Laskey, Jaggard, and Brown v. United Kingdom

Application No. 21627/93; 21628/93; 21974/93
Download Judgment: English
Country: United Kingdom
Region: Europe
Year: 1997
Court: European Court of Human Rights
Health Topics: Sexual and reproductive health, Violence
Human Rights: Right to privacy
Tags: Gay, Homosexual, LGBTI, Queer, Sexual orientation, Sexual violence

Laskey (L), Jaggard (J) and Brown (B) had taken part in sado-masochistic encounters with as many as forty-four other homosexual men over a ten-year period. These mainly involved maltreatment of the genitalia and ritualistic beatings, either with the assailant’s bare hands or a variety of implements. There were instances of branding and infliction of injuries which resulted in the flow of blood and left scarring. These activities, which sometimes took place in rooms equipped as torture chambers, were consensual and conducted in private for no apparent purpose other than the achievement of sexual gratification. A ‘victim’ was always able to stop an ‘assault’, infection or permanent injury did not arise, and medical attention was never required. L was involved in recruiting new participants to the events which were videoed. The tapes produced were distributed amongst members of the group, but they were not sold or used by other persons.

The police, in the course of routine investigations, came into possession of a number of the tapes and the applicants, with several other men, were charged with assault, wounding and related offences. One of the charges involved a defendant who was under twenty-one years old, the age of consent to male homosexual practices.

L, J and B pleaded guilty to assault charges after the trial judge ruled that they could not rely on the consent of the victims as a defense, and they were convicted of the other offences. Their sentences were respectively: four years and six months imprisonment for aiding and abetting keeping a disorderly house, possession of an indecent photograph of a child, assault occasioning actual bodily harm and abetting such an assault; three-years imprisonment for unlawful wounding, assault occasioning actual bodily harm and aiding and abetting both offences; and two years and nine months imprisonment for assaults occasioning actual bodily harm, as well as aiding and abetting such an assault. The trial judge stated the court would have dealt equally with such conduct if it had been carried out by heterosexuals or bisexuals.

The appeals court dismissed their appeals against convictions but, as they did not appreciate that their actions were criminal, reduced their overall sentences to two years, six months and three months imprisonment, respectively. The house of lords dismissed a further appeal on the issue of whether lack of consent had to be proved for guilt to be established where actual bodily harm was occasioned in a sado-masochistic encounter.

The proceedings against L, J and B were given wide press coverage and all the applicants lost their jobs. J required extensive psychiatric treatment, and L died in May 1996. The applicants complained about their convictions to the U.N. Human Rights Commission, which found a breach of Article 8 of the European Convention on Human Rights (“Convention”). The European Court of Human Rights then considered the case.

[Adapted from INTERIGHTS summary, with permission]

The Court held that no violation of Article 8 had occurred. The Court reasoned that, given the considerable number of people involved, the recruitment of new members, the provision of specially-equipped chambers, and the filming and distribution of the tapes, it may be open to question whether the sexual activities fell entirely within the notion of ‘private life’ in the particular circumstances of the case. However, the Court did not  examine this point because it was not disputed that the criminal proceedings resulting in the applicants’ conviction interfered with their private life. (3) that it was also undisputed that the interference was in accordance with the law and pursued the legitimate aim of protecting health or morals;

The Court further reasoned that the significant degree of injury or wounding inflicted in this case was not trifling or transient and sufficed to distinguish it from other cases involving consensual homosexual behavior in private between adults. Although the injuries were not severe and medical treatment was not required, regard could be had not only to the actual seriousness of the harm caused but also the potential for harm inherent in the acts in question when deciding whether to prosecute. Moreover, there was no evidence in either the conduct of the proceedings or in the house of lords' judgment that the applicants had been singled out because of the authorities’ bias against homosexuals (indeed, the judgment was based on the extreme nature of the practices and not the sexual proclivities of the applicants). Therefore, the reasons given by the national authorities for the measures taken were relevant and sufficient for the purpose of Article 8(2).

Finally, the Court found that, given that only a few charges were selected for inclusion in the prosecution case and the fact that the applicants did not appreciate the criminality of their actions was recognized by reducing the sentences on appeal, these measures could not be regarded as disproportionate.

[Adapted from INTERIGHTS summary, with permission]

"The Court observes that not every sexual activity carried out behind closed doors necessarily falls within the scope of Article 8 (art. 8). In the present case, the applicants were involved in consensual sadomasochistic activities for purposes of sexual gratification. There can be no doubt that sexual orientation and activity concern an intimate aspect of private life (see, mutatis mutandis, the Dudgeon v. the United Kingdom judgment of 22 October 1981, Series A no. 45, p. 21, para. 52). However, a considerable number of people were involved in the activities in question which included, inter alia, the recruitment of new 'members', the provision of several specially equipped "chambers", and the shooting of many videotapes which were distributed among the 'members' (see paragraphs 8 and 9 above). It may thus be open to question whether the sexual activities of the applicants fell entirely within the notion of 'private life' in the particular circumstances of the case. 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. 82)." Para. 36.

"The applicants have contended that, in the circumstances of the case, the behaviour in question formed part of private morality which is not the State’s business to regulate. In their submission the matters for which they were prosecuted and convicted concerned only private sexual behaviour. The Court is not persuaded by this submission. It is evident from the facts established by the national courts that the applicants’ sadomasochistic 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)." Para. 45.

INTERIGHTS Comment: The fact that the Court left open the issue of whether the activity in this case fell within private life is disappointing but is not surprising and the manner of its expression suggests a strong doubt on the point; cf its unwillingness to attach significance to the fact that a film was being shown to members of a private club when judging the acceptability of this being banned (Otto-Preminger-Institut v Austria, (1995) 9 Interights Bulletin 118). It is, however, a questionable stance given that much of social life can take place in a public environment without losing the protection of Art 8; although public display will undoubtedly be a factor in determining whether particular conduct is protected, the nature of the activity is probably more important in defining an act as private. It may well be that the numbers involved could justify regulation of a particular activity but that consideration should not be in itself sufficient to prevent it being part of private life. A similar view might be taken of recruitment; all personal interaction with another requires some initial contact with others to be made. There can be no argument with the Court’s view that the infliction of physical harm can - even in the course of sexual conduct - be a justification for regulation. However, even though the harm here may have been significant, the Court does not really seem to have tested the need for the intervention in this case. It may well be that the judges involved in the case did not show bias against homosexual conduct but the Court ought to have considered whether different standards were being applied to heterosexual conduct (as the Wilson case suggested, not least because it was decided by reference to lack of aggressive intent rather than the degree of pain suffered) in deciding whether there was sufficient harm being inflicted in order to merit State intervention. Moreover the wider context of when consent can be given to the infliction of serious harm ought to have been explored; the approach to boxing in which death and brain damage do occur is in marked contrast to the consequences of the activities being pursued by the applicants. The tendency to regard this as outside the sphere of private life is probably also reflected in the view that the penalties were limited; the ready acceptance of imprisonment for sexual conduct between adults is disturbing. The ruling was based explicitly on health as a justifiable restriction but the lingering impression was that concern about the protection of morals was shaping the conclusions being reached. This concern became much more explicit in the concurring opinion of Judge Pettiti who warned of the dangers of unrestrained permissiveness and asserted that the protection of private life concerned ‘a person’s intimacy and dignity, not the protection of his basesness or the promotion of criminal immoralism’. His judgment might, however, also be seen as an illustration of how the width of the margin of appreciation accorded to a State appears to reflect the degree of judicial disapproval for the conduct being regulated.