The principle of autonomy

One principle that administers the Parliament’s decision before criminalizing something is the principle of autonomy. Many commented that the right of autonomy or in other words the right of living one’s live as one pleases is important [3] . Criminal law is used to avoid somebody’s practice of autonomy from interfering with another person’s autonomy. Another component of the principle of autonomy is that autonomy allows consenting homosexual to be in a relationship. Assuming that according to the law, it is illegal to be engaged in a homosexual relationship. It would interfere and affect many people who are homosexual to live the way they prefer. According to the principle of autonomy when an activity that causes harm to the society is prohibited by the law [4] .

In addition, the harm principle is also looked at by the Parliament. John Stuart Mill in his renowned essay, On Liberty states that the harm principle plays an important role in the society. He has argued that the power of the government being used on citizens either to protect them in terms of physical or moral is lacking warrant. This is because others might see it as a right or wise thing to do. [5] This was supported by Hamish Stewart that has argued that despite the degree of harm that could be inflicted, people have a right to exercise any conduct when it is being consented. [6] The harm principle has received strong supports from many. One of the popular supporters is Joel Feinberg. Douglas Husak in his article [7] had summarized Feinberg’s theory. In Douglas Husak article, Joel Feinberg gave a defence that he calls as the liberal theory of law. According to this theory, a consensual harmful conduct is not supposed to be punished. For example, one’s action might be immoral but it does not harm anyone, thus, his actions should not be punished because no one was hurt. Therefore, criminal sanctions should only be used if the reason for using it is to protect an individual’s right.

The Human Rights Act 1998 (HRA) was taken in to account by the courts. This act is created in order to protect one’s right under the European Convention on Human Rights (ECHR). There are quite a number of rights that can be found in the ECHR. The HRA can affect the decisions of the court under certain circumstances. This is because the courts are obliged to interpret all the legislation under the HRA 1998. The decisions of the courts must not contravene with the ECHR [8] . If there is an infringement on the defendant’s Convention rights the courts have to reexamine on the case again [9] .

Consent is a crucial element that governs the courts in decision making. This can be seen in the case of R v. Brown [10] . The appellants were involved in consensual homosexual sado-masochistic activities for over ten years. The partakers of sado-masochistic consented to it and no persistent injury was inflicted. The appellants were charged under section 47 and section 20 of the Offences Against the Person Act 1861 for an assault causing actual bodily harm as well as unlawful wounding. However, the appellants used consent as a defence. The majority held that consent should not be a defence to sado-masochistic activities that causes the offence of inducing actual bodily harm under section 47 of the Act. One of the reasons is because the participants could not foretell the degree of bodily harm that could be caused due to sadomasochism activity. To many people including Lord Templeman, sado-masochism does not only relate to sexual activities but it is also an act of violence. Lord Templeman said that

“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 uncivilized".

The majority also held that the involvement in sado-masochistic activities could lead to infection of harmful diseases such as AIDS. It is difficult to control the spread of such diseases when they are under the influence of drugs, drink and sexual excitement.

On the other hand, the minority has argued that it is undeniable that there is a risk of getting harmful diseases such as genitourinary infection and other septicaemia problems from the activity of sadomasochism. However, due to the modern medical science development the risk of getting infected can be significantly reduced. Lord Mustill has also clearly demonstrated that since consenting buggery between adult males are made legal, hence, it is unreasonable to penalise sado-masochistic participants because after all both activities involved the risk of spreading infectious diseases such as AIDS. His Lordship also fears that these activities would be practice by youth and they would be subjected to the offences under the 1861 Act [11] . Later, the appellants appealed to the ECHR in Laskey, Jaggard and Brown v United Kingdom [12] . The appellants raised the topic that there was an infringement with the right to private life of the appellants according to article 8 (2) of the European Convention on Human Rights (ECHR). Nevertheless, the appeal was dismissed as it was necessary in a democratic society in order to protect the society. The appellants later proposed that they were treated differently by the authorities because they were homosexuals. The courts held that there was no evidence to back up their allegations. However, some commentators raised the issue of prostitutes being beaten up frequently during their sexual encounters [13] .

It is clear that the case of Brown [14] was criticized by many. The majority took a traditional approach while the minority took a more liberal approach in Brown. The majority took the issue of violence quite seriously. Some argued that violence is presumed as an act that opposes someone’s will but in Brown, the victims felt that the pain and injury was enjoyable instead of displeasing. The minority felt that this case concerns about sexual activities which are consented and done in private. However, the courts held that consent can only be a defence to battery or an assault but not a defence to actual bodily harm or other serious injury except when it falls under the category of exception. For example, when playing a sport, tattooing or body piercing which falls under the category of exception, the defendant’s purpose was not to inflict pain or cause harm while in Brown, the defendant’s intention was to cause pain [15] . This creates a contradiction on the principle of consent. The minority has argued that if private sexual activities between consenting adults causes harm to the public then only it should be considered as an illegal act.

Paul Roberts in his journal Consent in the Criminal Law [16] uses the approach of liberalism in the case of Brown. In the approach of liberalism, he states that a country’s most forceful way of controlling a society is through criminalization. Paul Roberts also quoted in his journal that Joseph Raz mentioned in his book entitled ‘The morality of freedom’ [17] that criminal punishment coercion is an intrusion of freedom and the coercion provide no realistic approach that can be sure to prevent the victim from choosing a repugnant option. Paul Roberts commented that when a person consented fully to a conduct it is not wrong. This is shown by the principle of law found in the ancient maxim which was used in Roman Law that says Volenti non fit injuria when it is translated it means no wrong is done to a person who consents. According to the principle of harm, Paul Roberts mentioned in his journal, a person cannot be wronged by another when he hurt himself willing with knowledge of the consequences that might occur. From the liberal perspective, it will only approve criminalization when the act is an extreme and unavoidable act but however, criminalization can never be applied when the act is done in private. The liberal will be very careful when using criminal law to punish someone because in their view every act done would offend somebody due to different opinions. Nevertheless, liberalism does not oppose the idea that morality should not be enforced to prevent the act of crimes. However, the liberalism applies moral values in a different way compared to legal moralism. In liberalism, morality is practiced based on the harm principle.

Another approach was taken by the courts in Airedale NHS Trust v Bland [18] .According to the law, Anthony Bland who was suffering from persistent vegetative state is considered as still alive but he can be said to be a living death. This is because he was being fed through a nasogastric tube. The court held that the doctors must act in the best interest of the patient. It is said that Anthony Bland being in a persistent vegetative state does not benefit him. In Bland, the courts have to decide whether removing the tube is an act or an omission. Since Anthony Bland had no means of recovering from his current condition, the courts held that the removal of life support is the patient’s best interest. Lord Goff held that the conduct of the doctor to break off life support in order for his patient to die slowly from his current condition is said to be an omission rather than an act [19] . Omission basically means that it is not liable when a person fails to act and is only guilty when he or she is under a duty to act [20] . There are arguments to support it that says feeding a patient through nasogastric tube is not part of a medical treatment and it is considered as feeding by normal means. Lord Goff held that the doctor is not obliged to continue treating the patient if the patient has no means of recovering. In law, the act of euthanasia is not a lawful act. Many individuals claimed that euthanasia should be made legal because it is more humane to stop a person from suffering by putting an end to his or her life instead letting him or her to endure the pain while waiting for his death. Some individuals argued that it is immoral to allow euthanasia in Bland and it infringes article 2 of the ECHR which is the right to life and it is the most basic rights.

The principle of self-determination was raised in Bland and it was not exercised in this case. Self-determination can be explained as a freedom of an individual to decide on the choice of living one’s life as one pleases. One more question that arises here is whether there is an infringement of the principle of sanctity of life [21] . Regarding the principle of sanctity of life, Hoffmann L.J. quoted that

“ We have a strong feeling that there is an intrinsic value in human life, irrespective of whether it is valuable to the person concerned or indeed to anyone else. Those who adhere to religious faiths which believe in the sanctity of all God’s creation and in particular that human life was created in the image of God himself will have no difficulty with the concept of the intrinsic value of human life. No law which ignores them can possibly hope to be acceptable. “ [22] 

The principle of necessity also played a role in some cases. The leading case is for the principle of necessity is Re A (Children) (Conjoined Twins: Medical Treatment) [23] it concerns about a conjoined twin, Mary and Jodie. The question here is whether it is lawful to allow the doctors to carry out an operation to separate Mary and Jodie but by doing so it would cause the death of Mary. However, if the surgery is not done, both Mary and Jodie will die. The courts have to look into certain situations before making a decision. First of all, the courts have to look at the best interest of the children. Secondly, if those interest collide, could it be settled and let one overrule the other and lastly, could the operation be performed legally if the prevailing one was in favour of the operation [24] . The doctrine of necessity plays a crucial role. It was used as a defence in order to make the operation lawful. According to Sir James Stephen, the use of the doctrine of necessity is based on three conditions. Firstly, the act is necessary to avoid inevitable and irreparable evil. Secondly, it is necessary in order for the purpose to be reached. Thirdly, the evil caused must not be more than the evil avoided [25] . Basically, the principle of necessity is not about whether the defendant was forced to act in order to protect himself from aggression or the defendant was forced to act in order to prevent approaching death or grave injury but it was the decision of the defendant to act to prevent a greater evil [26] . The court held that all the three conditions stated are found in this case. This is because, the need to kill the weaker twin is important or else both Mary and Jodie would die.

In order for a criminal sanction to take place judges and law lords need to take in to account many conditions and principles before coming to a conclusion. This is because today’s society would prefer a more liberal approach. Courts are starting to look at the Human Rights Act 1998 and other elements more seriously. The fundamental elements for an act to be considered as an act of crime are no longer sufficient. There are still rooms for improvement to make the world a better place.