CASE OF LASKEY AND OTHERS v. THE UNITED KINGDOM
(Application no. 21627/93; 21628/93; 21974/93)
19 February 1997
In the case of Laskey, Jaggard and Brown v. the United Kingdom,
The European Court of Human Rights, sitting, in accordance with Article 43 (art. 43) of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") and the relevant provisions of Rules of Court A, as a Chamber composed of the following judges:
Mr R. Bernhardt, President,
Mr L.-E. Pettiti,
Mr C. Russo,
Mr A. Spielmann,
Sir John Freeland,
Mr M.A. Lopes Rocha,
Mr L. Wildhaber,
Mr P. Kuris,
Mr E. Levits,
and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy Registrar,
Having deliberated in private on 28 October 1996 and 20 January 1997,
Delivers the following judgment, which was adopted on the last-mentioned date:
The Commission’s request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby the United Kingdom recognised the compulsory jurisdiction of the Court (Article 46) (art. 46). The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article 8 of the Convention (art. 8).
There appeared before the Court:
(a) for the Government
Mr I. Christie, Assistant Legal Adviser,
Foreign and Commonwealth Office, Agent,
Mr D. Pannick QC,
Mr M. Shaw, Counsel,
Mr S. Bramley,
Ms B. Moxon, Advisers;
(b) for the Commission
Mr G. Ress, Delegate;
(c) for the applicants
Lord Lester of Herne Hill QC,
Ms A. Worrall QC, Counsel,
Mr D. Jonas,
Mr A. Hamilton,
Mr I. Geffen, Solicitors,
Mr J. Wadham, Adviser.
The Court heard addresses by Mr Ress, Lord Lester of Herne Hill, Ms Worrall and Mr Pannick.
AS TO THE FACTS
I. The circumstances of the case
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 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 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.
Mr Laskey was sentenced to imprisonment for four years and six months. This included a sentence of four years’ imprisonment for aiding and abetting keeping a disorderly house (see paragraph 31 below) and a consecutive term of six months’ imprisonment for possession of an indecent photograph of a child. Under section 47 of the Offences against the Person Act 1861 ("the 1861 Act" - see paragraph 27 below), Mr Laskey also received concurrent sentences of twelve months’ imprisonment in respect of various counts of assault occasioning actual bodily harm and aiding and abetting assault occasioning actual bodily harm.
"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 or section 47 of the 1861 Act?"
"... 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."
"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 HIV-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 Queen’s Bench 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 suggests that secrecy may not be as strict as the appellants claimed to your Lordships."
II. Relevant domestic law and practice
A. Offences against the persons
1. The Offences against the Person Act 1861
"Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either with or without any weapon or instrument, ... shall be liable ... to [imprisonment] ... for not more than five years."
"Whosoever shall be convicted on indictment of any assault occasioning actual bodily harm shall be liable ... to imprisonment for not more than five years."
Actual bodily harm is defined as "any hurt or injury calculated to interfere with health or comfort" (Liksey J, in R. v. Miller  2 Queen’s Bench Reports 282, at 292).
2. Case-law prior to R. v. Brown
"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."
"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."
3. Case-law subsequent to R. v. Brown
"... there is no factual comparison to be made between the instant case and the facts of either Donovan or Brown: Mrs Wilson not only consented to that which the appellant did, she instigated it. There was no aggressive intent on the part of the appellant ...
We do not think that we are entitled to assume that the method adopted by the appellant and his wife was any more dangerous or painful than tattooing ...
Consensual activity between husband and wife, in the privacy of the matrimonial home, is not, in our judgment, a proper matter for criminal investigation, let alone criminal prosecution."
B. Offences against public decency
"one which is not regulated by the restraints of morality and which is so conducted as to violate law and good order. There must be an element of ‘open house’, but it does not need to be open for the public at large ... Where indecent performances or exhibitions are alleged as rendering the premises a disorderly house, it must be proved that matters are there performed or exhibited of such a character that their performance or exhibition in a place of common resort (a) amounts to an outrage of public decency, or (b) tends to corrupt or deprave, or (c) is otherwise calculated to injure the public interest so as to call for condemnation and punishment" ( Archbold’s Criminal Pleading, Evidence and Practice 20, at 224).
PROCEEDINGS BEFORE THE COMMISSION
The full text of the Commission’s opinion and of the two separate opinions contained in the report is reproduced as an annex to this judgment.
FINAL SUBMISSIONS TO THE COURT
The applicants, for their part, asked the Court to consider the position of each individual applicant upon the basis of the agreed facts and the charges which were pertinent to them and to find a violation of their right to respect for their private lives through the expression of their sexual personality, as guaranteed by Article 8 of the Convention (art. 8).
AS TO THE LAW
ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION (art. 8)
"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."
It was common ground among those appearing before the Court that the criminal proceedings against the applicants which resulted in their conviction constituted an "interference by a public authority" with the applicants’ right to respect for their private life. It was similarly undisputed that the interference had been "in accordance with the law". Furthermore, the Commission and the applicants accepted the Government’s assertion that the interference pursued the legitimate aim of the "protection of health or morals", within the meaning of the second paragraph of Article 8 (art. 8-2).
However, since this point has not been disputed by those appearing before it, the Court sees no reason to examine it of its own motion in the present case. Assuming, therefore, that the prosecution and conviction of the applicants amounted to an interference with their private life, the question arises whether such an interference was "necessary in a democratic society" within the meaning of the second paragraph of Article 8 (art. 8-2).
"Necessary in a democratic society"
The potential for severe injury or for moral corruption was regarded by the applicants as a matter of speculation. To the extent that issues of public morality had arisen - with reference to Mr Laskey’s conviction for keeping a disorderly house and for the possession of an indecent photograph of a child (see paragraph 11 above) - these had been dealt with under the relevant sexual offences provisions and appropriately punished. In any event, such issues fell outside the scope of the case as presented before the Court.
The Government further contended that the criminal law should seek to deter certain forms of behaviour on public-health grounds but also for broader moral reasons. In this respect, acts of torture - such as those in issue in the present case - may be banned also on the ground that they undermine the respect which human beings should confer upon each other. In any event, the whole issue of the role of consent in the criminal law is of great complexity and the Contracting States should enjoy a wide margin of appreciation to consider all the public-policy options.
The scope of this margin of appreciation is not identical in each case but will vary according to the context. Relevant factors include the nature of the Convention right in issue, its importance for the individual and the nature of the activities concerned (see the Buckley v. the United Kingdom judgment of 25 September 1996, Reports of Judgments and Decisions 1996-IV, pp. 1291-92, para. 74).
The Court is not persuaded by this submission. It is evident from the facts established by the national courts that the applicants’ sado-masochistic activities involved a significant degree of injury or wounding which could not be characterised as trifling or transient. This, in itself, suffices to distinguish the present case from those applications which have previously been examined by the Court concerning consensual homosexual behaviour in private between adults where no such feature was present (see the Dudgeon judgment cited above, the Norris v. Ireland judgment of 26 October 1988, Series A no. 142, and the Modinos v. Cyprus judgment of 22 April 1993, Series A no. 259).
In deciding whether or not to prosecute, the State authorities were entitled to have regard not only to the actual seriousness of the harm caused - which as noted above was considered to be significant - but also, as stated by Lord Jauncey of Tullichettle (see paragraph 21 above), to the potential for harm inherent in the acts in question. In this respect it is recalled that the activities were considered by Lord Templeman to be "unpredictably dangerous" (see paragraph 20 above).
The Court finds no evidence in support of the applicants’ allegations in either the conduct of the proceedings against them or the judgment of the House of Lords. In this respect it recalls the remark of the trial judge when passing sentence that "the unlawful conduct now before the court would be dealt with equally in the prosecution of heterosexuals or bisexuals if carried out by them" (see paragraph 11 above).
Moreover, it is clear from the judgment of the House of Lords that the opinions of the majority were based on the extreme nature of the practices involved and not the sexual proclivities of the applicants (see paragraphs 20 and 21 above).
In any event, like the Court of Appeal, the Court does not consider that the facts in the Wilson case were at all comparable in seriousness to those in the present case (see paragraph 30 above).
The Court notes that the charges of assault were numerous and referred to illegal activities which had taken place over more than ten years. However, only a few charges were selected for inclusion in the prosecution case. It further notes that, in recognition of the fact that the applicants did not appreciate their actions to be criminal, reduced sentences were imposed on appeal (see paragraphs 15-17 above). In these circumstances, bearing in mind the degree of organisation involved in the offences, the measures taken against the applicants cannot be regarded as disproportionate.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Holds that there has been no violation of Article 8 of the Convention (art. 8).
Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 19 February 1997.
In accordance with Article 51 para. 2 of the Convention (art. 51-2) and Rule 53 para. 2 of Rules of Court A, the concurring opinion of Mr Pettiti is annexed to this judgment.
CONCURRING OPINION OF JUDGE PETTITI
I concurred with all my colleagues in finding that there had been no violation of Article 8 of the Convention (art. 8). However, my reasoning differs from theirs in some respects.
Firstly, the Court implicitly accepted that Article 8 (art. 8) was applicable since it assumed there had been an interference, and the application referred to State interference under Article 8 (art. 8): "the institution of criminal proceedings infringed that Article (art. 8)."
In my view, that Article (art. 8) was not even applicable in the instant case. The concept of private life cannot be stretched indefinitely.
Not every aspect of private life automatically qualifies for protection under the Convention. The fact that the behaviour concerned takes place on private premises does not suffice to ensure complete immunity and impunity. Not everything that happens behind closed doors is necessarily acceptable. It is already the case in criminal law that the "rape" of a spouse where there is doubt whether consent was given may lead to prosecution. Other types of behaviour may give rise to civil proceedings (internal telephone tapping for example). Sexual acts and abuse, even when not criminal, give rise to liability.
The case could have been looked at differently, both in domestic law and subsequently under the Convention. Can one consider that adolescents taking part in sado-masochistic activities have given their free and informed consent where their elders have used various means of enticement, including financial reward?
In domestic law, sado-masochistic activities could be made the subject of a specific criminal offence without that being contrary to Article 8 (art. 8) of the European Convention on Human Rights.
It seems to me that the wording used by the Court in paragraph 42 is too vague. The margin of appreciation has been used by the Court mainly in dealing with issues of morals or problems of civil society, but above all so as to afford better protection to others; consequently, a reference to the Müller and Others v. Switzerland judgment would have been preferable to the reference to the Buckley v. the United Kingdom judgment (see Olivier de Schutter’s commentary on that judgment in Revue trimestrielle des droits de l’homme, Brussels, 1997, pp. 64-93).
It seemed to me necessary to expand paragraph 43 by noting "to regulate and punish practices of sexual abuse that are demeaning even if they do not involve the infliction of physical harm".
The dangers of unrestrained permissiveness, which can lead to debauchery, paedophilia (see paragraph 11 of the judgment) or the torture of others, were highlighted at the Stockholm World Conference. The protection of private life means the protection of a person’s intimacy and dignity, not the protection of his baseness or the promotion of criminal immoralism.
 The case is numbered 109/1995/615/703-705. The first number is the case's position on the list of cases referred to the Court in the relevant year (second number). The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.
 Rules A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (P9) (1 October 1994) and thereafter only to cases concerning States not bound by that Protocol (P9). They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently.
 For practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions 1997-I), but a copy of the Commission's report is obtainable from the registry