abetting suicide). Under the Convention however

any prohibition or restriction which constitutes an interference with

a guaranteed right under Articles 8, 9, 10 and 11 (Art. 8, 9, 10, 11)

must be justified as being necessary in a democratic society. In

particular, under Article 8's (Art. 8) guarantee for respect for

private life, it is not for the applicant to put forward good reasons

or show that he falls within an accepted social category (practice of

sport or religion etc) to be exempt from measures which invade his

sphere of personal autonomy.

61.   The Commission notes that the applicants claim that no serious

permanent injury was caused by their activities and that none was

established as having been caused before the domestic courts. Having

regard however to the types of activities eg. piercing of genitalia,

branding, prolonged beating, the Commission finds that the injuries

cannot be considered to be of a trifling or transient nature. It is not

for the Commission to enter into an analysis of categories of physical

injury offences at domestic law ie. assault, wounding, grievous bodily

harm. The types of injuries that were or could be caused by the

applicants' activities were of a significant nature and degree. The

fact that United Kingdom domestic law appears to tolerate the

deliberate infliction of more serious harm in the context of boxing is

not a persuasive argument: the Commission would merely note that boxing

is increasingly becoming subject to protective measures in Contracting

States.

62.   As regards the applicants' arguments that criminal conviction for

the infliction of these injuries is disproportionate, given the length

of sentence imposed and the nature of the interference with personal

autonomy involved, the Commission is of the opinion that the conduct

in question in these cases was, on any view, of an extreme nature.

There was also an aspect of organisation - the Commission recalls for

example that a significant number of people were involved, that rooms

in various locations were specially equipped and that while the conduct

was private in essence, it came to light through videos which were

being disseminated. It was not a question of the State trespassing into

a private bedroom. The Commission does not consider that the

prosecution of the applicants can be considered as heralding an

invasion into the private lives of people generally or as being

particularly aimed at homosexuals. The parties were unaware when asked

by the Commission of a subsequent prosecution having been brought in

any similar case.

63.   The Commission is satisfied that the conviction of the applicants

for assault and wounding in the circumstances of this case was not

disproportionate and falls within the margin of appreciation to be

accorded to the Government as regards the imposition of measures to

protect its citizens from physical injury. Consequently, the Commission

finds that the interference with the applicants' right to respect for

their private life may be considered as "necessary in a democratic

society" for the aim of protecting health.

64.   Having regard to the finding above, the Commission finds it

unnecessary to consider whether, as the Government have also argued,

there exists a "pressing social need" for prohibiting the applicants'

conduct on the ground of the protection of morals.

CONCLUSION

65.   The Commission concludes, by 11 votes to 7, that there has been

no violation of Article 8 (Art. 8) of the Convention.

Secretary to the Commission            President of the Commission

      (H.C. KRÜGER)                         (S. TRECHSEL)

                                                        (Or. English)

                  CONCURRING OPINION OF MR. N. BRATZA

                      JOINED BY MR. M.A. NOWICKI

      I share the conclusion and reasoning of the majority of the

Commission that there has been no violation of the rights under

Article 8 of any of the present applicants.  I wish to add only a few

points by way of amplification of the Commission's reasoning.

      In the domestic proceedings it was accepted by the applicants

that a line had to be drawn somewhere between those injuries which a

person could consent to have inflicted upon himself and those which

were so serious that consent was immaterial.  As appears from the

report of the proceedings, all the appellants in the House of Lords

agreed that assaults occasioning actual bodily harm should be below the

line but there was disagreement as to whether all offences against

section 20 of the 1861 Act should be above the line or only those

resulting in grievous bodily harm.

      It seems to me that in terms of Article 8 of the Convention it

is similarly a question of where the line is to be drawn or, more

accurately, whether the United Kingdom exceeded the margin of

appreciation afforded under the Article in drawing the line so as to

prohibit not only the infliction of serious bodily harm on another

(which the applicants consider would be justified) but also the

wounding of another or the infliction on him of actual bodily harm,

even in a case where such harm is inflicted in private, with the

consent of the "victim" and in a sexual context.

      In my view the State did not exceed this margin in prohibiting

activities which involved the infliction of injuries on another which

were of more than a trifling or transient nature, whether or not they

could be characterised as serious or permanent and whether or not the

injuries took the form of wounding or of some other form of bodily

harm.  Not only is it likely to be difficult in many cases to determine

whether the injury actually caused is properly to be characterised as

serious and as to whether, if falling within section 20 it is properly

to be treated as wounding or as grievous bodily harm, but, as was

pointed out by the majority of the House of Lords, the evidence in the

present case itself discloses that the practices of the applicants were

unpredictably dangerous and gave rise to obvious risks of serious

personal injury.

      It is argued that, if death or serious personal injury were to

result, those responsible would be punished according to the ordinary

law and that this factor cannot justify penalising the applicants'

conduct where such extreme consequences did not ensue.  It is further

contended that there was and is no evidence of the seriousness of the

hazards to which sado-masochistic activities of the kind involved gives

rise and that such risks were in any event diminished by the pre-

arranged "rules" governing such activities.

      I am unable to accept these arguments.  As the Commission has

pointed out, it is apparent from the description of the activities

engaged in (eg piercing of the genitalia, branding, prolonged beating)

that the injuries sustained cannot be considered to be of a trifling

or transient nature.  Moreover, the nature of the activities was such

that, even in the absence of evidence as to the seriousness of the

injuries which might have been sustained or which may have resulted

in other cases or on other occasions, the House of Lords was in my view

entitled to conclude that they gave rise to real and obvious risks of

serious bodily injury, whatever the nature of the rules applied between

the participants.  It further seems to me that the House of Lords

legitimately had regard to these risks in concluding that the public

interest demanded that activities which intentionally inflicted

injuries on another should continue to be prohibited, notwithstanding

that the "victim" consented to the acts, that the acts were done in

private and in a sexual context and that no permanent injuries were in

fact sustained by him.

      In Convention terms the reasons given by the majority of the

House of Lords for considering that there was a pressing social need

to prohibit social activities were both relevant and sufficient.

      Considerable reliance was placed by the applicants on the fact

that other activities which were intended to and did cause physical

injury were lawful as a matter of English law, even though the injury

sustained or likely to be sustained was of a similar, if not more

severe, character.  In particular, the example of professional boxing

was cited, where injury to an opponent is not only intended but

frequently caused but which remains nevertheless a lawful activity in

English law.

      I do not find this argument compelling.  It does not in my view

follow from the fact that an exception to the established rule that

consent is no defence to assault occasioning actual bodily harm has

been developed through the case-law in relation to boxing, that a

similar exception should be applied in other cases or that the rule

itself is not a response to a pressing social need.  I am in any event

not convinced that any true comparison can be drawn between the

activities in question in the present case and professional boxing,

which is subject to official controls including strict compulsory

medical supervision.

      I am likewise not persuaded that the fact that different

approaches are or may be adopted in the legal systems of other Member

States of the Council of Europe should lead the Commission to the

conclusion that there has been a violation.  Not only do there appear

to be significant differences in the substantive law and procedural

rules applicable in the various Member States in the area of assaults

causing physical harm to another, but the mere fact that activities of

the kind in question would not, or might not, have constituted an

offence in other States, or that no prosecution would or might have

ensued, does not in my view mean that the penalising of the applicant's

activities in the United Kingdom was a breach of Article 8 of the

Convention (cf. Eur. Court H.R., Handyside case, judgment of

29 April 1976, Series A, no. 24, para. 57).

                                                        (Or. English)

                DISSENTING OPINION OF MR L. LOUCAIDES

       JOINED BY MM. S. TRECHSEL, H.G. SCHERMERS, C.L. ROZAKIS,

                J.-C.GEUS, J. MUCHA AND E. KONSTANTINOV

      I am unable to agree with the view of the majority in this case

that the interference in the private life of the applicants was

justified.  I base my opinion on the following reasons.

      The activities for which the applicants were convicted of the

offences of assault and wounding were carried out in private between

consenting adults.

      The majority found that the conviction of the applicants was not

disproportionate and falls within the margin of appreciation to be

accorded to the Government as regards the imposition of measures to

protect its citizens from physical injury and that consequently the

interference with the applicants' right to respect for their private

life may be considered as "necessary in a democratic society" for the

aim of protecting health.

      However, in the present case the domestic courts do not refer to

any permanent or serious harm or injury being caused in the course of

the applicants' activities.  Nor was it established that a real risk

of such harm or injury existed in the circumstances of this case.  The

risk of activities getting out of hand could be met effectively by the

existing provisions of the criminal law because in such a situation

either there will be no consent or serious harm will be caused.  While

mention has been made of AIDS and the risk of infection from

bloodletting activities in both domestic and Commission proceedings

this risk has not been substantiated.  At any rate the risk of

infection with the AIDS virus arises in lawful adult heterosexual and

homosexual acts and cannot by itself be used as a ground for

prohibiting private sexual activities.

      I attach particular importance to the fact that in the legal

system of the respondent State activities which cause injury or are

inherently dangerous to health are generally considered lawful by the

mere fact that they are consented to.  A typical example is the case

of boxing which may cause more severe physical injury  than the

activities of the Applicants and where violence is glorified with the

result that it may incite others to engage in it.

      On 15 October 1995 two professional boxers died as a result of

a boxing match.  It has not been shown that the sado-masochistic acts

of the applicants risk to have comparable consequences.

      For the margin of appreciation of the State to be acceptable

justification it must not be arbitrary or lead to inconsistencies.  It

appears that the treatment of activities which may cause physical

injury by the legal system of the respondent State is not consistent.

Apart from the example of boxing one may refer also to cosmetic surgery

and tattooing where consent is sufficient to preclude offences being

brought.

      The Government have also relied on the protection of morals as

justifying prohibition of the sado-masochistic behaviour under

consideration.  It is important to note in this respect that the

English criminal law does not punish sado-masochistic acts as such and

that the activities of the applicants in this case were merely covered

by the offences of assault and wounding.  This is indicative of the

fact that the punishment of the activities in question was not

associated with moral considerations.  Such activities were treated as

impermissible or unacceptable basically because of their violent

character.  I believe that when the protection of morals is invoked in

order to justify an interference with private life in the form of

criminal sanctions the relevant moral considerations must have been the

raison d'être of such sanctions and not an ex post facto justification.

The offences of assault and wounding are intended to protect physical

integrity and not morals.

      As the Court has stated it is not enough for the acts to shock,

disturb or offend.  There must be some additional element which

necessitates state interference.  This element has not been established

in this case.

      As regards the risk to the young and vulnerable it should be

noted that the offences with which the applicants were charged did not

involve minors.  Furthermore criminal offences already exist under

United Kingdom law for the protection of minors.  It cannot be assumed

and certainly it has not been established that the applicants form of

sexual activities poses in its nature any greater risk of involvement

of the young and vulnerable than any other form of homosexual or

heterosexual relations.

      If we accept that the interference in question is legitimate we

inevitably open the way to Governments to intrude into persons'

bedrooms to investigate allegations, for example, that spouses engage

in sado-masochistic activities.  Strong good reasons are necessary for

such a course which in my opinion are lacking.

      In light of the above I find that the Government have not put

forward any convincing justification for the prohibition under the

criminal law of the applicants' consensual private behaviour which

resulted in minor forms of bodily harm.  I am therefore of the opinion

that the conviction of the applicants for assault and wounding cannot

be considered as "necessary in a democratic society" for the aims of

protecting health or morals.