CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 18 janvier 1995

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                      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 <an offence>... and shall be liable...<to a maximum      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)