Protect the right of the individual to consent

"The jurisprudence with which Article 8, in common with the other terms of the Convention, is rapidly becoming encrusted shows that in order to condemn acts which appear worthy of censure they have had to be forced into the mould of Article 8, and referred to the concept of privacy, for want of any other provision which will serve. I do not deny that privacy of the conduct was an important element in the present case, but I cannot accept that this fact on its own can yield an answer.

" – Lord Mustill, R v Brown (1994)1 The Applicability of Article 8 Article 8 can be one of the most open-ended articles in the convention. It generally, however, uses concepts that are overly concerned with issues regarding privacy but engaged on much more specific levels. For instance one can take 'wire-tapping' that (unless it can be justified) is considered both specifically as an interference with one's correspondence and more widely as an infringement upon one's right to privacy.

It is through this 'specific level' of interference that one can see claims under Article 8 as easier to define and, perhaps, less open ended. However that is not true for all Article 8 claims. Whilst questions of interference with correspondence might be easier to define in the specific those claims that are concerned with an infringement simply upon one's private life do not enjoy such a clear definition. Therefore when one makes an application concerning a breach of the 'private life' limb of Article 8 one must accept that there is a wide scope for all manner of things to be protected.

It is this wide application that allows any person seeking to enforce their 'right' to consent to degrees of harm to claim that the action that they have been prevented from, or punished for, undertaking formed part of their private life in accordance with Article 8. This is even with regard for the many ways in which one might conceive that a person might feel that this particular area of their private life has been infringed upon. It might involve claims of a sporting nature, medical treatment or, more famously, in areas of one's sexual life.

The real question: What level of harm does Article 8(2) allow? The question that then needs to be asked, and questions such as these underpin the legal moralist and paternalistic interpretations of the law, to what degree of harm should one be able to consent? In answering this one needs to have particular regard to section 2 of Article 8 that outlines the extent to which all the provisions in Article 8(1) are to be enjoyed. Tests such as 'in accordance with law', 'necessary in a democratic society', 'for the prevention of crime' and the 'protection of the health or morals…

of others' dominate any considerations on this matter. It will be my main submission throughout that questions of 'consent to harm' are matters to be dealt with on a domestic level, it is not for the European Court of Human Rights to dictate or legislate in such a sensitive area of the criminal law. This is submitted even though the European Court of Human Rights has been viewed by some as the one body that should protect the autonomy of the individual.

It will be demonstrated that this is not always the case, and in this instance the role of the ECtHR is merely to ensure that the country in question has conformed to the tests in Article 8(2). Every breach is subject to a justification The second paragraph of Article 8 allows for interference by the authorities with the protected rights under certain prescribed conditions. It was established above that questions concerning an individual's right to consent to harm could be considered under Article 8(1).

If one is to use Article 8 to protect that 'consensual right' then one must find a way to present the 'allowed interference' as being outside the certain prescribed conditions of Article 8(2). Otherwise, one will not be able to obtain a result that differs from the one received at a national level. Of all the potential limbs of Article 8(2) it would seem that the most likely means by which a person might claim that the breach of their private life is not justified is on the grounds it was not 'necessary in a democratic society' to take such action.

It is obvious, in say criminally prohibited sadomasochism, that such a prohibition will be 'in accordance with the law' and in order 'to protect the health of others'. However, the real elements that an applicant would seek to attack are the moralistic and social grounds for such a prohibition (rather than say the more political-legal reasons), and a challenge to its necessity in a democratic society provides such a platform. 'Necessary in a democratic society'

Much has been made of the opening line of Article 8(2) with much contention resting upon what exactly is necessary in a democratic society. In considering the meaning of such a phrase the Court has often concluded2 that in order to fall within the parameters of 'necessity' various criteria need to be satisfied. First, the interference must correspond to a pressing social need. Second, the response must be proportionate to the legitimate aim pursued.

Finally, the court would have regard for the 'margin of appreciation' and whether the national authorities had gone beyond the leeway afforded to them in adhering to the requirements of the convention. 'Pressing social need' In determining questions of a 'pressing social need' the Court accepted3 that one of the roles which the State is entitled to undertake is the regulation, by the way of the criminal law, of activities involving the infliction of physical harm, whether the activities occur during the course of sexual conduct or otherwise.

In the first instance a determination of the level of harm that should be tolerated by the law in situations where the victim consents is a matter for the State concerned. However, the court has reasoned that the State must still have regard for a balance, on the one hand, between public health considerations and the general deterrent effect of the criminal law, and on the other hand, respect for the personal autonomy of the individual4.

Whilst there is balance between the State's concerns and the autonomy of the individual in areas concerning crime and public health the State's concerns are given much more weight than the individual's autonomy, or rather there exists a quite wide 'margin of appreciation'. The Court would effectively be weakening a State's control in such areas if they created domestically unsanctioned exceptions based on the very different jurisprudence of the ECtHR and this could have a significantly detrimental effect on society as a whole5.

The Court will also look at the seriousness of the harm when deciding exactly how pressing a social need is present. In those instances of sexual violence where the applicant's actions were likened to 'genital torture'6 or 'akin to acts of rape'7 the Court held that these could not be 'ignored as transient or trifling'8. The difficulty that those seeking to use Article 8 to protect their right to consent to harm will face is that so often these cases are concerned with violence of some gravity.

One could submit that this is obviously so for otherwise consent would most probably form a viable defence at domestic law. The inherent trap in this is that if the harm is too serious for domestic law to allow a defence it is more likely that the court will find that there existed a pressing social need to prohibit and punish such conduct. 'Proportionate to a legitimate aim' In addressing the issue of proportionality one must have regard for the measures taken against the applicants and their proportionality in relation to the seriousness of the offence.

If we are to assume, as submitted above, that only those cases concerning violence of a certain gravity are relevant to an Article 8 claim then proportionality can be linked to the number of charges, the length of the sentence given or even the distance between the act and the charge. In all these instances it is likely that a domestic judicial system will have either precedent or strict guidelines as their guide which will no doubt be easy to justify in relation to proportionality.