Blurred Line Of Legal And Ethical Arguments

The decision in the case R v Brown brings up many legal and ethical arguments. Most of the time, they are intertwined with each other, i.e. many of the legal decisions spark ethical arguments and vice- versa. The line between legal and ethical decisions seems to be blurred. The main legal themes of the decision are the importance of consent, the lawfulness of private act or the lack of it, public policy (decided by parliament and not by the courts) and public harm. The main ethical themes of the decision are: should an individual’s right be sacrificed for that of society and the setup of an absolute moral standard. In this essay I’ll be showing the moral and ethical dilemmas faced by the judges, using the famous Hart v Devlin debate and applying the examples of torture, euthanasia, headscarves and pornography to critically analyse the decision reached in the above case.

The appellants were members of a group of homosexuals who performed and took part willingly in sado-masochistic acts with each other. They recorded their activities, copied and distributed the videos to members of the group. They had no intention of selling or distributing the videos to the public. They were arrested and tried when these videos were found. They were charged under the Offences against the Person Act. The trial judge ruled that consent was not a defence. The appellants pled guilty and then applied to the court of appeals on the basis that consent was indeed relevant. It was dismissed by the court of appeals. They appealed to the House of Lords. The House of Lords dismissed it by a 3:2 majority holding that it was not necessary to prove lack of consent.

The majority approach, i.e. Lords Templeman, Jauncey and Lowry start by saying that an act that causes actual bodily harm is unlawful and an offence. They state that consent even though given has no precedence in the case. If an unlawful act has taken place, lack of consent does not have to be proven to find the culprit guilty. On this basis they say that consent has no bearing on the case. They however do on to give examples such as boxing and various other sports as exceptions to the general rule. The Lords say that if it has a bearing on public interest, then consent or lack of it thereof is no longer necessary to be proven. Nevertheless the lords do go on to cast doubt on the consent given by the participating members of the group. Saying that the youth of the participants were fed with drink and drugs that could possibly affected their ability to make decisions and hence has had a subsequent effect on their consent. They go on to state that “society has a right to protect itself against a ‘cult of violence’ and such a right takes place over an individual’s freedom of action" (Giles M). They basically state that society matters over the individual. Exactly how society is harmed by a private act done by consenting individuals is not clearly dealt with in the judgments given by the above Lords. The Lords most probably reached their decision on the basis of the public policy brought about by the government of that time, i.e. homosexual sado-masochistic acts are looked down upon by the society and are hence prohibited. As the Lords put it, its parliament that forms the public policy and not the judiciary.

The minority approach, i.e. Lord Mustill and Lord Slynn found that consent is indeed relevant to the case. Lord Mustill however gave an exception, saying that there must come a point where the harm caused is so severe that the consent given by the parties involved becomes irrelevant. He also mentions in his judgement that he goes through each case and situation and deals with them in the context they come in rather than apply a general rule. His judgment, contrary to Lord Lowry, is against the use of public interest to remove the defence of consent because of harm, and then use it again to re-create it in some cases. Thus he says that it’s the creation of a new crime. The only reason for the creation of a new crime is the same reason used by the other Lords in their judgements, i.e. protection of society and corruption of the young and physical risks. He says that none of the above arguments by the other lords are good enough to justify criminalising otherwise lawful conduct. Lord Mustill states that its parliaments job to make the law, and if they deemed it illegal, then they should introduce a law that says so. He clearly states that the Lords role is to interpret the law and under his interpretation of it, the act is legal. One can say that he does not go about looking for reasons to make it illegal.

Lord Slynn give a more narrow and basic judgement. He differentiates between grievous bodily harm and lesser harms. He states that because this case does not involve any grievous bodily harm, the issue of consent is effective. According to Lord Slynn’s judgement and interpretation of the statute, there is no need to take into consideration other issues such as freedom of expression, issue of privacy or the effect on public interest.

The differences in judgments of the Lords are quite clear. The majority, i.e. Lords Templeman, Jauncey and Lowry start at the basic premise that the act committed is already criminal in nature and the question they ask themselves is, ‘should they decriminalise it’? Whereas, the minority in the decision, Lord Mustill in particular, starts at the basic premise that the act committed is legal and whether the law should be used and interpreted in such a way so as to make it a criminal offence. As the Lords have repeatedly shown, by their reluctance to make it legal and decriminalise it, often saying its parliaments job to change the law and not the judges, it can be concluded that it is harder to decriminalise an act. Thus it is shown that the starting point of the Lords decisions was flawed.

The main ethical problem brought about by the decisions taken by both the majority and the minority of the lords are should the law act as a greater good, i.e. as an enforcer of morals for society; should society take precedence over the individual, which brings about the theories of Utilitarianism (the greatest good for the greatest number of people), its opposite kantism, it also brings about the Hart and Devlin debate.

The main argument put forward by the decision by the majority of the lords is that even though it is a private act and consent was given, it is irrelevant on the basis that the public is harmed. How the public is harmed is neither clearly nor directly mentioned, something was vaguely mentioned about the corruption of youth. They give no regard to the fact that a person has full control over his body, and that he can do anything he wants with it. Indeed the Lords put up the argument that drugs are banned for this very reason, so that a human being does not abuse his own body. The majority of the lords in their judgement basically infringe on the rights of the individual so that society can benefit. Regardless of the fact that it was a private act done by consenting adult members of the society. Thus an act is found to be criminal because it was considered immoral by the public.

This brings about the Hart v Devlin debate. As mentioned above and can be seen from the judgement, majority of the lords sided (knowingly or unknowingly) with the arguments produced by Devlin. Devlin believed that law is used to police morals. Even acts that are private to an individual are illegal. They are morally unacceptable if ordinary reasonable people held them to be so. Because the law is there to police morality, acts that are morally unacceptable are illegal. Even though homosexuality was legal at the time, the acts that took place, i.e. of sado- masochistic, were found to be morally unacceptable by the public, hence the lords could have possibly be influenced by the nature of the acts and could have interpreted them to be illegal. Their judgements follow the utilitarian view.

There are many examples in which society is directly or indirectly benefited by infringing upon the rights of the individual. Torture, pornography and use of headscarves are some modern day ethical and moral issues in which the individual’s rights have been curbed for the benefit of society. Although it is still morally unacceptable to torture an individual, people look the other way during certain circumstances. Say for example, a terrorist has placed a bomb. People would agree that torture is justifiable so long as the bomb is found and people’s lives are saved. Thus during certain circumstances, the end justifies the means. Another example would be pornography, if an individual watches a sexual act on video played by two or more willing people in the privacy of his house, it is still illegal. Even though there is no effect on the rest of the people. It is deemed to be so, because society finds it immoral. And as Devlin believed, if society finds an act immoral, then by nature it is criminal. Headscarves are another volatile issue, France recently forbid the wearing of headscarves in public institutions because it degrades women and because of the less publicised terrorism issue. This infringes on the right of a person to wear what he or she wants. Freedom of fashion we can call it. Thus the above examples clearly show how the individuals rights are directly and clearly curbed and removed for the benefit of the society as a whole, even if there are no factors directly affecting it. It is not to be forgotten that there are obvious exceptions to the above examples. Those such as paedophilia and women’s rights are a few such examples.

The approach taken by Lord Mustill and Lord Slynn focuses on the rights of the individual and the defence of consent. Lord Mustill in particular with his judgement fervently opposed the use of public interest as a weapon so as to find the men guilty. The judgement in fact agreed with H.L.A Hart’s policy which stated that law has no business interfering with private acts that do not harm anybody. The judgement focuses on the fact that a person’s body is his own will and so long as the harm caused is not permanent or too grievous, consent is sufficient so as not to be prosecuted. This reasoning is thus the exact opposite of what is mentioned in the majority judgement.

As shown above, we have seen how law and morality are entwined together; we have seen how the Lords have interpreted the law and the morality regarding the issue so as to pass an (un)fair judgment. We live in a world where the numbers matter, thus the outcome of the case cannot be all surprising. The majority or the society will always take precedence over the individual. But I would be quite unhappy if it were my rights that were being infringed upon. Wouldn’t you?