The legal issue to be considered was whether the prosecution had to prove lack of consent before it could establish the group's guilt under ss. 20 and 47 of the 1861 Act. The Law Lords decided that lack of consent must not be proved (three judges voted to dismiss the appeal, two to allow it), as consent was irrelevant. In Lord Templeman's judgment, he stated that consent is only relevant in common assault and "the course of some legal activities" which involve violence that results in actual bodily harm, wounding, or grievous bodily harm (i.e. surgery, ritual circumcision, tattooing, ear-piercing, and violent sports including boxing).
It would appear that Lord Templeman's ratio decidendi (reason for the decision) was that to allow the appeal would be injurious to society, as such activities would be offensive and detrimental to public morality - in essence, he adhered to the welfare principle. Therefore, he decided that sado-masochistic activities should not be afforded the defence of consent.
However, I do not wish to discuss whether this was the right judgement, nor whether it was the right ratio. I merely wish to comment on the motive for using such a ratio. At the end of his judgement, Lord Templeman states:
"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 uncivilised. I would answer the certified question in the negative and dismiss the appeals of the appellants against conviction."This statement - especially the use of the words "cult" and "evil" - brings into question the objectivity of Lord Templeman's judgement. Did he apply the law to the facts of the case and therefore find an answer to the legal issue; or did he apply his own morality to the legal issue, find an answer, and then attempt to use the law to support it? Yes, on hearing a description of some of the activities which the appellants performed, it would be very difficult for an ordinary person not to feel an amount of revulsion. However, judges should leave such feelings at the courtroom door.
Judges should, as I have said, extract the material facts of the case, apply the applicable law to the facts, and use the outcome to find an answer to the legal issue. When judges start to use their own morality to decide cases, they start to usurp the rule of law. Whether the decision or the ratio was correct or not, the motive was entirely wrong. The appellants were effectively charged with offences contrary to Lord Templeman's personal morality, not the law of England and Wales - and that is something which should not be tolerated.