Laskey v The United Kingdom: Learning the Limits of Privacy
| Published date | 01 January 1998 |
| DOI | http://doi.org/10.1111/1468-2230.00129 |
| Author | Leslie J. Moran |
| Date | 01 January 1998 |
Laskey vThe United Kingdom: Learning The Limits of
Privacy
Leslie J. Moran*
RvBrown and others
1
is a House of Lords decision that has been surrounded
by considerable controversy.
2
In that case a three to two majority confirmed
that consensual relations concerned with giving and receiving pain for purposes
of sexual pleasure were unlawful under sections 20 and 47 of the Offences
Against the Person Act 1861.
3
On 19 February 1997 a new dimension was
added to the controversy; the European Court of Human Rights pronounced
judgment in the case of Laskey, Jaggard and Brown vThe United Kingdom
4
which had been brought before the Strasbourg court by three of the defendants
in Brown.
The terms of the legal controversy that surrounded the original House of Lords
majority decision in Brown were given voice in the various commentaries and
articles that followed in its wake. Some welcomed the decision on the basis that it
marked a shift in judicial attitudes to protect vulnerable people, particularly
women, from violence.
5
Others attacked the majority decisions on the basis that
they: complicated the burden of proof;
6
were based on inconclusive authorities and
arbitrary distinctions; provided no clear guidance either to judges or citizens about
The Modern Law Review Limited 1998 (MLR 61:1, January). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 77
* Department of Law, Lancaster University.
2 See for example, B. Thompson, Sadomasochism (London: Cassell, 1994); cf C. Stychin, Law’s Desire
(London: Routledge, 1995) ch 7; C.C. Stanley, ‘Sins and Passions’ (1993) 4(2) Law and Critique 207;
S. Duncan, ‘Law’s Sexual Discipline: Visibility, Violence, and Consent’ (1995) 22(3) Journal of Law
and Society 326; L. Bibbings and P. Alldridge, ‘Sexual Expression, Body Alteration, and the Defence
of Consent’ (1993) 20(3) Journal of Law and Society 356; L.J. Moran ‘Violence and the Law: the
Case of Sado-Masochism’ (1995) 4(2) Social and Legal Studies 225. Nor has critical commentary
been confined to scholarship in the UK for example in Australia the decision has been subject to
critical commentary in the ‘Model Criminal Code: Division 31 — Defences’ (1996) Model Criminal
Code Officers Committee of the Standing Committee of the Attorney General. See also A. Howe,
‘Fictioning Consent in (Sexual) Assault Cases’ Critical InQueeries (1996) volume 1(3) 35.
3 The defendants were originally convicted and sentenced to imprisonment in December 1990. Laskey
was sentenced to imprisonment for a total of four years and six months. This included a concurrent
sentence of twelve months’ imprisonment in respect of various counts of assault occasioning actual
bodily harm and aiding and abetting assault occasioning actual bodily harm under section 47. Jaggard
was sentenced to imprisonment for three years. He received two years’ imprisonment for aiding and
abetting unlawful wounding — contrary to section 20 and a further twelve months’ imprisonment for
assault occasioning actual bodily harm, aiding and abetting the same offence, and unlawful wounding.
Brown was sentenced to imprisonment for two years and nine months. He received twelve months’
imprisonment for aiding and abetting assault occasioning actual bodily harm, a further nine months’
imprisonment for assault occasioning actual bodily harm, and a further twelve months’ imprisonment
for further assaults occasioning actual bodily harm. On 19 February 1992, the Court of Appeal,
Criminal Division, dismissed the appeals against conviction. Reduced sentences ranging from three to
six months were imposed.
4 [1997] 2 EHRR 39. Other reports are to be found in The Times 20 February 1997 and The Independent
25 February 1997.
5 S. Edwards, ‘No defence for sado-masochistic libido’ NLJ (1993) 143, 406 and S. Edwards, Sex and
Gender in the Legal Process (London: Blackstone, 1996). ch 2; J. Bradwell ‘Consent to assault and
the dangers to women’ NLJ (1996) 146 1682; W. Wilson, ‘Is Hurting People Wrong?’ Journal of
Social Welfare Law 388.
6 M. Giles, ‘RvBrown: Consensual Harm and the Public Interest’ (1994) 57 MLR 101, 105.
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