Clashes of Principle and Competing Moral Judgments

AuthorFrederic Reynold
Pages27-53

PART TWO


CLASHES OF PRINCIPLE AND COMPETING MORAL JUDGMENTS

In the early 1960s much interest centred on the so-called Hart-Devlin debate arising from the publication of Lord Devlin’s book, The Enforcement of Morals and Professor Herbert Hart’s celebrated work, The Concept of Law. The background to, and to some extent the pretext for, that debate was a clutch of cases heard by the Law Lords which were concerned with criminality, sex and marital behaviour, all of which provoked strong disagreement within their ranks. For example, one such case (the so-called Ladies Directory case1) raised the issue whether there was such an offence as a conspiracy to corrupt public morals. Following the introduction of the Street Offences Act 1959 (intended to deter soliciting by prostitutes), a booklet was published entitled The Ladies Directory which consisted of advertisements inserted and paid for by prostitutes, disclosing their names and addresses and relevant details. Its publisher was charged, inter alia, with conspiring with persons unknown to corrupt public morals. It was common ground that the charge was a novel one. The majority view was encapsulated in the quaint, high-flown rhetoric of Lord Simonds. Having prayed in support the statement of the eighteenth-century Chief Justice Lord Mansfield that the courts have the power to “superintend offences which are prejudicial to public welfare”, Lord Simonds went on:

Let it be supposed that at some future date homosexual practices between adult consenting males are no longer a crime. Would it not be an offence if ... such practices were publically advocated and encouraged by pamphlet and advertisement. Or must we wait until Parliament finds time to deal with such conduct? I say, my Lords, that if the Common Law is powerless in such an event, then we should no longer do her reverence. But I say that her hand is still powerful and that it is for Her Majesty’s judges to play the part which Lord Mansfield pointed out to them.

1Shaw v Director of Public Prosecutions [1961] UKHL 1, [1962] AC 220.

28 Disagreement and Dissent in Judicial Decision-making

This attracted a sharp retort from Lord Reid, one of the most outstanding of post-war Law Lords:

Parliament is the proper place ... the only proper place to settle [the question whether and in what circumstances the law should punish immorality]. When there is sufficient support from public opinion, Parliament does not hesitate to intervene. Where Parliament fears to tread it is not for the courts to rush in ...

Another such case (strictly speaking, two cases but heard together in the House of Lords2) involving an equally sharp divergence of views on an issue with social implications, was concerned with cruelty as a ground for divorce: at the time the divorce laws revolved around the concept of the matrimonial offence. The issue was whether to constitute cruelty the conduct relied on had to be intentionally “aimed at” the other spouse. In the one case the conduct relied on was extreme laziness and financial irresponsibility on the part of a husband, causing the wife continual anxiety and distress; and in the other, persistent and unjustified accusations of adulterous liaisons by a husband who was suffering from a diagnosed condition of paranoid schizophrenia. The majority were strongly of the view that intention was wholly irrelevant: what mattered was whether, seen objectively, the conduct was such that no reasonable person could be expected to put up with it. Why should the wife be condemned to a life of misery and, if she decided to leave in such circumstances, why should she be guilty of desertion? For the minority, intention was at the heart of the matter. A finding of cruelty implied a degree of moral turpitude. Cruelty was a matrimonial offence: it had serious implications and consequences. In neither case did the husband have the intention of harming the wife.

These cases heard in the 1960s involved clashes of principle and competing moral judgments. Such clashes have continued to characterise the disagreements of succeeding generations of Law Lords in cases which raise moral issues or which involve questions as to the role and powers of the courts. For present purposes, five cases illustrate this very well.

(1) IS THIS REALLY CRIMINAL CONDUCT?

Remarkably, the question raised in the Ladies Directory case – namely, whether or when it was open to the courts to hold a particular course of conduct to be criminal – re-emerged in a case heard by the House of Lords

2Gollins v Gollins [1964] AC 644; Williams v Williams [1964] AC 698.

some 30 years later.3To describe the case as unusual is perhaps to understate the position. In the course of conducting an unrelated investigation, the police came across video evidence of a group of men engaged in homosexual sadomasochistic practises which involved the inflicting of wounds on the genital areas and other areas of the body of the consenting victims. Charges were brought under the Offences against the Person Act 1861, of assault occasioning actual bodily harm, resulting in the conviction of those concerned. The Court of Appeal (Criminal Division) upheld the convictions. In the House of Lords, as in the lower courts, the central question was whether consent was a defence to the charges brought.

By a majority of three to two the Law Lords dismissed the appeals. All the Law Lords recognised that none of the precedents referred to in the judgments of the lower courts and cited in the course of argument were directly in point, and that consent could be a defence to a charge of common assault where the “harm” inflicted was trivial or slight and intended to be such. In the absence of helpful precedents, it was inevitable that the willingness or otherwise to invoke public policy and the public interest would play a critical role in determining the outcome. The majority comprised Lords Templeman, Jauncey and Lowry.

In Lord Templeman’s view, the existing case law, which mostly concerned cases involving prize fighting and street fighting, suggested that consent could be a defence to the infliction of bodily harm in the course of some lawful activity, but not otherwise. For Lord Templeman it was clear what the proper approach should be: “The question whether the defence of consent should be extended to the consequences of sadomasochistic encounters can only be decided by considerations of policy and public interest.”; and that whilst Parliament could call on the advice of doctors, psychiatrists, criminologists, sociologists and other experts and also take into account public opinion, if it were to consider legislation on the matter, the question had to be decided here and now by the House of Lords in its judicial capacity.

His response to the argument that consent was a defence “because every person has a right to deal to deal with his body as he pleases ...”, was that he considered this to be simply a slogan which did not really help as to the policy decision which now had to be made. He was also not impressed by the argument that the sexual appetites of sadists and masochists could only be satisfied by the infliction of bodily harm, and that the law should not

3R v Brown [1992] UKHL 7, [1994] 1 AC 212.

30 Disagreement and Dissent in Judicial Decision-making

punish the “consensual achievement of sexual satisfaction.” In his view sadomasochism was not just concerned with sex: it was also concerned with violence. The practises revealed by the evidence in the present case “were unpredictably dangerous and degrading to body and mind” and involved the use of drink and drugs to obtain consent and increase enthusiasm. In principle, so Lord Templeman argued, there is a difference between violence which is incidental and violence which is inflicted “for the indulgence of cruelty.” He was not prepared “to invent a defence for sadomasochistic encounters which breed and glorify cruelty” and which attract serious charges under the Offences against the Person Act 1861. In his view “Society is entitled and bound to protect itself against a cult of violence. Pleasure derived from the infliction of pain is an evil thing. Cruelty is uncivilised.”

Lord Jauncey concluded that the case law indicated “the infliction of actual or more serious bodily harm is an unlawful activity to which consent is no answer”; and that a line had properly to be drawn between assault at common law and actual and grievous bodily harm cases brought under the Offences against the Person Act 1861. Consent could be a defence to the former but not to the latter. Furthermore, in his view:

it would not be in the public interest that deliberate infliction of actual bodily harm during the course of homosexual sadomasochistic activities should be held to be lawful ... If it is to be decided that such activities as the nailing by A of B’s foreskin or scrotum to a board ... are injurious neither to B, C and D nor to the public interest, then it is for Parliament with its accumulated wisdom and sources of information to declare them to be lawful.

Lord Lowry agreed with Lords Templeman and Jauncey that in principle consent cannot be a defence to a statutory charge of causing actual bodily harm. For him the critical question was whether an exception should be made in the case of consensual sadomasochistic practises. His answer was an emphatic: No. The case advanced on behalf of the appellants, he pointed out, entailed the proposition that “the deliberate and painful infliction of physical injury should be exempted from the operation of [the Offences against the Person Act 1861], the object of which was to...

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