AS TO THE ADMISSIBILITY OF
Application No. 22170/93
by V., W., X., Y. and Z.
against the United Kingdom
The European Commission of Human Rights sitting in private on
18 January 1995, the following members being present:
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 application introduced on 25 June 1993 by
V., W., X., and Z. against the United Kingdom and registered on
6 July 1993 under file No. 22170/93;
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 five applicants in this case are British citizens and
resident in London. They were born in 1949, 1956, 1960, 1968 and 1962
respectively.
The applicants are represented before the Commission by Mr. John
Wadham, a solicitor working for the organisation "Liberty".
The facts as submitted by the parties may be summarised as
follows.
A. Particular circumstances of the case
The first applicant was a founder of "S-M Gays" in 1981. This is
a social and educational group for gays interested in sado-masochistic
activities which also provides help and assistance to its members. He
is also involved with "Countdown with Spanner", a campaigning group set
up following the prosecution of the defendants in the case of Brown
(see below Relevant domestic law and practice). He is in a stable
relationship with two gay men. He has engaged in various consensual
sado-masochistic practices and received treatment of the kind that
leaves minor non-serious injuries. The practices include the use of
restraints, being belted and strapped and chewing, which practices can
cause minor cuts and bruises. He also has a septum piercing (the fixing
of a ring through the central division of his nose).
The second applicant is in a stable heterosexual relationship
with the fifth applicant. They have two sons aged 6 and 3. An intimate
part of these applicants' sexual relationship is reciprocating
practices which can cause minor cuts, bruising or otherwise leave
marks. They ranged from love bites and scratching to the use of
restraints and canes.
The third applicant is a heterosexual. His sexual activities also
include receiving masochistic practices such as beating and scratching,
causing minor injuries.
The fourth applicant is a lesbian in a stable relationship. She
likes to be hit and to hit her partner with whips, belts and other
objects. This activity can leave bruises or cause cuts or breaks in the
skin. She regularly attends clubs for people who indulge in such
activity and has had her photograph in magazines in that context.
B. Relevant domestic law and practice
On 19 December 1990, in the case of R v. Brown and others, a
number of defendants were convicted, inter alia, on counts of assault
contrary to section 47 of the Offences Against the Person Act 1861
(OAPA) and wounding contrary to section 20 of that Act. The charges
related to acts which took place in the course of sado-masochistic
encounters between adult homosexual men. These included maltreatment
of the genitalia and ritualistic beatings either with the assailant's
bare hands or a bizarre variety of implements. Although these
activities undoubtedly involved a significant degree of pain and
caused, in some cases, physical injury, including wounding, they were
consensual 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
infection, permanent injury or the need for medical attention.
The defendants had pleaded guilty to the assault and wounding
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.
Six of the 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 appeal
against conviction though reduced the sentences since it accepted that
the defendants did not appreciate that their actions in inflicting
injuries were criminal.
Five of the 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 was dismissed by a majority of the
House of Lords, two of their Lordships dissenting (1993 2 WLR 556).
Lord Templeman, in the majority, held:
"...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..."
COMPLAINTS
1. The applicants submit that the House of Lords ruling in the case
of R v. Brown and others renders their sexual activities liable to
criminal sanction. This constitutes an interference with their right
to respect for their private lives contrary to Article 8 of the
Convention. They contend that the interference is not justified under
the second paragraph for, inter alia, the following reasons:
- it is not "in accordance with the law" since the House of Lords
ruling renders it insufficiently foreseeable as to what sexual conduct
is liable to criminal sanction;
- there is no "pressing social need" to impose criminal sanctions on
intimate sexual activities between consenting adults in private;
- there is ample provision in English law to protect minors and
vulnerable adults, to protect public decency, or to protect against
solicitation for sexual purposes and against violence;
- the ruling was not needed to prevent the spread of disease: other
activities which have greater risk of serious injury are not prohibited
on this ground and it cannot be justified to render something a
criminal offence merely because of the risk of AIDS;
- the ruling criminalises a wide range of private sexual activities
between consenting adults (heterosexual, lesbian and homosexual).
The applicants refer to the domestic law of other Contracting
States which either provide that consent is a defence to criminal
liability for actual bodily harm or its equivalent, or provide that
actual bodily harm equivalents (unlike more serious harm) shall not be
prosecutable other than after the complaint of the person who received
the minor injury.
2. The applicants also allege that they are suffering from
discrimination contrary to Article 14 in conjunction with Article 8.
They refer to the fact that other activities which involve infliction
of actual bodily harm are excepted from the ruling eg. ritual
circumcision, boxing, tattooing, body piercing.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 25 June 1993 and registered on
6 July 1993.
On 30 August 1993, the Commission decided to communicate the
application to the respondent Government and to ask for written
observations on its 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 27 June 1994, the Commission decided to hold an oral hearing
on the admissibility and merits of the application, consecutive to an
oral hearing in the case of Laskey, Jaggard and Brown v. the United
Kingdom (Nos. 21627/93, 21826/93 and 21974/93).
On 9 September 1994, the Commission granted legal aid to the
third applicant, X..
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
Mr. P. Duffy Counsel
Mr. T. Eicke Counsel
Ms. A. Worrall Q.C. Counsel
Ms. E. Sharpston Counsel
Mr. J. Wadham Solicitor, Liberty
Ms. N. Pollard Legal assistant
V., X., Y. and Z., applicants, also attended.
THE LAW
1. The applicants complain of an interference with their right to
respect for their private life as a result of the decision of the House
of Lords in R. v Brown. They invoke Article 8 (Art. 8) of the
Convention which 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 the applicants are not victims of any
violation of their Convention rights, since they have not been subject
to any investigation, prosecution or penalty and whether they would
ever be likely to be prosecuted would depend on the circumstances of
each individual case, which renders their victim status no more than
potential and contingent. Even assuming the applicants could claim to
be victims, they submit that there are cogent reasons for a public
policy of rendering consensual sado-masochistic activities unlawful,
having regard, inter alia, to the right of society to prohibit conduct
which is so uncivilized that its continuance would damage moral
principles or endanger public health or have an adverse effect on
impressionable young people.
The five applicants submit that they are adults, who have engaged
and wish to continue to engage in consensual sexual relations with
other adults in private and who allege that their freedom to do so has
been gravely and directly affected by the House of Lords' judgment in
the sado-masochist case (see above). They state that their sexual
activities include behaviour that is or could be classified as
involving sado-masochistic acts. The House of Lords' decision has
established that consent cannot be a defence to a criminal prosecution
to consensual sado-masochistic sexual behaviour. Since criminal
sanctions now apply to the most intimate aspects of their private life,
they submit that there is an interference under Article 8 para. 1
(Art. 8-1) for which there is no justification under the second
paragraph of this provision. In this context, they point out that the
conduct involved is carried out in private, between consenting adults
and does not result in any serious or lasting injury.
The Commission recalls that Article 25 (Art. 25) of the
Convention provides that the Commission may only receive petitions from
persons "claiming to be the victim of a violation by one of the HIgh
Contracting Parties" of one or more of the rights guaranteed under the
Convention. This requires that an appilcant must be able to claim to
be directly affected by the measure of which he or she complains. Where
the applicant is complaining of the state of legislation or law, he or
she must establish that the very existence of that law continuously and
directly affects his or her private life. The Commission may not
entertain actions in the nature of an actio popularis nor claims in
abstracto that a law contravenes the provisions of the Convention (see
eg. Eur. Court H.R. Klass and others judgment of 6 September 1978,
Series A no. 28 and Dudgeon judgment of 22 October 1981, Series A
no. 45).
The Commission notes that the applicants in this present
application have not been prosecuted nor threatened with prosecution
or investigation by the police in respect of the private sexual conduct
which they allege to be subject to the criminal law. Further, it is not
apparent that since the House of Lords judgment in the case R. v. Brown
that there have been any further prosecutions in respect of alleged
sado-masochistic acts carried out in private between adults for the
purpose of mutual sexual gratification. While an absence of prosecution
will not necessarily prove that a particular law is effectively a dead
letter, the Commission is not satisfied that the precedent provided by
the House of Lords in Brown has the effect alleged by the applicants.
The Commission considers that the conduct of the defendants in the
Brown case was of a nature and degree significantly different to the
conduct to which the applicants make reference. Consequently, the
Commmission does not find that the decision of the House of Lords in
the case of R. v. Brown can be said to have a direct or continuous
impact on the private lives of the the applicants in the present
application.
It follows that this complaint must be rejected as manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicants also invoke Article 14 of the Convention in
conjunction with Article 8 (Art. 14+8) in connection with alleged
discriminatory treatment, in that other types of conduct such as boxing
which inflict actual bodily harm do attract the defence of consent.
Article 14 (Art. 14) provides:
"The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any ground
such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national
minority, property, birth or other status."
The Commission recalls that this provision only prohibits
discrimination in the enjoyment of the rights and freedoms guaranteed
under Convention. The Commission has found above that that applicants
have not established that they are victims of any interference with
their rights under Article 8 (Art. 8) of the Convention. It follows
that the applicants' complaints concerning an alleged difference in
treatment fall outside the scope of Article 14 (Art. 14). This part
of the application must therefore be rejected as incompatible ratione
materiae with the provisions of the Convention within the meaning of
Article 27 para. 2 (Art. 27-2).
For these reasons, the Commission by a majority
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRUGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy