Relationship Between Morality and Law: Analyzing Landmark Cases in English Legal System

This article discusses the relationship between morality and law by analyzing three landmark cases in the English legal system. It explores the concept of consent in sadomasochistic acts and the role of morality in shaping legal decisions. The article also examines the professional roles and ethical responsibilities of lawyers in the UK legal system.

LAW AND ETHICS
LAW AND ETHICS
Isabel Fontes
Author Note:

Answer 1:
In this answer, the relationship between morality and law has been discussed. The values
underpinning the legal system have been elaborated. The eminent advocate in American
Jurisprudence Mr. Justice Oliver W. Holmes stated that in order to achieve an understanding of
law in terms of scope and content by emphasizing the idea that morality should not be equated
with the contents of law because morality has no objective validity and moral terms, as used in
law, lose their ethical meaning (Lerner 2017). The purpose of this answer is to throw light on the
concept of law and morality by analyzing three landmark cases of English legal system.
The first one, popularly known as ‘Operation Spanner’ is the case of R v Brown (1993)
has to be analyzed. In this case, a group of men were involved in consensual sadomasochistic
sexual acts that resulted into actual grievous bodily harm. None of the men complained against
anyone to the police. However, the prosecution acted upon a video of the encounter. They had
been involved in this for the past 10 years. The main issue involved in this case was whether
actual bodily pain and grievous bodily pain can be consented into sexual acts where both
pleasure and pain are imposed simultaneously. As opposed to the actions being criminal offences
and the consent of the ‘victim’ being irrelevant. The house of the Lords decided in negative
stating that consent could not act as a defence to offences under sections 20 and 47 of the
Offences against the Person Act 1861 (OAPA). The judges held that such acts are unlawful, their
judgment was based on moral opinions and the appellants were convicted. The question of
appeal which the House of Lords was to consider was when one person wounds another causing
actual bodily harm on him in course of a sadomasochistic act, is required by the prosecution to
prove lack of consent of the latter before proving the offence of the former under section 20 or

section 47 of OAPA 1861? The Lords by a majority negated this holding that consent cannot act
as a defence to offences under those sections of the said Act.
In the case of R v Emmett (1999), the appellant while engaged in sexual activity with his
female partner, covered her head with a polythene bag. His partner consented to such act and he
had tied at her neck with a ligature and further tightened it to her level of tolerance. Due to such
tying up, she suffered from subconjunctival hemorrhages in her eyes and some petechial bruising
around her neck (Ando et al. 2017). The appellant was held with assault causing bodily harm.
Her consent did not provide defence to the appellant. He appealed in the Court of Appeal but it
dismissed it. The court here applied the decision of R v Brown and held that the consent of
women to these types of events cannot give defence to her partner. The general principle
followed by court here is violence comprising of deliberate and intentional bodily harm is
unlawful not considering that it is the result of the sexual gratification of one or both partners.
The case of R v Wilson (1996) is another sadomasochism case where the man used a hot
knife to make the initial of his name on his wife’s buttock. The wife has full consent to this act.
He was convicted initially following the case of R v Brown but later he was released on appeal
as the consensual activity between husband and wife in the privacy matrimonial home was not a
matter of criminal investigation or prosecution. In this case Mrs. Wilson not only gave consent to
her husband to brand the initials on her buttocks but she instigated him also. Her husband did not
wish to injure her but assist her to fulfill her wish. Moreover, such branding was similar to
tattooing and cosmetic beautification instead of causing pain for sexual gratification. Hence this
case did not attract provisions of section 47 of the OAPA.

All the above cases are examples of sadomasochism acts. Sadomasochism is the
amalgamation of the words ‘sadism’ and ‘masochism’ (Agargun 2016)). Sadism indicates taking
pleasure and satisfaction by causing pain to another and masochism denotes taking pleasure in
pain caused by the former person (Paulhus 2016). Sado-masochism includes both pain and
pleasure together. It involves sexual activities between two or persons where one or more
persons inflicts pain by various means to another person or persons. It is an outcome of love or
sex, and not of dislike, hatred or force. From the outsider point of view, sadomasochists seem to
be psychopaths but they are also like another category of persons existing in this world. It falls
under the category of BDSM which mainly includes bondage and discipline, domination and
submission, and sadism and masochism (Ryan 2018).
British law did not recognize the act of giving consent to actual bodily pain. They are
considered illegal, even between adults who are consenting. For the smooth running of a society,
some laws and control must be there. Society should always protect itself from violence. Cruelty
can never be encouraged anyway. The decision of R v Brown attracted a lot of criticism. The
case involves homosexual white men and the judgment was given at a time when homosexuality
was not so widely accepted.
The question that is common to all the above mentioned cases is whether consent is a
defence in actual bodily harm or not. However, the court has allowed consent in some cases as a
good defence like in case of ‘horseplay, surgical procedures, body modification by tattooing,
piercing, surgery and others. Actual bodily harm can be consented to only when questions of
public policy involved like injury caused in wrestling or boxing matches. Grievous bodily harm
can never be consented to. Sadomasochistic acts causing actual bodily harm are not covered

under the category permitted by public policy. The first two cases are of extreme sadomasochism
where actual harm to body is caused to achieve extreme type of sexual pleasure.
Presently in UK, the legal outlook of sadomasochism has changed considerably. Here law
does not does strict interpretation instead it combines with morality to analyze any case. Sado-
masochism act in private between consenting adults is lawful unless any harm is caused. Harm is
of two types under law, firstly actual bodily harm and secondly, grievous bodily harm. A person
committing any of these is actually doing crime and law will penalize him for any such act to
protect the citizens of the society. However, there lie some exceptions also. the activities under
such exceptions are boxing and martial arts, religious activities, tattooing, circumcision,
heterosexual sado-masochistic acts within a marriage causing harm of a trivial nature, piercing of
ear, eyelid, lip or genital piercing for beautification and not for sexual pleasure, having haircut,
surgical amputation , mastectomy etc. All these have been discussed in the last preceding
paragraph as valid defences to actual bodily harm where the court will not interfere. In all these
acts, defence of consent acts is applicable. Some other acts are also there where such defence is
available, those are consenting to the risk of contracting sexually transmitted disease during
intercourse, assenting to the risk of injury during contact sports, assenting to the risk of injury in
highly dangerous acts of driving two wheeler through flames or on rope, knife throwing displays,
group acrobatics and others. In this regard, it may be mentioned that human rights must not be
restricted to situations where the act is popular in society or followed by the majority (Donnelly
2017). The right to privacy is no exception to it.
Hence the law is made liberal so as to protect citizens on one hand and also made flexible
to allocate activities that are necessary or required to be done. Such list of exceptions is not a
closed list; judges are at their discretion to include any other act they think necessary depending

on the facts and circumstances of the cases. This can be explained in the light of
consequentialism which is an ethical theory that judges whether something is right or wrong
depending on its consequences. It is based on two principles; whether any act is right or not
depend on the consequences it produces and the better result it produces, such act is more right
then. People must live and behave in such a way so that the result it produces is better. Hence
anything that gives better result are always welcome. In the present days homosexual acts are not
considered to be unlawful and are also included in the list of exceptions.
A close perusal of the above three cases and the provisions of morality and law, it can be
said that law is dynamic and ever changing with time. It cannot be static,what was previously
wrong, may not be so now. For homosexuality which was no previously accepted ,has now been
widely accepted as legal in almost every countries. Moreover, any case has to be always
analyzed from the view of morality, ethics and law. Law is a set of rules, principles and ethics
created and legislated by the state. Morals are a group of beliefs, thoughts, values, principles and
behavior which are created by the society. Law and morals can be separated and differentiated on
the basis of the enforcement (Pound 2017). Law is related to morality by moral obligations, by
the necessity of an act. Law flows from the necessary notion of law as an effective dictate of
practical reasoning. Law is basically related to morality in setting forward those values that are
related to common. Law showcases the mirror of the society whereas some law goes against the
society. Some unlawful acts may be sanctioned by morality but penalized by law.
While deciding any case, the learned judges must go through the facts and circumstances
of the case minutely. Then along with the legal aspect, moral aspect has also been looked upon.
In the first two cases, the defendants were accused and convicted as they are found to be against
public policy and public interest. The third case involves the act husband and wife where both of

them are involved in marital pleasure. Court cannot enter into the privacy of marriage as
consensual activity between husband and wife in the privacy of matrimonial home is not a proper
matter for criminal investigation. However court can look into any other matter which would be
unlawful and illegal to the judges.
As discussed above, law has to modify itself with time. It can not remain stagnant. When
the moral values change in society, law also has to change accordingly. Sadomasochism,
together with homosexuality and transvestism, is no longer labeled as a taboo like it was before.
In 2019, it is not regarded as the satisfaction of the depraved sexual desire as it was in Brown. So
along with time, the approach of the legal system changes with the change in people’s approach.
It can be concluded that morality is interlinked with law in particular areas and can act as a
controlling factor in many case. A complete divorce between the two is not possible.
Answer 2
This answer evaluates the professional roles, ethics of the judiciary and legal professions along
with the ethical responsibilities of lawyers. In following part of the answer, the given case is
understood and the professional and ethical duties of Ariel, Bell and Daisy have been discussed
in the light of the given case. The British legal system is also discussed in the forthcoming part
of the answer.
The legal system of UK is one of the oldest systems in the whole world. It is the common
law system of England and Wales, comprising of mainly criminal and civil law, each of which
has its own courts and set of procedures. The UK legal profession can be sub-divided into two
sections namely barristers and solicitors (Strevens 2016). Barristers are enrolled in the Bar
Council as members and the solicitors are members of the law society. Solicitors generally work

together with others in private practice and their legal advices are directly sought by the clients.
Barristers do not interact with the clients directly; they took instructions from the solicitors and
then represent the client’s case in the court. Hence solicitors act as an intermediate between the
clients and the barristers. A solicitor does all the work behind the court room, which includes
interacting with the client, taking brief, preparing draft, consulting with law books and journals
and doing everything needed to present the case in the court. The solicitor prepares the case and
the barrister presents it before judge. In UK, most of the serious and complicated cases are
conducted by the barristers and not by solicitors, the latter only assist them.
A barrister does not interact with the public directly. Like every other professions, the
legal profession includes certain morals and ethics without which none of the occupations can
work efficiently. The barristers have certain ethics, duties and moral values towards the clients
that were elaborated in the Barrister’s Code of Conduct as contained in the Bar Standards Board
(BSB) handbook for Barristers. The regulatory objectives of BSB derive from the Legal Services
Act 2007. Ethics are nothing but principles and values which along with regulations of conduct
control the legal profession. They function as significant guide to protect rights as well as
behavior in regular application of law. If the barristers do not stick to and encourage justice,
equity and transparency, legal profession will be at stake.
According to the BSB handbook, the barrister has ten core duties to be followed along
with the conduct rules. The barristers must maintain honesty and integrity to his client. He must
be unbiased and true to the client. He must work in the best interest of his client. He should not
accept any work which he is not well versed. He should act diligently and always entertain those
cases in which he is confident and competent. The barrister should maintain a relation of contract
with the client. He has got legal duties to perform for the client. He should behave with his client

fairly. Another duty of the barrister is to maintain confidentiality. The barrister should not
disclose any fact shared to him to any other client. Communications between a barrister and
client is guarded with legal professional privilege. This duty of confidentiality is applicable to
not only to the barrister but also to all his staffs.
In addition to the above, the barrister also has duty not to mislead the court and the client.
He should not manipulate any fact to succeed in the case. He should reveal any information or
facts to the client which the latter must not be aware of. He should disclose any fact that would
be beneficial to his client. He should not mislead the facts of the case neither to the court nor to
the client. He must ensure to represent and handle the client’s case in a timely way. He should
always obey the order given by the court and made his client to obey it too.
In the given question, the professional and ethical responsibilities of Ariel, Bell and
Daisy are to be analyzed. They are barristers by profession. Like every other occupation,
barristers are too guided by certain rules and regulations which are enumerated in the following
part of the paragraph. There are standards that act as guidelines in which barrister should perform
his work. A barrister acts on the instructions given by the professional client. After receiving the
brief from the client, the barrister should decide whether he would accept or decline it. Once he
has accepted it, he cannot deny it later. However, he should not accept any brief when there lies
any chance of his becoming a witness or a party in that case [gC74]. A barrister must always act
to promote and protect his client’s interest fearlessly and by all adequate and relevant lawful
means. He must make himself available to his client for any professional discussion subject to
prior notice. He must works for the benefit of his client; the client’s interest must not be
prejudiced by his act. He must be truthful to his client.

In the given scenario of the case, it is found that Ariel continued the case of
Mickey successfully. However due to personal problem, she was unable to attend the case on
third week. She gave the brief to Bell who is another barrister. In this situation, she could ask
Bell to contact Daisy to carry on with the case together in the court with the help of Andy. She
could also ask Andy to appear before court and ask the judge to fix a fresh date for hearing. The
Rules given under ‘ The Conduct Rules’ of the handbook provides that one must not abuse his
role as an advocate and his duty is to serve for the best interest of his client (rc3).
At the end of the fourth week, Daisy became mentally unstable because death of her pet
and so she could not proceed with the case. In this condition, Ariel could resume her work if her
son became well or she could ask her instructing solicitor along with Bell to proceed with the
case on court. If the case was not that complex, Bell could also proceed with the case alone or
Daisy could request judge to fix a new date.
In the given case, there are two barristers Ariel and Daisy, and one instructing solicitor,
Andy working on the case of Mickie. In usual case, a barrister cannot leave his case suddenly
without any sufficient reason and prior notice. It is his duty to complete his work with which he
was appointed with. However, in exceptional conditions, due to any unavoidable conditions,
solicitors can represent any case on behalf of barrister in the court. In usual course of business,
the solicitors do not have the ‘right of audience’ (Smith 2015). However, in these exceptional
situations, solicitors too can have the ‘right of audience’.
From the professional point of view, Ariel cannot leave his work halfway. He is bound to
perform his duty efficiently [CD7]. However, as human beings when unavoidable situation
arises, he could seek help from other barrister or solicitor. Professional ethics are ways of

ensuring the dignity, transparency and effectiveness of the legal profession (Pattenden 2016). The
barristers must be aware of the ethical and professional obligations and must follow them
religiously so as to safeguard the interest of the clients and perform the duties they are entrusted
with. Ethics are tools to infuse sense of honesty, truthfulness and decency into the barristers to
avoid any miscarriage of justice. Role of barristers is to act as shield to the rules of ethics and
professionalism. Where there are no ethics, there will be no faith in the barristers as well as in the
legal system. Hence, the whole legal system will be at stake as the barristers are the backbones of
the legal system.
Thus from the above discussion, it can be said that like every professional, the legal
professionals also have some code of conducts which they must follow religiously. They are
bound to follow the Code. However, if there is a breach, they could be warned or a fine up to
1000 pound. In serious cases, disciplinary action may be taken against him. However, the rules
and regulations need to be construed strictly, they can be liberally interpreted for the efficient
and smooth running of the system.
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