Human Rights and English Law - Essay Example

 “[T]here must remain a realm of private morality . . . which is, in brief and crude terms, not the law’s business.” (Wolfenden Report1, 1957.) The topic statement must be viewed and analysed within the context it was made. “Unless a deliberate attempt is to be made by society, acting through the agency of the law, to equate the sphere of crime with that of sin, there must remain a realm of private morality and immorality which is, in brief and crude terms, not the law’s business.”2 The statement is part of the report submitted by the Departmental Committee on Homosexual Offences and Prostitution appointed “to consider . . . the law and practice relating to homosexual offences and the treatment of persons convicted of such offences by the courts.” The Wolfenden Report, in effect, recommends for the shift of English law foundations from Victorianesque legal naturalism to a more legal positivist structure more harmonious with a pluralist, multi-cultural society or state. It is part of the on-going effort to keep criminal law out of consenting adults’ sexual behaviour, homosexuality and prostitution as well as individual or private or personal morality while retaining clear functions: “Our formulation of the function of the criminal law so far as it concerns the subject of this inquiry . . . is to preserve public order and decency, to protect the citizen from what is offensive or injurious, and to provide sufficient safeguards against exploitation and corruption of others, particularly those who are specially vulnerable because they are young, weak in body or mind, inexperienced, or in a state of special physical, official or economic dependence. It is not, in our view, the function of the law to intervene in the private lives of citizens, or to seek to enforce any particular patter of behaviour, further than is necessary to carry out the purposes we have outlined.”3 The committee acknowledged a realm of personal/private morality or immorality within which society and the law should give the individual freedom of choice and action and within which no act of immorality could be a criminal offence unless the same is accompanied by publicly offensive or injurious factors such as corruption, exploitation or public indecency. The committee report sparked the furious Devlin4-Hart5 debate and educated the public of the need for open-mindedness and clarity of reasoning resulting on the clarification of the problems or issues of homosexuality and prostitution, clearly positivist inputs. What previously has been the undoubted mechanism to enforce social morality, criminal law is being hedged out from private behaviour that does not harm other people; a concept that derived its roots from JS Mill’s harm principle.6 The committee recommendation that “homosexual behaviour between consenting adults in private should no longer be a criminal offence,”7 specifically between men over the age of 21, except in the armed forces, led to the passage of the 1967 Sexual Offences Act which replaced the 1861 Offences against Persons Act, the previous law against homosexuality and paved the way to legalizing homosexuality except for some homosexual acts. The age of consent for homosexual men was reduced in 1994 to 18 and in 2001 to 16 while homosexual acts in the armed forces were decriminalised. In May 2003 the Sexual Offences Act 2003 came into force, repealing the sexual offences of buggery and gross indecency and criminalised sexual behaviour that a person knew or ought to have known was likely to cause distress, alarm or offence to others in a public place, including sexual activity in public cruising and ‘dogging’ areas. The new act consolidated five previous statutes, particularly the Criminal Law Amendment Act 1885, Vagrants Act 1898, Incest Act 1908, Criminal Amendment (White Slavery) Act 1912, and Criminal Amendment Act 1922 and further driven by public concern over children. The 1885 act repealed the Contagious Diseases Acts (1864, 1866 and 1869) directed against prostitution. The Crime and Disorder Act 1998 introduced the Anti-Social Behaviour Orders, injunctions and Acceptable Social Behaviour Contracts to control sex-workers. Other coercive measures for police use include banning of prostitutes’ cards in telephone boxes, power to arrest kerb-crawlers and changes brought about by the Sexual Offences Act 2003. The supra-national constitutional effect of the European Community to English law injected extensive human rights legislation over and above domestic statutes and international law on the matter. Most significant to the present topic is Article 8 of the European Convention on Human Rights, adapted to English law by the Human Rights Act, which reads, inter alia: “Everyone has the right to respect for his private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedom of others.” Non-consensual activities are obviously excluded from the scope of the present essay. The development of English legislation and case law was exposed to the tempering influence of the European Human Rights Convention, particularly in homosexual and sado-masochistic activities. As already established above, consensual sexual activity between adults in private that causes no harm is not criminal and the basic age of consent is 16. The guarantee of the right of privacy under the European Convention as established by case law covers private sexual activities and criminal proscription is a clear interference by the state .8 On a case by case basis, the interference must be justified as “necessary in a democratic society.” The previous cases involving consent for homosexual males remains at the age of 16 because the Sexual Offences Act 2003 has remove the element of consent and subjects the offender to prosecution. There are no laws against sado-masochism in Britain and the liability incurred is for assault occasioning actual bodily harm or unlawful wounding. Consent of the victim is not a defense. In the cases of Donovan9 and Brown,10 the intentional infliction of pain in the course of sexual activity is unlawful, notwithstanding consent of the victims. In Wilson11, sexual activity between husband and wife in the privacy of the matrimonial home is not a matter for criminal investigation. The branding in the case was declared to be negligible. Intervention in the case of Emmett12 was occasioned by the degree of actual and potential harm, notwithstanding consent of the partner. The more significant arguments were developed in Laskey,13 pointing out that the prosecution was based on physical harm under the Offences against Person Act 1861 and not on morals. When the acts are done in private between fully competent adults, public morals would not be threatened. It was noted that consent given by sado-masochists may not be true consent at all. This is the same consent that may be obtained from children and other vulnerable persons. This issue of consent is dealt with in the Sexual Offences Act 2003 under the instances of non-consensual offences. The case law under the Sexual Offences Act 2003 on the matter has yet to develop in more significant directions. What matters at the present state of the English society is to go beyond the extant morals and develop the social ethos to imbibe clearer views on the matter, for instance, to understand that prostitution is a social issue that must be dealt with in the economic and psychiatric level because the sex-worker is a victim and not a criminal. Even homosexuality must be approached according to the level of the homosexual himself. Some go beyond social deviance and sexual gratification because the practice can go out of hand and place public health in grave danger. The moral aspect deserves deeper study than government has given. References UK, Wolfenden Committee (1957). Report of the Committee on Homosexual Offences and Prostitution. Cmnd. 247 (London: HMSO) p.24. Devlin, Patrick, (1959) The Enforcement of Morals. London: Oxford University Press, 1973, p. 13. Hart, HLA, 1962 Law, Liberty and Morality. Stanford: Stanford University Press, 1971. Mill, John Stuart (1859). Essay on Liberty. Oxford 1991, p. 14 Dudgeon v UK (1980) 4 EHRR 149, ECHR. Laskey, Jaggard & Brown v UK (1997) 24 EHRR 39 ECHR R v Donovan [1934] 2 KB498, CCA. R v Brown (1993) 2 All ER75 HL R v Wilson (1996) 2 CR App R 241, CA R v Emmett (1999) EWCA 2651, CA Criminal Law Amendment Act 1885 Criminal Amendment (White Slavery) Act 1912 Criminal Amendment Act 1922 Contagious Diseases Acts (1864, 1866 and 1869) Crime and Disorder Act 1998 European Convention on Human Rights Human Rights Act Incest Act 1908 Offences against Persons Act 1861 Sexual Offences Act1967 Sexual Offences Act 2003 Vagrants Act 1898 Read More