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In the case of Laskey, Jaggard and Brown v. the United Kingdom[1],

The European Court of Human Rights, sitting, in accordance withArticle 43 (art. 43) of the Convention for the Protection of Human Rightsand Fundamental Freedoms ("the Convention") and the relevant provisionsof Rules of Court A[2],as a Chamber composed of the following judges:

Mr R.Bernhardt,President,

Mr L.-E.Pettiti,

Mr C.Russo,

Mr A.Spielmann,

Sir JohnFreeland,

Mr M.A.Lopes Rocha,

Mr L.Wildhaber,

Mr P.Kuris,

Mr E.Levits,

and also ofMr H.Petzold,Registrar,andMr P.J.Mahoney,Deputy Registrar,

Having deliberated in private on 28 October 1996 and 20 January1997,

Delivers the following judgment, which was adopted on the last-mentioneddate:

PROCEDURE

The case was referred to the Court by the EuropeanCommission of Human Rights ("the Commission") on 11 December 1995,within the three-month period laid down by Article 32 para. 1 and Article47 of the Convention (art. 32-1, art. 47). It originated in three applications(nos. 21627/93, 21826/93 and 21974/93) against the United Kingdom of GreatBritain and Northern Ireland lodged with the Commission under Article 25 (art.25) on 14 December 1992 by three British nationals, Mr Colin Laskey, MrRoland Jaggard and Mr Anthony Brown.

The Commissions request referred to Articles 44 and 48 (art.44, art. 48) and to the declaration whereby the United Kingdom recognised thecompulsory jurisdiction of the Court (Article 46) (art. 46). The object of therequest was to obtain a decision as to whether the facts of the case discloseda breach by the respondent State of its obligations under Article 8 of theConvention (art. 8).

In response to the enquiry made in accordance with Rule 33para. 3 (d) of Rules of Court A, the late Mr Laskeys father and thetwo other applicants stated that they wished to take part in the proceedingsand designated the lawyers who would represent them (Rule 30).

The Chamber to be constituted included ex officio Sir JohnFreeland, the elected judge of British nationality (Article 43 of theConvention) (art. 43), and Mr R. Bernhardt, the Vice-President of theCourt (Rule 21 para. 4 (b)). On 8 February 1996, in the presence of theRegistrar, the President of the Court, Mr R. Ryssdal, drew by lot the names ofthe other seven members, namely Mr L.-E. Pettiti, Mr C. Russo, Mr A. Spielmann,Mr M.A. Lopes Rocha, Mr L. Wildhaber, Mr P. Kuris and Mr E. Levits (Article 43in fine of the Convention and Rule 21 para. 5) (art. 43).

As President of the Chamber (Rule 21 para. 6), MrBernhardt, acting through the Registrar, consulted the Agent of the UnitedKingdom Government ("the Government"), the applicants lawyers andthe Delegate of the Commission on the organisation of the proceedings (Rules 37para. 1 and 38). Pursuant to the orders made in consequence, the Registrarreceived the Governments and the applicants memorials on 2 and 15 July 1996respectively.

On 17 July 1996, the President granted leave to RightsInternational, a New York-based non-governmental human rights organisation, tosubmit written comments on specified aspects of the case (Rule 37 para. 2). Thecomments were received on 16 August 1996.

In accordance with the Presidents decision, the hearingtook place in public in the Human Rights Building, Strasbourg, on 21 October1996. The Court had held a preparatory meeting beforehand.

There appeared before the Court:

(a) for the Government

Mr I.Christie, Assistant Legal Adviser,

Foreign and Commonwealth Office, Agent,

Mr D.PannickQC,

Mr M.Shaw, Counsel,

Mr S.Bramley,

Ms B.Moxon, Advisers;

(b) for the Commission

Mr G.Ress, Delegate;

LordLesterof Herne HillQC,

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. Thecircumstances of the case

Mr Laskey, Mr Jaggard and Mr Brown, all British citizens,were born in 1943, 1947 and 1935 respectively. Mr Laskey died on 14 May 1996.

In 1987, in the course of routine investigations intoother matters, the police came into possession of a number of video films whichwere made during sado-masochistic encounters involving the applicants and asmany as forty-four other homosexual men. As a result the applicants, withseveral other men, were charged with a series of offences, including assaultand wounding, relating to sado-masochistic activities that had taken place overa ten-year period. One of the charges involved a defendant who was not yet 21years old - the age of consent to male homosexual practices at the time. Althoughthe instances of assault were very numerous, the prosecution limited the countsto a small number of exemplary charges.

The acts consisted in the main of maltreatment of the genitalia(with, for example, hot wax, sandpaper, fish hooks and needles) and ritualisticbeatings either with the assailants bare hands or a variety of implements,including stinging nettles, spiked belts and a cat-o-nine tails. There wereinstances of branding and infliction of injuries which resulted in the flow ofblood and which left scarring.

These activities were consensual and were conducted in privatefor no apparent purpose other than the achievement of sexual gratification. Theinfliction of pain was subject to certain rules including the provision of acode word to be used by any "victim" to stop an "assault",and did not lead to any instances of infection, permanent injury or the needfor medical attention.

The activities took place at a number of locations,including rooms equipped as torture chambers. Video cameras were used to recordevents and the tapes copied and distributed amongst members of the group. Theprosecution was largely based on the contents of those videotapes. There was nosuggestion that the tapes had been sold or used other than by members of thegroup.

The applicants pleaded guilty to the assault chargesafter the trial judge ruled that they could not rely on the consent of the"victims" as an answer to the prosecution case.

On 19 December 1990, the defendants were convicted andsentenced to terms of imprisonment. On passing sentence, the trial judgecommented: "... the unlawful conduct now before the court would be dealtwith equally in the prosecution of heterosexuals or bisexuals if carried out bythem. The homosexuality of the defendants is only the background against whichthe case must be viewed."

Mr Laskey was sentenced to imprisonment for four years and sixmonths. This included a sentence of four years imprisonment for aiding andabetting keeping a disorderly house (see paragraph 31 below) and a consecutiveterm of six months imprisonment for possession of an indecent photograph of achild. Under section 47 of the Offences against the Person Act 1861 ("the1861 Act" - see paragraph 27 below), Mr Laskey also received concurrentsentences of twelve months imprisonment in respect of various counts ofassault occasioning actual bodily harm and aiding and abetting assaultoccasioning actual bodily harm.

Mr Jaggard was sentenced to imprisonment for three years.He received two years imprisonment for aiding and abetting unlawful wounding -contrary to section 20 of the 1861 Act (see paragraph 25 below) -, and afurther twelve months imprisonment for assault occasioning actual bodily harm,aiding and abetting the same offence, and unlawful wounding.

Mr Brown was sentenced to imprisonment for two years andnine months. He received twelve months imprisonment for aiding and abettingassault occasioning actual bodily harm, a further nine months imprisonment forassault occasioning actual bodily harm, and a further twelve monthsimprisonment for further assaults occasioning actual bodily harm.

The applicants appealed against conviction and sentence.

On 19 February 1992, the Court of Appeal, CriminalDivision, dismissed the appeals against conviction. Since, however, the courtfound that the applicants did not appreciate that their actions in inflictinginjuries were criminal, reduced sentences were imposed.

Mr Laskeys sentence was thus reduced to eighteen monthsimprisonment as regards the charge of aiding and abetting keeping a disorderlyhouse. This sentence was to run concurrently with another three monthssentence in respect of the various counts of assault and consecutively with sixmonths imprisonment for the possession of an indecent photograph of a child,totalling two years imprisonment.

Mr Jaggards and Mr Browns sentences were reduced to sixmonths and three months imprisonment respectively.

The applicants appealed to the House of Lords on thefollowing certified point of law of public importance:

"Where A wounds or assaults B occasioning him actual bodilyharm in the course of a sado-masochistic encounter, does the prosecution haveto prove lack of consent on the part of B before they can establish As guiltunder section 20 or section 47 of the 1861 Act?"

On 11 March 1993, the appeal, known as the case of R. v.Brown ([1993] 2 All England Law Reports 75), was dismissed by a majority of theHouse of Lords, two of the five law lords dissenting.

Lord Templeman, in the majority, held after reviewing thecase-law that:

"... the authorities dealing with the intentionalinfliction of bodily harm do not establish that consent is a defence to acharge under the Act of 1861. They establish that consent is a defence to theinfliction of bodily harm in the course of some lawful activities. The questionis whether the defence should be extended to the infliction of bodily harm inthe course of sado-masochistic encounters ...

Counsel for the appellants argued that consent should provide adefence ... because it was said every person has a right to deal with his ownbody as he chooses. I do not consider that this slogan provides a sufficientguide to the policy decision which must now be taken. It is an offence for aperson to abuse his own body and mind by taking drugs. Although the law isoften broken, the criminal law restrains a practice which is regarded asdangerous and injurious to individuals and which if allowed and extended isharmful to society generally. In any event the appellants in this case did notmutilate their own bodies. They inflicted harm on willing victims ...

In principle there is a difference between violence which is incidentaland violence which is inflicted for the indulgence of cruelty. The violence ofsado-masochistic encounters involves the indulgence of cruelty by sadists andthe degradation of victims. Such violence is injurious to the participants andunpredictably dangerous. I am not prepared to invent a defence of consent forsado-masochistic encounters which breed and glorify cruelty ...

Society is entitled and bound to protect itself against a cultof violence. Pleasure derived from the infliction of pain is an evil thing. Crueltyis uncivilised."

Lord Jauncey of Tullichettle found that:

"In my view the line falls properly to be drawn betweenassault at common law and the offence of assault occasioning actual bodily harmcreated by section 47 of the 1861 Act, with the result that consent of thevictim is no answer to anyone charged with the latter offence ... unless thecircumstances fall within one of the well known exceptions such as organised sportingcontests or games, parental chastisement or reasonable surgery ... theinfliction of actual or more serious bodily harm is an unlawful activity towhich consent is no answer.

... Notwithstanding the views which I have come to, I think it rightto say something about the submissions that consent to the activity of theappellants would not be injurious to the public interest.

Considerable emphasis was placed by the appellants on the well-orderedand secret manner in which their activities were conducted and upon the factthat these activities had resulted in no injuries which required medicalattention. There was, it was said, no question of proselytising by theappellants. This latter submission sits ill with the following passage in thejudgment of the Lord Chief Justice:

They [Laskey and Cadman] recruited new participants; theyjointly organised proceedings at the house where much of this activity tookplace; where much of the pain inflicting equipment was stored.

Cadman was a voyeur rather than a sado-masochist, but bothhe and Laskey through their operations at the Horwich premises were responsiblein part for the corruption of a youth "K" who is now it seems settledinto a normal heterosexual relationship.

Be that as it may, in considering the public interest it would bewrong to look only at the activities of the appellants alone, there being nosuggestion that they and their associates are the only practitioners ofhomosexual sado-masochism in England and Wales. This House must thereforeconsider the possibility that these activities are practised by others and byothers who are not so controlled or responsible as the appellants are claimingto be. Without going into details of all the rather curious activities in whichthe appellants engaged it would appear to be good luck rather than good judgmentwhich has prevented serious injury from occurring. Wounds can easily becomeseptic if not properly treated, the free flow of blood from a person who isHIV-positive or who has AIDS can infect another and an inflicter who is carriedaway by sexual excitement or by drink or drugs could very easily inflict painand injury beyond the level to which the receiver had consented. Your Lordshipshave no information as to whether such situations have occurred in relation toother sado-masochistic practitioners. It was no doubt these dangers whichcaused Lady Mallalieu to restrict her propositions in relation to the publicinterest to the actual rather than the potential result of the activity. In myview such a restriction is quite unjustified. When considering the publicinterest potential for harm is just as relevant as actual harm. As Mathew J.said in Coney 8 Queens Bench 534, 547:

There is however abundant authority for saying that no consentcan render that innocent which is in fact dangerous.

Furthermore, the possibility of proselytisation and corruption ofyoung men is a real danger even in the case of these appellants and the takingof video recordings of such activities suggests that secrecy may not be asstrict as the appellants claimed to your Lordships."

Lord Mustill and Lord Slynn of Hadley dissented. Thefirst considered that the case should not be treated as falling within thecriminal law of violence but rather within the criminal law of private sexualrelations. He gave weight to the arguments of the appellants concerning Article8 of the Convention (art. 8), finding that the decisions of the Europeanauthorities clearly favoured the right of the appellants to conduct theirprivate life undisturbed by the criminal law. He considered after anexamination of the relevant case-law that it was appropriate for the House ofLords to tackle afresh the question whether public interest required penalisingthe infliction of this degree of harm in private on a consenting recipient,where the purpose was not profit but gratification of sexual desire. He foundno convincing argument on grounds of health (alleged risk of infections orspread of AIDS), the alleged risk of the activities getting out of hand or anypossible risk of corruption of youth which might require the offences under the1861 Act to be interpreted as applying to this conduct.

Lord Slynn of Hadley found that as the law stood adultswere able to consent to acts done in private which did not result in seriousbodily harm. He agreed that it was in the end a matter of policy in an areawhere social and moral factors were extremely important and where attitudescould change. It was however for the legislature to decide whether such conductshould be brought within the criminal law and not for the courts in theinterests of "paternalism" to introduce into existing statutorycrimes relating to offences against the person concepts which did not properlyfit there.

The proceedings were given widespread press coverage. Allthe applicants lost their jobs and Mr Jaggard required extensive psychiatrictreatment.

II. Relevantdomestic law and practice

A. Offences against the persons

1. The Offences against the Person Act 1861

Section 20 of the Offences against the Person Act 1861("the 1861 Act") provides:

"Whosoever shall unlawfully and maliciously wound orinflict any grievous bodily harm upon any other person, either with or withoutany weapon or instrument, ... shall be liable ... to [imprisonment] ... for notmore than five years."

According to the case-law, to constitute a wound for thepurposes of the section, the whole skin must be broken, not merely the outerlayer or epidermis.

By section 47 of the 1861 Act:

"Whosoever shall be convicted on indictment of any assaultoccasioning actual bodily harm shall be liable ... to imprisonment for not morethan five years."

Actual bodily harm is defined as "any hurt or injurycalculated to interfere with health or comfort" (Liksey J, in R. v. Miller[1954] 2 Queens Bench Reports 282, at 292).

2. Case-law prior to R. v. Brown

In the case of R. v. Donovan ([1934] 2 Kings BenchReports, at 498), the accused had beaten with a cane a girl for the purposes ofsexual gratification, with her consent. Swift J held:

"It is an unlawful act to beat another person with such a degreeof violence that the infliction of actual bodily harm is a probableconsequence, and when such an act is proved, consent is immaterial."

In Attorney-Generals Reference (No. 6 of 1980) ([1980]Queens Bench Reports, at 715) where two men quarrelled and decided to fighteach other, Lord Lane CJ in the Court of Appeal had held:

"It is not in the public interest that people should tryto cause or should cause each other actual bodily harm for no good reason. Minorstruggles are another matter. So, in our judgment, it is immaterial whether theact occurs in private or in public; it is an assault if actual bodily harm is intendedand/or caused. This means that most fights will be unlawful regardless ofconsent. Nothing which we have said is intended to cast doubt upon the acceptedlegality of properly conducted games and sports, lawful chastisement orcorrection, reasonable surgical interference, dangerous exhibitions, etc. Theseapparent exceptions can be justified as involving the exercise of a legalright, in the case of chastisement or correction, or as needed in the publicinterest, in the other cases."

3. Case-law subsequent to R. v. Brown

In R. v. Wilson ([1996] 3 Weekly Law Reports, at 125),where a man had been convicted of assault occasioning actual bodily harm forhaving branded his initials with a hot knife on his wifes buttocks with herconsent, the Court of Appeal, Criminal Division, allowed the appeal. In thecourse of the courts judgment, Lord Justice Russell stated:

"... there is no factual comparison to be made between theinstant case and the facts of either Donovan or Brown: Mrs Wilson not only consentedto that which the appellant did, she instigated it. There was no aggressiveintent on the part of the appellant ...

...

We do not think that we are entitled to assume that the method adoptedby the appellant and his wife was any more dangerous or painful than tattooing...

Consensual activity between husband and wife, in the privacy ofthe matrimonial home, is not, in our judgment, a proper matter for criminalinvestigation, let alone criminal prosecution."

B. Offences against public decency

Keeping a "disorderly house" is a common lawoffence. A disorderly house is defined as

"one which is not regulated by the restraints of moralityand which is so conducted as to violate law and good order. There must be anelement of open house, but it does not need to be open for the public atlarge ... Where indecent performances or exhibitions are alleged as renderingthe premises a disorderly house, it must be proved that matters are there performedor exhibited of such a character that their performance or exhibition in aplace 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 thepublic interest so as to call for condemnation and punishment" ([1996]Archbolds Criminal Pleading, Evidence and Practice 20, at 224).

PROCEEDINGS BEFORE THE COMMISSION

Mr Laskey, Mr Jaggard and Mr Brown applied to the Commissionon 14 December 1992. They relied on Articles 7 and 8 of the Convention (art. 7,art. 8), complaining that their convictions were the result of an unforeseeableapplication of a provision of the criminal law which, in any event, amounted toan unlawful and unjustifiable interference with their right to respect fortheir private life.

On 18 January 1995, the Commission declared theapplications (nos. 21627/93, 21826/93 and 21974/93) admissible as to thecomplaint under Article 8 of the Convention (art. 8). In its report of 26October 1995 (Article 31) (art. 31), it expressed the opinion, by eleven votesto seven, that there had been no violation of that provision (art. 8).

The full text of the Commissions opinion and of the twoseparate opinions contained in the report is reproduced as an annex to thisjudgment[3].

FINAL SUBMISSIONS TO THE COURT

At the hearing, the Government invited the Court to agreewith the majority of the Commission that there had been no breach of theConvention in this case.

The applicants, for their part, asked the Court to consider theposition of each individual applicant upon the basis of the agreed facts andthe charges which were pertinent to them and to find a violation of their rightto respect for their private lives through the expression of their sexualpersonality, as guaranteed by Article 8 of the Convention (art. 8).

AS TO THE LAW

ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION (art. 8)

The applicants contended that their prosecution andconvictions for assault and wounding in the course of consensualsado-masochistic activities between adults was in breach of Article 8 of theConvention (art. 8), which provides:

"1. Everyone has the right to respect for his private and familylife, his home and his correspondence.

2. There shall be no interference by a public authority with theexercise of this right except such as is in accordance with the law and isnecessary in a democratic society in the interests of national security, publicsafety or the economic well-being of the country, for the prevention of disorderor crime, for the protection of health or morals, or for the protection of therights and freedoms of others."

It was common ground among those appearing before the Courtthat the criminal proceedings against the applicants which resulted in theirconviction constituted an "interference by a public authority" withthe applicants right to respect for their private life. It was similarlyundisputed that the interference had been "in accordance with thelaw". Furthermore, the Commission and the applicants accepted theGovernments assertion that the interference pursued the legitimate aim of the"protection of health or morals", within the meaning of the secondparagraph of Article 8 (art. 8-2).

The Court observes that not every sexual activity carriedout behind closed doors necessarily falls within the scope of Article 8 (art.8). In the present case, the applicants were involved in consensualsado-masochistic activities for purposes of sexual gratification. There can beno doubt that sexual orientation and activity concern an intimate aspect ofprivate life (see, mutatis mutandis, the Dudgeon v. the United Kingdom judgment of 22 October 1981, Series A no. 45, p. 21, para. 52). However, aconsiderable number of people were involved in the activities in question whichincluded, inter alia, the recruitment of new "members", the provisionof several specially equipped "chambers", and the shooting of manyvideotapes which were distributed among the "members" (see paragraphs8 and 9 above). It may thus be open to question whether the sexual activitiesof 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 thoseappearing before it, the Court sees no reason to examine it of its own motionin the present case. Assuming, therefore, that the prosecution and convictionof the applicants amounted to an interference with their private life, thequestion arises whether such an interference was "necessary in ademocratic society" within the meaning of the second paragraph of Article8 (art. 8-2).

"Necessary in a democratic society"

The applicants maintained that the interference in issuecould not be regarded as "necessary in a democratic society". Thissubmission was contested by the Government and by a majority of the Commission.

In support of their submission, the applicants allegedthat all those involved in the sado-masochistic encounters were willing adultparticipants; that participation in the acts complained of was carefullyrestricted and controlled and was limited to persons with like-mindedsado-masochistic proclivities; that the acts were not witnessed by the publicat large and that there was no danger or likelihood that they would ever be sowitnessed; that no serious or permanent injury had been sustained, no infectionhad 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 theapplicants activities by chance (see paragraph 8 above).

The potential for severe injury or for moral corruption wasregarded by the applicants as a matter of speculation. To the extent thatissues of public morality had arisen - with reference to Mr Laskeys convictionfor keeping a disorderly house and for the possession of an indecent photographof a child (see paragraph 11 above) - these had been dealt with under therelevant sexual offences provisions and appropriately punished. In any event,such issues fell outside the scope of the case as presented before the Court.

The applicants submitted that their case should be viewedas one involving matters of sexual expression, rather than violence. With dueregard to this consideration, the line beyond which consent is no defence tophysical injury should only be drawn at the level of intentional or recklesscausing of serious disabling injury.

For the Government, the State was entitled to punish actsof violence, such as those for which the applicants were convicted, that couldnot be considered of a trifling or transient nature, irrespective of theconsent of the victim. In fact, in the present case, some of these acts couldwell be compared to "genital torture" and a Contracting State could not be said to have an obligation to tolerate acts of torture because they arecommitted in the context of a consenting sexual relationship. The State wasmoreover entitled to prohibit activities because of their potential danger.

The Government further contended that the criminal law shouldseek to deter certain forms of behaviour on public-health grounds but also forbroader moral reasons. In this respect, acts of torture - such as those inissue in the present case - may be banned also on the ground that theyundermine the respect which human beings should confer upon each other. In anyevent, the whole issue of the role of consent in the criminal law is of greatcomplexity and the Contracting States should enjoy a wide margin ofappreciation to consider all the public-policy options.

The Commission noted that the injuries that were or couldbe caused by the applicants activities were of a significant nature anddegree, and that the conduct in question was, on any view, of an extremecharacter. The State authorities therefore acted within their margin of appreciationin order to protect its citizens from real risk of serious physical harm orinjury.

According to the Courts established case-law, the notionof necessity implies that the interference corresponds to a pressing socialneed and, in particular, that it is proportionate to the legitimate aimpursued; in determining whether an interference is "necessary in ademocratic society", the Court will take into account that a margin ofappreciation is left to the national authorities (see, inter alia, the Olssonv. Sweden (no. 1) judgment of 24 March 1988, Series A no. 130, pp. 31-32, para.67), whose decision remains subject to review by the Court for conformity withthe requirements of the Convention.

The scope of this margin of appreciation is not identical ineach case but will vary according to the context. Relevant factors include thenature of the Convention right in issue, its importance for the individual andthe 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 considers that one of the roles which the Stateis unquestionably entitled to undertake is to seek to regulate, through theoperation of the criminal law, activities which involve the infliction ofphysical harm. This is so whether the activities in question occur in thecourse of sexual conduct or otherwise.

The determination of the level of harm that should betolerated by the law in situations where the victim consents is in the firstinstance a matter for the State concerned since what is at stake is related, onthe one hand, to public health considerations and to the general deterrenteffect of the criminal law, and, on the other, to the personal autonomy of theindividual.

The applicants have contended that, in the circumstancesof the case, the behaviour in question formed part of private morality which isnot the States business to regulate. In their submission the matters for whichthey were prosecuted and convicted concerned only private sexual behaviour.

The Court is not persuaded by this submission. It is evidentfrom the facts established by the national courts that the applicantssado-masochistic activities involved a significant degree of injury or woundingwhich could not be characterised as trifling or transient. This, in itself,suffices to distinguish the present case from those applications which havepreviously been examined by the Court concerning consensual homosexual behaviourin private between adults where no such feature was present (see the Dudgeonjudgment 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 Ano. 259).

Nor does the Court accept the applicants submission thatno prosecution should have been brought against them since their injuries werenot severe and since no medical treatment had been required.

In deciding whether or not to prosecute, the State authoritieswere entitled to have regard not only to the actual seriousness of the harmcaused - which as noted above was considered to be significant - but also, asstated by Lord Jauncey of Tullichettle (see paragraph 21 above), to thepotential for harm inherent in the acts in question. In this respect it isrecalled that the activities were considered by Lord Templeman to be"unpredictably dangerous" (see paragraph 20 above).

The applicants have further submitted that they weresingled out partly because of the authorities bias against homosexuals. Theyreferred to the recent judgment in the Wilson case (see paragraph 30 above),where, in their view, similar behaviour in the context of a heterosexual couplewas not considered to deserve criminal punishment.

The Court finds no evidence in support of the applicantsallegations in either the conduct of the proceedings against them or the judgmentof the House of Lords. In this respect it recalls the remark of the trial judgewhen passing sentence that "the unlawful conduct now before the courtwould be dealt with equally in the prosecution of heterosexuals or bisexuals ifcarried out by them" (see paragraph 11 above).

Moreover, it is clear from the judgment of the House of Lordsthat the opinions of the majority were based on the extreme nature of thepractices involved and not the sexual proclivities of the applicants (seeparagraphs 20 and 21 above).

In any event, like the Court of Appeal, the Court does notconsider that the facts in the Wilson case were at all comparable inseriousness to those in the present case (see paragraph 30 above).

Accordingly, the Court considers that the reasons givenby the national authorities for the measures taken in respect of the applicantswere relevant and sufficient for the purposes of Article 8 para. 2 (art. 8-2).

It remains to be ascertained whether these measures wereproportionate to the legitimate aim or aims pursued.

The Court notes that the charges of assault were numerous andreferred 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. Itfurther notes that, in recognition of the fact that the applicants did notappreciate their actions to be criminal, reduced sentences were imposed onappeal (see paragraphs 15-17 above). In these circumstances, bearing in mindthe degree of organisation involved in the offences, the measures taken againstthe applicants cannot be regarded as disproportionate.

In sum, the Court finds that the national authoritieswere entitled to consider that the prosecution and conviction of the applicantswere necessary in a democratic society for the protection of health within themeaning of Article 8 para. 2 of the Convention (art. 8-2).

In view of this conclusion the Court, like theCommission, does not find it necessary to determine whether the interferencewith the applicants right to respect for private life could also be justifiedon the ground of the protection of morals. This finding, however, should notbe understood as calling into question the prerogative of the State on moralgrounds to seek to deter acts of the kind in question.

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 publichearing in the Human Rights Building, Strasbourg, on 19 February 1997.

RudolfBERNHARDT

President

HerbertPETZOLD

Registrar

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 ofMr Pettiti is annexed to this judgment.

R. B.

H. P.

[1]The case is numbered 109/1995/615/703-705. The first number is the case'sposition 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 listof cases referred to the Court since its creation and on the list of thecorresponding originating applications to the Commission.

[2]Rules A apply to all cases referred to the Court before the entry into force ofProtocol No. 9 (P9) (1 October 1994) and thereafter only to cases concerningStates not bound by that Protocol (P9). They correspond to the Rules that cameinto force on 1 January 1983, as amended several times subsequently.

[3]For practical reasons this annex will appear only with the printed version ofthe judgment (in Reports of Judgments and Decisions 1997-I), but a copy of theCommission's report is obtainable from the registry

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You are here:BAILII >>Databases >>European Court of Human Rights >> LASKEY AND OTHERS v. THE UNITED KINGDOM - 21627/93 21826/93 21974/93 - Chamber Judgment [1997] ECHR 4 (19 February 1997) URL:https://www.bailii.org/eu/cases/ECHR/1997/4.html Cite as: 24 EHRR 39,[1997] 24 EHRR 39,[1997] ECHR 4,(1997) 24 EHRR 39