Should the law intervene in areas, which it maybe argued, are purely matters of private morality, especially when it concerns sexual morality?

Before the 1960’s many activities were seen to be a crime, however as mentioned, due to society changing and becoming more advanced, morals and the law have also changed in light to these evolving changes. The Report of the Committee on Homosexual offences and Prostitution, formally known as the ‘Wolfenden Report’ in 1957, is known to be the starting point for the process of moral reformism. According to Devlin it is ‘recognised to be an excellent study of two very different legal and social problems.’ However Devlin doesn’t actually agree with the report, which is why in many ways, makes an excellent study due to the strong views which were returned by Hart. The report clearly sets out the whole scene of principles in which criminal law should be incorporated into personal lives. It was set up to investigate the issues of public concern relating to sexual scandals referring to prostitution and homosexuality, the report states:

‘In this field, its the function as we see it, 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 pattern of behaviour, further than is necessary to carry out the purpose we have outlined.’

The statement from the report clearly outlines the situation behind prostitution and homosexuality. The report does underpin the fact that the younger generation are more likely to be influenced; therefore protection of certain activities is essential. However the report does clearly admit that it is not the function of the law to intervene in private lives. The protection of the younger society is crucial, and if the law has to intervene in private lives to protect them then they should be supported as it’s these youngsters whom will make the future.

Also in relation to prostitution, the proper role of the law in preventing the public expression of private morality is stressed as the report says; the law should confine itself to:

‘Those activities which offend against public order and decency or expose the ordinary citizen to what is offensive and injurious: and the simple fact is that prostitutes do parade themselves more habitually and openly than their prospective customers, and do by their continual presence affront the sense of decency of the ordinary citizen. In doing so they create a nuisance which, in our view, the law is entitled to recognise and deal with.’

The Committees recommendation that the law against homosexual practises between consenting adults in private should be relaxed was based on the principle stated simply in section 61 of the Report as follows: ‘There must remain a realm of private morality and immorality which is, in brief and crude terms, not he laws business.’ 

The report outlines what the law states today and what many citizens still believe. It is correct to say that prostitutes’ roaming around does illustrate an act of indecency with regards to other citizens and the younger generation. Hence the law intervening does not infringe the right to privacy as in accordance with Article 8(2) of the ECHR 1998. As mentioned previously, Art 8(1) states that:

‘Everybody has the right to private and family life, his home and correspondence.’

 But Art 8(2) states that:

‘There can be no interference by a public body with the right only if such as in accordance with the 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 the protection of the rights and freedoms of others.’

Relating to prostitution Article 8 does limit what people can do in their private lives if it does interfere with the safety of the citizens. Hence the Article is subject to several exceptions, which is shown in the Brown case.

Referring back to the Wolfenden Report, these recommendations were incorporated 10yrs after the report in the Sexual Offences Act 1967, which is noted above. Hence 10yrs passed between the report and the act when any actual change was made.

The recommendations from the report did meet a considerable amount of opposition, and one of the best known arguments presented would have to be by Lord Devlin in 1959 that wrote about the enforcement of morality. Devlin criticised the report considerably and in order to understand his approach one should be able to distinguish between “critical” and “conventional” morality, which is mentioned above. A statement of critical morality is an ‘attempt to state what is morally true,’   hence whilst a statement of conventional morality is an attempt ‘to capture what most people believe is morally true.’ However there can be on occasions a connection between the two. Hart also uses this same distinction, however using alternative terminology such a positive and critical morality. It is essential in defining the two types of morality as it can help identify what people believe in due to religion influences, and what is morally true. Taking the example of homosexuality and abortion as mentioned previously, due to the classification of morality both areas can be seen as conventional morality, as people can be influenced by religion resulting in what they believe to be morally true.

In relation to this distinction, most of Devlin's writings support the notion of conventional morality and how the law should enforce this notion of capturing what people believe to be morally true. The argument Delvin addresses in response to the report is that:

‘Society is held together by its shared morality; actions which undermine the shared morality undermine society; so society is justified in protecting itself through using the law to enforce society’s conventional morality.’

These beliefs about moral matters do change as time passes, for example the Sexual Offences Act 1967 states that homosexual activities should no longer be a criminal offence. Therefore it can be said that as it is the society which shapes the morality, hence when society changes the morality changes with it.

Devlin expresses an anti-liberal view towards the Report as he states:

‘Societies disintegrate from within more frequently than they are broken up by external pressures. There is disintegration when no common morality is observed and history shows that the loosening of moral bonds is often the first stage of disintegration, so society is justified in taking the same steps to preserve its moral code as it does to preserve its government…. The suppression of vice is as much the law’s business as the suppression of subversive activities.’

Devlin does strongly believe that it is the laws business to intervene, and as mentioned above he believed that the law should enforce conventional morality, hence capturing what people believe to be morally true. This resulted in what he believed; that there was public morality, hence it is perfectly correct for the law to prevent degrading activities.

Devlin in the true spirit of democracy supports the view that law should not tolerate that which a ‘reasonable man’ finds disgusting:

‘Society cannot live without morals. Its morals are those standards of conduct which the reasonable man approves.’

It clearly shows that Devlin finds that’s society needs a moral identity, because it is the moral values of society that make it cohere. By using the term ‘reasonable man’ he employs a sense of objectivity. However, I do not completely agree with Devlin as I do feel that people should have a complete right to private life given that they are not harming others around. If the law did intervene in everything that the citizens did, then what kind of society would we be living in? Within this generation there have been many advances in what people believe in, hence if the law was to intervene in everything that people did i.e. sexual life, and then there would be an outrage.

Devlin’s views were in turn responded to by Hart, who relied heavily on the writings of the nineteenth centaury philosopher John Stuart Mill, who in his essay ‘On Liberty’ made his view on such issues perfectly clear:

‘The only purpose for which power can rightfully be exercised over any member of a civilised community, against his will is to prevent harm to others.’

This is widely known as the ‘harm principle.’ The statement speaks for itself, and I do agree with what Mill is saying. At least this way citizens do have respect to privacy and it also plays in part with the ECHR Art 8.

Within Harts writings, he recognises that there does not seem to be any real shared morality, and there can be no freedom if we compelled to accept only those things that others approve of. He took the view of how the law shouldn’t be about discriminating these activities, but how the law should engage and improve society. If the law was to restrict and punish those for carrying out such activities then maybe these people will retaliate more and hence the law would have a much larger battle to fight than from the start.

It is amazing to see the many cases connected with sexual morality which date back at least 100yrs, one of which was the Shaw v DPP case which came on appeal before the House of Lords, before the 1967 Sexual Offences Act was passed. Shaw had published a booklet entitled ‘The Ladies Directory,’ which listed and advertised prostitutes, together with their photographs and descriptions of their particular sexual predilections and practises. Shaw was successfully convicted of the offence of ‘conspiring to corrupt public morals’ (an offence last heard of in the 18th century), and the convictions were upheld in the House of Lords. It was held that he was guilty of conspiring to corrupt public morals and of living on the earnings of prostitution. This type of activity is likely to harm others and it was correct for the law to intervene. What if youngsters had assess to this type of degrading material? Hence I do feel that it is adequate for the law to intervene especially when is concerns the public. Due to the fact that these magazines were for sale, it clearly shows that it wasn’t for private use. If a citizen was to come across this material, who had strong moral views, would be deeply shocked, hence the law would not be playing their role in accordance to ECHR Article 8(2).

In 1967, the Sexual offences Act was passed, which provided that homosexual acts between consenting adult males in private were no longer a criminal offence. In the case of Knuller v DPP in 1973 a similar situation that came about in Shaw came before the House of Lords. The defendants were prosecuted in having published, in their magazine ‘International Times,’ advertisements placed by readers inviting others to contact them for homosexual purposes. The charge was again conspiracy to corrupt public morals. It was seen within this case that the decision made in Shaw’s case should be followed in order to ensure certainty in the law. The accused were unsuccessful in their appeal against the conviction for conspiring to corrupt public morals. Even though the Act relaxed the law of homosexual activities in private, I do feel that this case did harm the public just like the Shaw's case due to the fact that anyone could access their material on such subject.

Another more recent case which raised questions as to whether the law should interfere in private affairs of adult individual who consent to certain sexual practices was considered in the fascinating 1993 case of R v Brown and others. The six appellants were convicted of a number of offences under the Offences Against the Person Act 1861 (OAPA). They had belonged to a group of homosexual men who had willingly participated in the commission of acts of sado-masochistic violence against each other involving the use of, amongst other things, heated wires, map-pins, stinging nettles, nails, sandpaper and safety pins. The evidence showed that the various activities had been video taped by the participants, though not for any profit or gain; that the injuries inflicted were not permanent; though no medical attention had been sought; and that none of the victims had complained to the police. It was clear that this was a group of individuals who had all consented to a series of bizarre sexual practises, carried out in private, over a substantial period of time.

The men were charged with the offences of assault occasioning actual bodily harm contrary to s 47 of the OAPA 1861, and unlawful wounding, contrary to s 20 of the same act. The court discussed several cases where the issue of consent had arisen previously, including R v Donovan in which the court said that:

‘Bodily harm has its ordinary meaning and includes any hurt or injury calculated to interfere with the health or comfort of the prosecutor. Such hurt or injury need not to be permanent, but must, no doubt, be more than merely transient and trifling.’

The Court of Appeal stated in A-G’s Reference (No 6 of 1980) that ‘it is not in the public interest that people should try to cause or should cause each other bodily harm for no good reason.’ This statement I do feel has some significance as the public seem to be more interest if there is a reason and become more aware. Considering that they are not harming anyone then it should be no concern of the public. However Lord Templeman’s view is:

‘The violence of sado-masochistic encounters involves the indulgence of cruelty by sadists and the degradation of victims. Such violence is injurious to the participants and unpredictably dangerous. I am not prepared to invent a defence of consent for sado-masochistic encounters which breed and glorify cruelty…’

Lord Templeman had strong view of such activities and in a sense takes a view similar to that of Devlin. They both believe that society is entitled to protect itself against such harm to the public, hence the law should intervene. Hence the appeal was dismissed.

The Brown case has raised many interesting question. As mentioned none of the injuries sustained by the victims was serious or of a lasting nature, hence why should the law now not declare the ‘sport’ of boxing to be lawful due to that fact that many injuries do occur as well as many deaths. According to Phil: ‘if consent cannot make lawful a fight in the street, why should it make any difference to a fight in the boxing-ring?’

As mentioned previously Article 8(1) of ECHR states that everybody has the right to respect for his family life, and Art 8(2) (outlined above) limits this right. Hence the question is whether or not Brown falls into any of these exceptional cases (Art 8(2))? In early 1995 it was ruled that the applications in the Brown case were in breach of the ECHR Art 8. The law has the right to interfere in people’s private lives in order to protect the morals and the health of the public; hence they were in breach of Art 8 as it did corrupt public morals.

It has been interesting to see how the law and moral ideas have arisen throughout the years dating back many years ago. The view of Devlin was that of complete opposite to Hart. Hence many great philosophers and Judge’s have had in put into the way which society has changed. Regarding all the cases which are presented it is clear that without the law, society would be in trouble as people could go as they like. I do believe that citizens do have a right to privacy, however to an extent that these activities are not harming others and are upholding the law. Therefore in my conclusion I agree with what Hart has believed in how people can go as they like as long as they don’t harm others. I do feel that the law is continuing to uphold the role they play in society, however as society changes their moral attitudes will change, hence it is impossible to say what could happen to these morals which play a large part in the world we live in today.

        

Word Count: 3, 293

Bibliography

• Harris, P     -      An Introduction to Law
• Devlin, P    -      The Enforcement of Morals, Chp 1
• Hart, H L A   -   Law, Liberty and Morality
• Law commission Consultation Papers No 134   -   Consent and offences against

                                                                                        the person

• Barnett, H  -    Constitutional and Administrative Law, Chp 19
• Bix   -   Jurisprudence, Theory and Context, Chp 15 Legal Enforcement of

                  Morality

Table of Cases

• Shaw v DPP [1962] AC 220
• Knuller v DPP [1973] AC 435
• R v Brown and others [1993] 2 All ER 75
• R v Donovan [1934] All ER Rep 207
• A-G’s Reference (No 6 of 1980) [1981] 2 All ER 1057

Table of Statutes

• European Convention of Human Rights (ECHR) 1998
• Sexual Offences Act 1967
• Abortion Act 1967
• Offences Against the Person Act 1961

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