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 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)