Though the European Commission
of Human Rights ruled that the UK government had a case to answer
the majority expressed the opinion that the UK government was justified.
This is the opinion of minority of the commission who disagreed.
I am unable to agree with the view of the
majority in this case that the interference in the private life
of the applicants was justified. I base my opinion on the following
The activities for which the applicants were convicted
of the offences of assault and wounding were carried out in private
between consenting adults.
The majority found that the conviction of the
applicants was not disproportionate and falls within the margin
of appreciation to be accorded to the Government as regards the
imposition of measures to protect its citizens from physical injury
and that consequently the interference with the applicants' right
to respect for their private life may be considered as "necessary
in a democratic society" for the aim of protecting health.
However, in the present case the domestic courts
do not refer to any permanent or serious harm or injury being caused
in the course of the applicants activities. Nor was it established
that a real risk of such harm or injury existed in the circumstances
of this case. The risk of activities getting out of hand could be
met effectively by the existing provisions of the criminal law because
in such a situation either there will be no consent or serious harm
will be caused. While mention has been made on AIDS and the risk
of infection from bloodletting activities in both domestic and Commission
proceedings this risk has not been substantiated. At any rate the
risk of infection with the AIDS virus arises in lawful adult heterosexual
and homosexual acts and cannot by itself be used as a ground for
prohibiting private sexual activities.
I attach particular importance to the fact that
in the legal system of the respondent State activities which cause
injury or are inherently dangerous to health are generally considered
lawful by the mere fact that they are consented to. A typical example
is the case of boxing which may cause more severe physical injury
than the activities of the Applicants and where violence is glorified
with the result that in may incite others to engage in it.
On 15 October 1985 two professional boxers died
as a result of a boxing match. It has not been shown that the sado-masochistic
acts of the applicants risk to have comparable consequences.
For the margin of appreciation of the State to
be acceptable justification it must not be arbitrary or lead to
inconsistencies. It appears that the treatment of activities which
may cause physical injury by the legal system of the respondent
State is not consistent. Apart from the example of boxing one may
refer also to cosmetic surgery and tattooing where consent is sufficient
to preclude offences being brought.
The government have also relied on the protection
of morals as justifying prohibition of the sado-masochistic acts
as such and that the activities of the applicants in this case were
merely covered by the offences of assault and wounding. This is
indicative of fact that the punishment of the activities in question
was not associated with moral considerations. Such activities were
treated as impermissible or unacceptable basically because of their
violent character. I believe that when the protection of morals
is invoked in criminal sanctions the relevant moral considerations
must have been the raison d'etre of such sanctions and not the ex
post facto justification. The offences of assault and wounding are
intended to protect physical integrity and not morals.
As the court stated it is not enough for the acts
to shock disturb or offend. There must be some additional element
which necessitates state interference. This element has not been
established in this case.
As regards the risk to the young and vulnerable
should be noted that the offences with which the applicants were
charged did not involve minors. Furthermore criminal offences already
exist under United Kingdom law for the protection of minors. It
cannot be assumed and certainly it has not been established that
the applicants form of sexual activities poses in its nature any
greater risk of involvement of the young and vulnerable than any
other form of homosexual or heterosexual relations.
If we accept that the interference in question
is legitimate we inevitably open the way to Governments to intrude
into persons' bedrooms to investigate allegations, for example,
that spouses engage in sado-masochistic activities. Strong and good
reasons are necessary for such a course which in my opinion are
In light of the above I find that the government
have not put forward any convincing justification for the prohibition
under the criminal law of the applicants' consensual private behaviour
which resulted in minor forms of bodily harm. I am therefore of
the opinion that the conviction of the applicants for assault and
wounding cannot be considered as 'necessary in a democratic society'
for the aims of protecting health or morals.