Lexploria

AS TO THE ADMISSIBILITY OF

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

by Colin LASKEY, Roland JAGGARD and Antony BROWN

against the United Kingdom

MM. C.A. NØRGAARD, President

H. DANELIUS

C.L. ROZAKIS

G. JÖRUNDSSON

S. TRECHSEL

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

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the applications introduced on 14 December 1992

by Colin LASKEY, Roland JAGGARD and Anthony BROWN against the United

Kingdom and registered on 8 April, 12 May and 4 June 1993 under file

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

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

3 December 1993 and the observations in reply submitted by the

applicants on 26 March 1994;

- the observations submitted by the parties at the oral hearing

held on 18 January 1995;

Having deliberated;

Decides as follows:

THE FACTS

The first applicant, a United Kingdom citizen born in 1943,

resides in Maes y coed, Pontypridd. Before the Commission he is

represented by Miss Anna Worrall, Q.C. and Miss Eleanor Sharpston,

counsel, and Messrs. Hughmans, a firm of solicitors.

The second applicant, a United Kingdom citizen born in 1947,

resides in Welwyn Garden City. Before the Commission he is represented

by Angus Hamilton, a solicitor practising in London and Mr. Adrian

Fulford, counsel.

The third applicant, a United Kingdom citizen born in 1935,

resides in Yardley. Before the Commission, he is represented by Miss

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

The facts of the case as submitted by the parties may be

summarised as follows.

A. Particular circumstances of the case

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 and ritualistic beatings either

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

including stinging nettles, belts and canes. Although these activities

undoubtedly involved a significant degree of pain and caused, in some

cases, physical injury, including wounding, they 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.

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.

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.

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.

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.

The applicants, and three co-defendants, appealed against

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

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.

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?"

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.

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..."

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."

B. Relevant domestic law and practice

Offences against the person

Section 20 of the Offences Against the Persons 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>."

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

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

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

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

beat 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."

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

reasonfor 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 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."

COMPLAINTS

The applicants complain to the Commission that their prosecution

and conviction were in violation of Articles 7 and 8 of the Convention.

Article 7

Under Article 7 the applicants contend that their convictions

were the result of an unforeseeable application of an albeit existing

principle of law from another field of the criminal law. They submit

that the only foreseeable criminal liability at the time of commission

of the alleged offences lay under the sexual offences legislation.

Article 8

Under Article 8 the applicants claim that their prosecution and

conviction represented violations of the said Article as amounting to

interferences with their right to respect for their private life, which

were neither in accordance with law nor necessary in a democratic

society, within the meaning of Article 8 para. 2.

PROCEEDINGS BEFORE THE COMMISSION

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 1994 under No. 21826/93

and those of the second applicant on 4 June 1993 under No. 21974/93.

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.

The Government's observations were submitted on 3 December 1993

after one extension in the time-limit fixed for this purpose, and the

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

after one extension in the time-limit.

On 21 January 1994 and 11 March 1994 respectively, the Commission

decided to grant legal aid to the third and first applicant.

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.

On 18 January 1995, at the oral hearing, the parties were

represented as follows:

For the Government

Mr. I. Christie Agent, Foreign and Commonwealth Office

Mr. D. Pannick Q.C. Counsel

Mr. R. Heaton Adviser

Mr. J. Toon Adviser

For the applicants

Ms. A. Worrall Q.C. Counsel

Ms. E. Sharpston Counsel

Mr. P. Duffy Counsel

Mr. T. Eicke Counsel

Mr. A. Hamilton Solicitor

Mr. I. Geffen Solicitor

Mr. J. Wadham Solicitor

Ms. N. Pollard Legal assistant

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

THE LAW

1. The applicants complain that their prosecution and conviction for

offences of assault and wounding in the course of consensual sado-

masochistic activities constitute a violation of their right to respect

for their private life guaranteed under Article 8 (Art. 8) of the

Convention.

Article 8 (Art. 8) of the Convention provides:

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

family life, his home and his correspondence.

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."

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.

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 respects of sexual acts, which took place 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. The acts were wholly private. 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, in their view, sufficient justification

for criminalising consensual private adult sexual activities. They

also allege discrimination in comparison with other situations in which

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

The Commission has taken cognizance of the submissions of the

parties. It considers that the applicants' complaints raise serious

issues of fact and law, the determination of which should depend on an

examination of the merits. This part of the application must therefore

be declared admissible, no other ground for declaring it inadmissible

having been established.

2. The applicants contend that their convictions were the result of

an unforeseeable application of an albeit existing principle of law

from another field of the criminal law. They submit that the only

foreseeable criminal liability at the time of commission of the alleged

offences lay under the sexual offences legislation. They invoke Article

7 (Art. 7) of the Convention which provides in its first paragraph:

"1. No one shall be held guilty of any criminal offence on

account of any act or omission which did not constitute a

criminal offence under national or international law at the time

when it was committed. Nor shall a heavier penalty be imposed

than the one that was applicable at the time the criminal offence

was committed."

The applicants submit it was not reasonably foreseeable that

their conduct constituted offences under the OAPA. They argue that the

previous authorities, which dealt with fighting in public and the

caning of a girl who had been paid, could not be foreseen as precedent

for a situation where the infliction of pain was for mutual sexual

gratification in private and where no payment was involved.

Accordingly, they were subject to a retrospective application of the

criminal law.

The Commission recalls that Article 7 para. 1 (Art. 7-1) reflects

the principle, found also in other provisions of the Convention in the

context of requirements that interferences with or restrictions in the

exercise of fundamental rights must be "in accordance with law" or

"prescribed by law", that individuals should be able to regulate their

conduct with reference to the norms prevailing in the society in which

they live. That generally entails that the law must be adequately

accessible - an individual must have an indication of the legal rules

applicable in a given case - and he must be able to foresee the

consequences of his actions, in particular, to be able to avoid

incurring the sanction of the criminal law.

In the context of "prescribed by law" the Court set the standard

of foreseeability to that of reasonable certainty:

"...a norm cannot be regarded as a `law' unless it is formulated

with sufficient precision to enable the citizen to regulate his

conduct: he must be able - if need be with appropriate advice -

to foresee, to a degree that is reasonable in the circumstances,

the consequences which a given action may entail. Those

consequences need not be foreseeable with absolute certainty :

experience shows this to be unattainable. Again, whilst certainty

is highly desirable, it may bring in its train excessive rigidity

and the law must be able to keep pace with changing

circumstances. Accordingly, many laws are inevitably couched in

terms which, to a greater or lesser extent, are vague and whose

interpretation and application are questions of practice."

(Eur. Court H.R., the Sunday Times judgment of 26 April 1979,

Series A no. 30 p. 31, para. 49)

The Commission has held that where law is developed by

application and interpretation of courts in a common law system, their

law-making function must remain within reasonable limits. Article 7

para. 1 (Art. 7-1) excludes that any acts not previously punishable

should be held by the courts to entail criminal liability or that

existing offences should be extended to cover facts which previously

did not clearly constitute a criminal offences (see eg. No. 8710/79,

Dec. 7.5.82, D.R. 28 p. 77).

It is however compatible with the requirements of Article 7 para.

1 (Art. 7-1) for the existing elements of an offence to be clarified

or adapted to new circumstances or developments in society insofar as

this can reasonably be brought under the original concept of the

offence. The constituent elements of an offence may not however be

essentially changed to the detriment of an accused and any progressive

development by way of interpretation must be reasonably foreseeable to

him with the assistance of appropriate legal advice if necessary (see

eg. Nos. 8710/79, loc. cit., 10505/83, Dec. 4.3.85, D.R. 41 p. 178 and

No. 13079/87, Dec. 6.3.87, D.R. 60 p. 256).

The Commission notes that the Court of Appeal and the majority

of the House of Lords found that the precedents established that

consent was no defence under section 47 or section 20 of the OAPA and

that there was no exception under which the applicants' conduct could

be said to fall. Lord Mustill, one of the two judges who dissented in

the House of Lords, also agreed that the judge and Court of Appeal had

applied the law as it was then understood though in his own view it

fell to the House of Lords to adapt this understanding.

While the applicants contend that, as accepted by the Court of

Appeal, they did not realise that their conduct was criminal, the

Commission finds that the application of the offences to their conduct

must be regarded as having been reasonably foreseeable to an applicant

with appropriate legal advice. Consequently, the Commission finds that

the applicants were not as a result convicted of conduct which did not

constitute a criminal offence at the time which it was committed.

It follows that these complaints must be rejected as manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

3. The applicants complain also under Article 14 (Art. 14) of the

Convention which prohibits discrimination in the enjoyment of the

rights and freedoms guaranteed under the Convention. The Commission

notes however that this complaint was raised for the first time at the

hearing which took place on 18 January 1995.

Pursuant to Article 26 (Art. 26) of the Convention, the

Commission may only deal with a complaint which has been introduced

"within a period of six months from the date on which the final

decision was taken". The final decision relating to the subject-matter

of the applicants' complaints was the judgment of the House of Lords

given on 11 March 1993, more than six months before the discrimination

complaint was raised before the Commission.

It follows that this complaint has been introduced out of time

and must be rejected under Article 27 para. 3 (Art. 27-3) of the

Convention.

For these reasons, the Commission,

DECLARES ADMISSIBLE the applicants' complaints relating to

alleged interferences with their right to respect for private

life, without prejudging the merits;

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the Commission President of the Commission

(H.C. KRUGER) (C.A. NØRGAARD)

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LASKEY, JAGGARD AND BROWN v. THE UNITED KINGDOM

LASKEY, JAGGARD AND BROWN v. THE UNITED KINGDOM

LEXI