Laskey, Jaggard and Brown v United Kingdom (1996) 24 EHRR 39
"Necesary in a democratic society"
37.The applicants maintained that the interference at issue could not be regarded as "necessary in a democratic society". This submission was contested by the Government and by a majority of the Commission.
38.In support of their submission, the applicants alleged that all those involved in the sadomasochistic encounters were willing adult participants; that participation in the acts complained of was carefully restricted and controlled and was limited to persons with like-minded sado-masochistic proclivities; that the acts were not witnessed by the public at large and that there was no danger or likelihood that they would ever be so witnessed; that no serious or permanent injury had been sustained, no infection had been caused to the wounds, and that no medical treatment had been required. Furthermore, no complaint was ever made to the police who learnt about the applicants' activities by chance.
The potential for severe injury or for moral corruption was regarded by the applicants as a matter of speculation....
39. The applicants submitted that their case should be viewed as one involving matters of sexual expression, rather than violence. With due regard to this consideration, the line beyond which consent is no defence to physical injury should only be drawn at the level of intentional or reckless causing of serious disabling injury.
40. For the Government, the State was entitled to punish acts of violence, such as those for which the applicants were convicted, that could not be considered of a trifling or transient nature, irrespective of the consent of the victim. In fact, in the present case, some of these acts could well be compared to "genital torture" and a Contracting State could not be said to have an obligation to tolerate acts of torture because they are committed in the context of a consenting sexual relationship. The State was moreover entitled to prohibit activities because of their potential danger.
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 at 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.
41. The Commission noted that the injuries that were or could be caused by the applicants' activities were of a significant nature and degree, and that the conduct in question was, on any view, of an extreme character. The State authorities therefore acted within their margin of appreciation in order to protect its citizens from real risk of serious physical harm or injury.
42. According to the Court's established case law, the notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued; in determining whether an interference is "necessary in a democratic society", the Court will take into account that a margin of appreciation Is left to the national authorities, whose decision remains subject to review by the Court for conformity with the requirements of the Convention.
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.
43. The Court considers that one of the roles which the State is unquestionably entitled to undertake is to seek to regulate, through the operation of the criminal law, activities which involve the infliction of physical harm. This is so whether the activities in question occur in the course of sexual conduct or otherwise.
44. The determination of the level of harm that should be tolerated by the law in situations where the victim consents is in the first instance a matter for the State concerned since what is at stake is related, on the one hand, to public health considerations and to the general deterrent effect of the criminal law, and, on the other, to the personal autonomy of the individual.
45. 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 he 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.
46. Nor does the Court accept the applicants' submission that no prosecution should have been brought against them since their injuries were not severe and since no medical treatment had been required.
In deciding whether or not to prosecute, the State authorities were entitled to have regard not only to the actual seriousness of the injuries caused...but also...to the potential for harm inherent in the acts in question....
47. The applicants have further submitted that they were singled out partly because of the authorities' bias against homosexuals. They referred to the recent judgment in the Wilson case, where, in their view, similar behaviour in the context of a heterosexual couple was not considered to deserve criminal punishment.
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.....
[I]t is clear from the judgment of the House of Lords that the opinions of majority were based on the extreme nature of the practices involved and not the sexual proclivities of the applicants.
In any event...the Court does not consider that the facts in the Wilson case were at all comparable in seriousness to those in the present case.
48. Accordingly, the Court considers that the reasons given by the national authorities for the measures taken in respect of the applicants were relevant and sufficient for the purposes of Article 8(2).
49. It remains to be ascertained whether these measures were proportionate to the legitimate aim or aims pursued.
The Court notes that the charges of assault were numerous and referred to illegal activities which had taken place over more than 10 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. 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.
50. In sum, the Court finds that the national authorities were entitled to consider that the prosecution and conviction of the applicants were necessary in a democratic society for the protection of health within the meaning of Article 8(2) of the Convention.