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You are here: BAILII >> Databases >> European Court of Human Rights >> DUDGEON v. THE UNITED KINGDOM - 7525/76 [1981] ECHR 5 (22 October 1981)
URL: http://www.bailii.org/eu/cases/ECHR/1981/5.html
Cite as: 4 EHRR 149, [1981] ECHR 5, (1981) 4 EHRR 149, [1981] 4 EHRR 149

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DUDGEON v. THE UNITED KINGDOM - 7525/76 [1981] ECHR 5 (22 October 1981)

In the Dudgeon case,

The European Court of Human Rights, taking its decision in plenary

session in application of Rule 48 of the Rules of Court and composed of

the following judges:

Mr. R. RYSSDAL, President,

Mr. M. ZEKIA,

Mr. J. CREMONA,

Mr. THÓR VILHJÁLMSSON,

Mr. W. GANSHOF VAN DER MEERSCH,

Mrs. D. BINDSCHEDLER-ROBERT,

Mr. D. EVRIGENIS,

Mr. G. LAGERGREN,

Mr. L. LIESCH,

Mr. F. GÖLCÜKLÜ,

Mr. F. MATSCHER,

Mr. J. PINHEIRO FARINHA,

Mr. E. GARCIA DE ENTERRIA,

Mr. L.-E. PETTITI,

Mr. B. WALSH,

Sir Vincent EVANS,

Mr. R. MACDONALD,

Mr. C. RUSSO,

Mr. R. BERNHARDT,

and also Mr. M.-A. EISSEN, Registrar, and Mr. H. PETZOLD, Deputy

Registrar,

Having deliberated in private on 24 and 25 April and from 21 to

23 September 1981,

Delivers the following judgment, which was adopted on the

last-mentioned date:

PROCEDURE

  1. The Dudgeon case was referred to the Court by the European
  2. Commission of Human Rights ("the Commission"). The case originated in

    an application against the United Kingdom of Great Britain and

    Northern Ireland lodged with the Commission on 22 May 1976 under

    Article 25 (art. 25) of the Convention for the Protection of Human

    Rights and Fundamental Freedoms ("the Convention") by a United Kingdom

    citizen, Mr. Jeffrey Dudgeon.

  3. The Commission's request was lodged with the registry of the Court

  4. on 18 July 1980, within the period of three months laid down by

    Articles 32 par. 1 and 47 (art. 32-1, art. 47). The request referred

    to Articles 44 and 48 (art. 44, art. 48) and to the declaration made

    by the United Kingdom recognising the compulsory jurisdiction of the

    Court (Article 46) (art. 46). The purpose of the Commission's request

    is to obtain a decision from the Court as to whether or not the facts

    of the case disclose a breach by the respondent State of its

    obligations under Article 8 (art. 8) of the Convention, taken alone or

    in conjunction with Article 14 (art. 14+8).

  5. The Chamber of seven judges to be constituted included, as ex
  6. officio members, Sir Vincent Evans, the elected judge of British

    nationality (Article 43 of the Convention) (art. 43), and

    Mr. G. Balladore Pallieri, the President of the Court (Rule 21 par. 3

    (b) of the Rules of Court). On 30 September 1980, the President drew

    by lot, in the presence of the Registrar, the names of the five other

    members of the Chamber, nameley Mr. G. Wiarda, Mr. D. Evrigenis,

    Mr. G. Lagergren, Mr. L. Liesch and Mr. J. Pinheiro Farinha

    (Article 43 in fine of the Convention and Rule 21 par. 4) (art. 43).

  7. Mr. Balladore Pallieri assumed the office of President of the
  8. Chamber (Rule 21 par. 5). He ascertained, through the Registrar, the

    views of the Agent of the Government of the United Kingdom ("the

    Government") and the Delegates of the Commission as regards the

    procedure to be followed. On 24 October 1980, he directed that the

    Agent of the Government should have until 24 December to file a

    memorial and that the Delegates should be entitled to file a

    memorial in reply within two months from the date of the

    transmission to them by the Registrar of the Government's memorial.

    On 20 December, Mr. Wiarda, the Vice-President of the Court, who

    had replaced Mr. Balladore Pallieri as President of the Chamber

    following the latter's death (Rule 21 par. 5), agreed to extend the

    first of these time-limits until 6 February 1981.

  9. On 30 January 1981, the Chamber decided under Rule 48 of the
  10. Rules of Court to relinquish jurisdiction forthwith in favour of the

    plenary Court.

  11. The Government's memorial was received at the registry on
  12. 6 February and that of the Commission on 1 April; appended to the

    Commission's memorial were the applicant's observations on the

    Government's memorial.

  13. After consulting through the Registrar, the Agent of the
  14. Government and the Delegates of the Commission, Mr. Wiarda, who had

    in the meantime been elected President of the Court, directed on

    2 April 1981 that the oral proceedings should open on 23 April 1981.

  15. On 3 April, the applicant invited the Court to hear expert
  16. evidence from Dr. Dannacker, Assistant Professor at the University

    of Frankfurt. In a letter received at the registry on 15 April, the

    Delegates of the Commission stated that they left it to the Court to

    decide whether such evidence was necessary.

  17. A document was filed by the Government on 14 April 1981.
  18. The oral hearings were held in public at the Human Rights
  19. Building, Strasbourg, on 23 April 1981. Immediately before their

    opening, the Court had held a preparatory meeting and decided not to

    hear expert evidence.

    There appeared before the Court:

    - for the Government:

    Mrs. A. GLOVER, Legal Adviser, Foreign and Commonwealth

    Office, Agent,

    Mr. N. BRATZA, Barrister-at-law,

    Mr. B. KERR, Barrister-at-law, Counsel,

    Mr. R. TOMLINSON, Home Office,

    Mr. D. CHESTERTON, Northern Ireland Office,

    Mr. N. BRIDGES, Northern Ireland Office, Advisers;

    - for the Commission:

    Mr. J. FAWCETT,

    Mr. G. TENEKIDES, Delegates,

    Lord GIFFORD, Barrister-at-law,

    Mr. T. MUNYARD, Barrister-at-law,

    Mr. P. CRANE, Solicitor, assisting the Delegates

    under Rule 29 par. 1,

    second sentence, of the Rules of Court.

    The Court heard addresses by the Delegates and Lord Gifford for the

    Commission, and by Mr. Kerr and Mr. Bratza for the Government. Lord

    Gifford submitted various documents through the Delegates of the

    Commission.

  20. On 11 and 12 May, respectively, the Registrar received from the

  21. Agent of the Government and from the Commission's Delegates and

    those assisting them their written replies to certain questions put

    by the Court and/or their written observations on the documents filed

    before and during the hearings.

  22. In September 1981, Mr. Wiarda was prevented from taking part in the

  23. consideration of the case; Mr. Ryssdal, as Vice-President of the

    Court, thereafter presided over the Court.

    AS TO THE FACTS

  24. Mr. Jeffrey Dudgeon, who is 35 years of age, is a shipping clerk

  25. resident in Belfast, Northern Ireland.

    Mr. Dudgeon is a homosexual and his complaints are directed

    primarily against the existence in Northern Ireland of laws which

    have the effect of making certain homosexual acts between consenting

    adult males criminal offences.

    A. The relevant law in Northern Ireland

  26. The relevant provisions currently in force in Northern Ireland are

  27. contained in the Offences against the Person Act 1861 ("the 1861

    Act"), the Criminal Law Amendment Act 1885 ("the 1855 Act") and the

    common law.

    Under sections 61 and 62 of the 1861 Act, committing and attempting to

    commit buggery are made offences punishable with maximum sentences of

    life imprisonment and ten years' imprisonment, respectively. Buggery

    consists of sexual intercourse per anum by a man with a man or a

    woman, or per anum or per vaginam by a man or a woman with an

    animal.

    By section 11 of the 1885 Act, it is an offence, punishable with a

    maximum of two years' imprisonment, for any male person, in public

    or in private, to commit an act of "gross indecency" with another

    male. "Gross indecency" is not statutorily defined but relates to

    any act involving sexual indecency between male persons; according

    to the evidence submitted to the Wolfenden Committee (see

    paragraph 17 below), it usually takes the form of mutual masturbation,

    inter-crural contact or oral-genital contact. At common law, an

    attempt to commit an offence is itself an offence and, accordingly,

    it is an offence to attempt to commit an act proscribed by section 11

    of the 1885 Act. An attempt is in theory punishable in Northern

    Ireland by an unlimited sentence (but as to this, see paragraph 31

    below).

    Consent is no defence to any of these offences and no distinction

    regarding age is made in the text of the Acts.

    An account of how the law is applied in practice is given below at

    paragraphs 29 to 31.

  28. Acts of homosexuality between females are not, and have never

  29. been, criminal offences, although the offence of indecent assault

    may be committed by one woman on another under the age of 17.

    As regards heterosexual relations, it is an offence, subject to

    certain exceptions, for a man to have sexual intercourse with a girl

    under the age of 17. Until 1950 the age of consent of a girl to

    sexual intercourse was 16 in both England and Wales and in Northern

    Ireland, but by legislation introduced in that year the age of

    consent was increased to 17 in Northern Ireland. While in relation

    to the corresponding offence in England and Wales it is a defence

    for a man under the age of 24 to show that he believed with

    reasonable cause the girl to be over 16 years of age, no such

    defence is available under Northern Ireland law.

    B. The law and reform of the law in the rest of the United Kingdom

  30. The 1861 and 1885 Acts were passed by the United Kingdom
  31. Parliament. When enacted, they applied to England and Wales, to all

    Ireland, then unpartitioned and an integral part of the United

    Kingdom, and also, in the case of the 1885 Act, to Scotland.

    1. England and Wales

  32. In England and Wales the current law on male homosexual acts is

  33. contained in the Sexual Offences Act 1956 ("the 1956 Act") as

    amended by the Sexual Offences Act 1967 ("the 1967 Act").

    The 1956 Act, an Act consolidating the existing statute law, made it an

    offence for any person to commit buggery with another person or an

    animal (section 12) and an offence for a man te commit an act of

    "gross indecency" with another man (section 13).

    The 1967 Act, which was introduced into Parliament as a Private

    Member's Bill, was passed to give effect to the recommendations

    concerning homosexuality made in 1957 in the report of the

    Departmental Committee on Homosexual Offences and Prostitution

    established under the chairmanship of Sir John Wolfenden (the

    "Wolfenden Committee" and "Wolfenden report"). The Wolfenden

    Committee regarded the function of the criminal law in this field as

    "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",

    but not

    "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 purposes we have outlined".

    The Wolfenden Committee concluded that homosexual behaviour between

    consenting adults in private was part of the "realm of private

    morality and immorality which is, in brief and crude terms, not the

    law's business" and should no longer be criminal.

    The 1967 Act qualified sections 12 and 13 of the 1956 Act by

    providing that, subject to certain exceptions concerning mental

    patients, members of the armed forces and merchant seamen, buggery

    and acts of gross indecency in private between consenting males aged

    21 years or over should not be criminal offences. It remains a crime

    to commit a homosexual act, of the kind referred to in these

    sections, with a person aged less than 21 in any circumstances.

    The age of majority for certain purposes, including capacity to

    marry without parental consent and to enter into contractual

    relations, was reduced from 21 to 18 by the Family Law Reform Act

    1969. The voting age and the minimum age for jury service were

    likewise reduced to 18 by the Representation of the People Act 1969

    and the Criminal Justice Act 1972, respectively.

    In 1977, the House of Lords rejected a Bill aimed at reducing the

    age of consent for private homosexual act to 18. Subsequently, in a

    report published in April 1981, a committee established by the Home

    Office, namely the Policy Advisory Committee on Sexual Offences,

    recommended that the minimum age for homosexual relations between

    males should be reduced to 18. A minority of five members favoured a

    reduction to 16.

    2. Scotland

  34. When the applicant lodged his complaint in 1976, the relevant law

  35. applicable was substantially similar to that currently in force in

    Northern Ireland. Section 7 of the Sexual Offences (Scotland) Act

    1976, a consolidating provision re-enacting section 11 of the 1885

    Act, provided for the offence of gross indecency; the offence of

    sodomy existed at common law. However, successive Lord Advocates had

    stated in Parliament that their policy was not to prosecute in

    respect of acts which would not have been punishable if the 1967 Act

    had applied in Scotland. The Criminal Justice (Scotland) Act 1980

    ("the 1980 Act") formally brought Scottish law into line with that

    of England and Wales. As in the case of the 1967 Act, the change in

    the law originated in amendments introduced in Parliament by a

    Private Member.

    C. Constitutional position of Northern Ireland

  36. Under an Act of the United Kingdom Parliament, the Government of

  37. Ireland Act 1920, a separate Parliament for Northern Ireland was

    established with power to legislate on all matters devolved by that

    Act, including criminal and social law. An executive known as the

    Government of Northern Ireland was also established with Ministers

    responsible for the different areas of the devolved powers. By

    convention, during the life of the Northern Ireland Parliament

    (1921-9172) the United Kingdom Parliament rarely, if ever,

    legislated for Northern Ireland in respect of the devolved matters

    - in particular social matters - falling within the former

    Parliament's legislative competence.

  38. In March 1972, the Northern Ireland Parliament was prorogued and

  39. Northern Ireland was made subject to "direct rule" from

    Westminster (see the judgment of 18 January 1978 in the case of

    Ireland v. the United Kingdom, Series A no. 25, pp. 10 and 20-21,

    par. 19 and 49). Since that date, except for a period of five months

    in 1974 when certain legislative and executive powers were devolved

    to a Northern Ireland Assembly and Executive, legislation for

    Northern Ireland in all fields has been the responsibility of the

    United Kingdom Parliament. There are 12 members of the United

    Kingdom House of Commons, out of a total of 635, who represent

    constituencies in Northern Ireland.

    Under the provisions currently in force, power is conferred on Her

    Majesty to legislate for Northern Ireland by Order in Council. Save

    where there are reasons of urgency, no recommendation may be made to Her

    Majesty to make an Order in Council under these provisions unless a

    draft of the Order has been approved by each House of Parliament. It

    is the responsibility of the Government to prepare a draft Order and

    to lay it before Parliament for approval. A draft can only be

    approved or rejected in toto by Parliament, but not amended. The

    function of the Queen in Council in making an Order once it has been

    approved by Parliament is purely formal. In practice, much

    legislation for Northern Ireland is effected in this form rather

    than by means of an Act of Parliament.

    D. Proposals for reform in Northern Ireland

  40. No measures comparable to the 1967 Act were ever introduced into the

  41. Northern Ireland Parliament either by the Government of Northern

    Ireland or by any Private Member.

  42. In July 1976, following the failure of the Northern Ireland
  43. Constitutional Convention to work out a satisfactory form of

    devolved government for Northern Ireland, the then Secretary of

    State for Northern Ireland announced in Parliament that the United

    Kingdom Government would thenceforth by looking closely at the need

    for legislation in fields which it had previously been thought

    appropriate to leave to a future devolved government, in particular

    with a view to bringing Northern Ireland law more closely into

    harmony with laws in other parts of the country. He cited

    homosexuality and divorce as possible areas for action. However,

    recognising the difficulties about such subjects in Northern

    Ireland, he indicated that he would welcome the views of the local

    people, including those of the Standing Advisory Commission on Human

    Rights ("the Advisory Commission") and of Members of Parliament

    representing Northern Ireland constituencies.

  44. The Advisory Commission, which is an independent statutory body,

  45. was accordingly invited to consider the matter. As regards

    homosexual offences, the Advisory Commission received evidence from

    a number of persons and organisations, religious and secular. No

    representations were made by the Roman Catholic Church in Northern

    Ireland or by any of the 12 Northern Ireland Members of the United

    Kingdom House of Commons.

    The Advisory Commission published its report in April 1977. The

    Advisory Commission concluded that most people did not regard it as

    satisfactory to retain the existing differences in the law with

    regard to homosexuality and that few only would be strongly opposed

    to changes bringing Northern Ireland law into conformity with that

    in England and Wales. On the other hand, it did not consider that

    there would be support for legislation which went further, in

    particular by lowering the age of consent. Its recommendations were

    that the law of Northern Ireland should be brought into line with

    the 1967 Act, but that future amendments to the 1967 Act should not

    automatically apply to Northern Ireland.

  46. On 27 July 1978, the Government published a proposal for a draft

  47. Homosexual Offences (Northern Ireland) Order 1978, the effect of

    which would have been to bring Northern Ireland law on the matter

    broadly into line with that of England and Wales. In particular,

    homosexual acts in private between two consenting male adults over

    the age of 21 would no longer have been punishable.

    In a foreword to the proposal, the responsible Minister stated that

    "the Government had always recognised that homosexuality is an

    issue about which some people in Northern Ireland hold strong

    conscientious or religious opinions". He summarised the main

    arguments for and against reform as follows:

    "In brief, there are two differing viewpoints. One, based on an

    interpretation of religious principles, holds that homosexual acts

    under any circumstances are immoral and that the criminal law should

    be used, by treating them as crimes, to enforce moral behaviour. The

    other view distinguishes between, on the one hand that area of

    private morality within which a homosexual individual can (as a

    matter of civil liberty) exercise his private right of conscience

    and, on the other hand, the area of public concern where the State

    ought and must use the law for the protection of society and in

    particular for the protection of children, those who are mentally

    retarded and others who are incapable of valid personal consent.

    I have during my discussions with religious and other groups heard

    both these viewpoints expressed with sincerity and I understand the

    convictions that underlie both points of view. There are in addition

    other considerations which must be taken into account. For example

    it has been pointed out that the present law is difficult to

    enforce, that fear of exposure can make a homosexual particularly

    vulnerable to blackmail and that this fear of exposure can cause

    unhappiness not only for the homosexual himself but also for his

    family and friends.

    While recognising these differing viewpoints I believe we should not

    overlook the common ground. Most people will agree that the young

    must be given special protection; and most people will also agree

    that law should be capable of being enforced. Moreover those who are

    against reform have compassion and respect for individual rights

    just as much as those in favour of reform have concern for the

    welfare of society. For the individuals in society, as for

    Government, there is thus a difficult balance of judgment to be

    arrived at."

    Public comment on the proposed amendment to the law was invited.

  48. The numerous comments received by the Government in response to

  49. their invitation, during and after the formal period of

    consultation, revealed a substantial division of opinion. On a

    simple count of heads, there was a large majority of individuals and

    institutions against the proposal for a draft Order.

    Those opposed to reform included a number of senior judges, District

    Councils, Orange Lodges and other organisations, generally of a

    religious character and in some cases engaged in youth activities. A

    petition to "Save Ulster from Sodomy" organised by the Democratic

    Unionist Party led by Mr. Ian Paisley, a Member of the United

    Kingdom House of Commons, collected nearly 70.000 signatures. The

    strongest opposition came from certain religious groups. In

    particular, the Roman Catholic Bishops saw the proposal as an

    invitation to Northern Irish society to change radically its moral

    code in a manner liable to bring about more serious problems than

    anything attributable to the present law. The Roman Catholic Bishops

    argued that such a change in the law would lead to a further decline

    in moral standards and to a climate of moral laxity which would

    endanger and put undesirable pressures on those most vulnerable,

    namely the young. Similarly, the Presbyterian Church in Ireland,

    whilst understanding the arguments for the change, made the point

    that the removal from the purview of the criminal law of private

    homosexual acts between consenting adult males might be taken by the

    public as an implicit licence if not approval for such practices and

    as a change in public policy towards a further relaxation of moral

    standards.

    The strongest support for change came from organisations representing

    homosexuals and social work agencies. They claimed that the existing

    law was unnecessary and that it created hardship and distress for a

    substantial minority of persons affected by it. It was urged that the

    sphere of morality should be kept distinct from that of the criminal

    law and that considerations of the personal freedom of the individual

    should in such matters be paramount. For its part, the Standing

    Committee of the General Synod of the Church of Ireland accepted that

    homosexual acts in private between consenting adults aged 21 and over

    should be removed from the realm of criminal offence, but in

    amplification commented that this did not mean that the Church

    considered homosexuality to be an acceptable norm.

    Press reports indicated that most of the political formations had

    expressed favourable views. However, none of the 12 Northern Ireland

    Members of Parliament publicly supported the proposed reform and

    several of them openly opposed it. An opinion poll conducted in

    Northern Ireland in January 1978 indicated that the people

    interviewed were evenly divided on the global question of the

    desirability of reforming the law on divorce and homosexuality so as

    to bring it into line with that of England and Wales.

  50. On 2 July 1979, the then Secretary of State for Northern
  51. Ireland, in announcing to Parliament that the Government did not

    intend to pursue the proposed reform, stated:

    "Consultation showed that strong views are held in Northern

    Ireland, both for and against in the existing law. Although it is

    not possible to say with certainty what is the feeling of the

    majority of people in the province, it is clear that is substantial

    body of opinion there (embracing a wide range of religious as well

    as political opinion) is opposed to the proposed change ... [T]he

    Government have [also] taken into account ... the fact that

    legislation on an issue such as the one dealt with in the draft

    order has traditionally been a matter for the initiative of a

    Private Member rather than for Government. At present, therefore,

    the Government propose to take no further action ..., but we would

    be prepared to reconsider the matter if there were any developments

    in the future which were relevant."

  52. In its annual report for 1979-1980, the Advisory Commission
  53. reiterated its view that law should be reformed. It believed that

    there was a danger that the volume of opposition might be

    exaggerated.

  54. Since the Northern Ireland Parliament was prorogued in 1972 (see

  55. paragraph 20 above), there has been no initiative of any kind for

    legislation to amend the 1861 and 1885 Acts from any of the

    mainstream political organisations or movements in Northern Ireland.

    E. Enforcement of the law in Northern Ireland

  56. In accordance with the general law, anyone, including a private

  57. person, may bring a prosecution for a homosexual offence, subject to

    the Director of Public Prosecutions' power to assume the conduct of

    the proceedings and, if he thinks fit, discontinue them. The

    evidence as to prosecutions for homosexual offences between 1972 and

    1981 reveals that none has been brought by a private person during

    that time.

  58. During the period from January 1972 to October 1980 there were

  59. 62 prosecutions for homosexual offences in Northern Ireland. The large

    majority of these cases involved minors, that is persons under 18;

    a few involved persons aged 18 to 21 or mental patients or prisoners.

    So far as the Government are aware from investigation of the

    records, no one was prosecuted in Northern Ireland during the period in

    question for an act which would clearly not have been an offence if

    committed in England or Wales. There is, however, no stated policy not

    to prosecute in respect of such acts. As was explained to the Court

    by the Government, instructions operative within the office of the

    Director of Public Prosecutions reserve the decision on whether to

    prosecute in each individual case to the Director personally, in

    consultation with the Attorney General, the sole criterion being

    whether, on all the facts and circumstances of that case, a

    prosecution would be in the public interest.

  60. According to the Government, the maximum sentences prescribed by

  61. the 1861 and 1885 Acts are appropriate only for the most grave

    instances of the relevant offence and in practice no court would

    ever contemplate imposing the maximum sentence for offences

    committed between consenting parties, whether in private or in

    public. Furthermore, although liable to an unlimited sentence, a man

    convicted of an attempt to commit gross indecency would in practice

    never receive a sentence greater than that appropriate if the

    offence had been completed; in general, the sentence would be

    significantly less. In all cases of homosexual offences the actual

    penalty imposed will depend on the particular circumstances.

    F. The personal circumstances of the applicant

  62. The applicant has, on his own evidence, been consciously
  63. homosexual from the age of 14. For some time he and others have been

    conducting a campaign aimed at bringing the law in Northern Ireland

    into line with that in force in England and Wales and, if possible,

    achieving a minimum age of consent lower than 21 years.

  64. On 21 January 1976, the police went to Mr. Dudgeon's address to

  65. execute a warrant under the Misuse of Drugs Act 1971. During the

    search of the house a quantity of cannabis was found which

    subsequently led to another person being charged with drug offences.

    Personal papers, including correspondence and diaries, belonging to

    the applicant in which were described homosexual activities were

    also found and seized. As a result, he was asked to go to a police

    station where for about four and a half hours he was questioned, on

    the basis of these papers, about his sexual life. The police

    investigation file was sent to the Director of Prosecutions. It was

    considered with a view to instituting proceedings for the offence of

    gross indecency between males. The Director, in consultation with

    the Attorney General, decided that it would not be in the public

    interest for proceedings to be brought. Mr. Dudgeon was so informed

    in February 1977 and his papers, with annotations marked over them,

    were returned to him.

    PROCEEDINGS BEFORE THE COMMISSION

  66. In his application, lodged with the Commission on 22 May 1976,

  67. Mr. Dudgeon claimed that:

    - the existence, in the criminal law in force in Northern Ireland,

    of various offences capable of relating to male homosexual conduct

    and the police investigation in January 1976 constituted an

    unjustified interference with his right to respect for his private

    life, in breach of Article 8 (art. 8) of the Convention;

    - he had suffered discrimination, within the meaning of Article 14

    (art. 14) of the Convention, on grounds of sex, sexuality and

    residence.

    The applicant also claimed compensation.

  68. By decision of 3 March 1978, the Commission declared admissible the

  69. applicant's complaints concerning the laws in force in Northern

    Ireland prohibiting homosexual acts between males (or attempts at

    such acts), but inadmissible as being manifestly ill-founded his

    complaints concerning the existence in Northern Ireland of certain

    common law offences.

    In its report adopted on 13 March 1980 (Article 31 of the

    Convention) (art. 31), the Commission expressed the opinion that:

    - the legal prohibition of private consensual homosexual acts

    involving male persons under 21 years of age was not in breach of

    the applicant's rights either under Article 8 (art. 8) (eight votes

    to two) or under Article 14 read in conjunction with

    Article 8 (art. 14+8) (eight votes to one, with one abstention);

    - the legal prohibition of such acts between male persons over

    21 years of age breached the applicant's right to respect for his

    private life under Article 8 (art. 8) (nine votes to one);

    - it was not necessarry to examine the question whether the

    last-mentioned prohibition also violated Article 14 read in

    conjunction with Article 8 (art. 14+8) (nine votes to one).

    The report contains one separate opinion.

    FINAL SUBMISSIONS MADE TO THE COURT

  70. At the hearing on 23 April 1981, the Government maintained the

  71. submissions set out in their memorial, whereby they requested the

    Court:

    "(1) With regard to Article 8 (art. 8)

    To decide and declare that the present laws in Northern Ireland

    relating to homosexual acts do not give rise to a breach of

    Article 8 (art. 8) of the Convention, in that the laws are necessary

    in a democratic society for the protection of morals and for the

    protection of the rights of other for the purposes of paragraph 2 of

    Article 8 (art. 8-2).

    (2) With regard to Article 14, in conjunction with Article 8

    (art. 14+8)

    (i) To decide and declare that the facts disclose no breach of

    Article 14, read in conjunction with Article 8 (art. 14+8)

    of the Convention;

    alternatively, if and in so far as a breach of Article 8 (art. 8)

    of the Convention is found

    (ii) To decide and declare that it is unneccessary to examine the

    question whether the laws in Northern Ireland relating to homosexual

    acts give rise to a separate breach of Article 14, read in

    conjunction with Article 8 (art. 14+8) of the Convention".

    AS TO THE LAW

    I. THE ALLEGED BREACH OF ARTICLE 8 (art. 8)

    A. Introduction

  72. The applicant complained that under the law in force in Northern

  73. Ireland he is liable to criminal prosecution on account of his

    homosexual conduct and that he has experienced fear, suffering and

    psychological distress directly caused by the very existence of the

    laws in question - including fear of harassment and blackmail. He

    further complained that, following the search of his house in

    January 1976, he was questioned by the police about certain

    homosexual activities and that personal papers belonging to him were

    seized during the search and not returned until more than a year

    later.

    He alleged that, in breach of Article 8 (art. 8) of the Convention, he

    has thereby suffered, and continues to suffer, an unjustified

    interference with his right to respect for his private life.

  74. Article 8 (art. 8) provides as follows:
  75. "1. Everyone has the right to respect for his private and family

    life, his home and his correspondence.

    2. There shall be no interference by a public authority with the

    exercise of this right except such as is 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 for the protection of the rights and

    freedoms of others."

  76. Although it is not homosexuality itself which is prohibited but the

  77. particular acts of gross indecency between males and buggery (see

    paragraph 14 above), there can be no doubt but that male homosexual

    practices whose prohibition is the subject of the applicant's

    complaints come within the scope of the offences punishable under

    the impugned legislation; it is on that basis that the case has been

    argued by the Government, the applicant and the Commission.

    Furthermore, the offences are committed whether the act takes place

    in public or in private, whatever the age or relationship of the

    participants involved, and whether or not the participants are

    consenting. It is evident from Mr. Dudgeon's submissions, however,

    that his complaint was in essence directed against the fact that

    homosexual acts which he might commit in private with other males

    capable of valid consent are criminal offences under the law of

    Northern Ireland.

    B. The existence of an interference with an Article 8 (art. 8) right

  78. The Commission saw no reason to doubt the general truth of the

  79. applicant's allegations concerning the fear and distress that he has

    suffered in consequence of the existence of the laws in question. The

    Commission unanimously conluded that "the legislation complained of

    interferes with the applicant's right to respect for his private life

    guaranteed by Article 8 par. 1 (art. 8-1), in so far as it prohibits

    homosexual acts committed in private between consenting males" (see

    paragraphs 94 and 97 of the Commission's report).

    The Government, without conceding the point, did not dispute that

    Mr. Dudgeon is directly affected by the laws and entitled to claim to

    be a "victim" thereof under Article 25 (art. 25) of the Convention.

    Nor did the Government contest the Commission's above-quoted

    conclusion.

  80. The Court sees no reason to differ from the views of the
  81. Commission: the maintenance in force of the impugned legislation

    constitutes a continuing interference with the applicant's right to

    respect for his private life (which includes his sexual life) within

    the meaning of Article 8 par. 1 (art. 8-1). In the personal

    circumstances of the applicant, the very existence of this legislation

    continuously and directly affects his private life (see, mutatis

    mutandis, the Marckx judgment of 13 June 1979, Series A no. 31, p. 13,

    par. 27): either he respects the law and refrains from engaging - even

    in private with consenting male partners - in prohibited sexual acts

    to which he is disposed by reason of his homosexual tendencies, or he

    commits such acts and thereby becomes liable to criminal prosecution.

    It cannot be said that the law in question is a dead letter in this

    sphere. It was, and still is, applied so as to prosecute persons

    with regard to private consensual homosexual acts involving males

    under 21 years of age (see paragraph 30 above). Although no

    proceedings seem to have been brought in recent years with regard to

    such acts involving only males over 21 years of age, apart from

    mental patients, there is no stated policy on the part of the

    authorities not to enforce the law in this respect (ibid).

    Furthermore, apart from prosecution by the Director of Public

    Prosection, there always remains the possibility of a private

    prosecution (see paragraph 29 above).

    Moreover, the police investigation in January 1976 was, in relation

    to the legislation in question, a specific measure of implementation

    - albeit short of actual prosecution - which directly affected the

    applicant in the enjoyment of his right to respect for his private

    life (see paragraph 33 above). As such, it showed that the threat

    hanging over him was real.

    C. The existence of a justification for the interference found by the

    Court

  82. In the Government's submission, the law in Northern Ireland
  83. relating to homosexual acts does not give rise to a breach of

    Article 8 (art. 8), in that it is justified by the terms of

    paragraph 2 of the Article (art. 8-2). This contention was disputed by

    both the applicant and the Commission.

  84. An interference with the exercise of an Article 8 (art. 8)
  85. right will not be compatible with paragraph 2 (art. 8-2) unless it is

    "in accordance with the law", has an aim or aims that is or are

    legitimate under that paragraph and is "necessary in a democratic

    society" for the aforesaid aim or aims (see, mutatis, mutandis, the

    Young, James and Webster judgment of 13 August 1981, Series A no. 44,

    p. 24, par. 59).

  86. It has not been contested that the first of these three
  87. conditions was met. As the Commission pointed out in paragraph 99 of

    its report, the interference is plainly "in accordance with the

    law" since it results from the existence of certain provisions in

    the 1861 and 1885 Acts and the common law (see paragraph 14 above).

  88. It next falls to be determined whether the interference is aimed

  89. at "the protection of morals" or "the protection of the rights

    and freedoms of others", the two purposes relied on by the

    Government.

  90. The 1861 and 1885 Acts were passed in order to enforce the then

  91. prevailing conception of sexual morality. Originally they applied to

    England and Wales, to all Ireland, then unpartitioned, and also, in the

    case of the 1885 Act, to Scotland (see paragraph 16 above). In

    recent years the scope of the legislation has been restricted in

    England and Wales (with the 1967 Act) and subsequently in Scotland

    (with the 1980 Act): with certain exceptions it is no longer a

    criminal offence for two consenting males over 21 years of age to

    commit homosexual acts in private (see paragraphs 17 and 18 above).

    In Northern Ireland, in contrast, the law has remained unchanged.

    The decision announced in July 1979 to take no further action in

    relation to the proposal to amend the existing law was, the Court

    accepts, prompted by what the United Kingdom Government judged to be

    the strength of feeling in Northern Ireland against the proposed

    change, and in particular the strength of the view that it would be

    seriously damaging to the moral fabric of Northern Irish society

    (see paragraphs 25 and 26 above). This being so, the general aim

    pursued by the legislation remains the protection of morals in the

    sense of moral standards obtaining in Northern Ireland.

  92. Both the Commission and the Government took the view that, in so

  93. far as the legislation seeks to safeguard young persons from

    undesirable and harmful pressures and attentions, it is also aimed

    at "the protection of the rights and freedoms of others". The

    Court recognises that one of the purposes of the legislation is to

    afford safeguards for vulnerable members of society, such as the

    young, against the consequences of homosexual practices. However, it

    is somewhat artificial in this context to draw a rigid distinction

    between "protection of the rights and freedoms of others" and

    "protection of morals". The latter may imply safeguarding the

    moral ethos or moral standards of a society as a whole (see

    paragraph 108 of the Commission's report), but may also, as the

    Government pointed out, cover protection of the moral interests and

    welfare of a particular section of society, for example

    schoolchildren (see the Handyside judgment of 7 December 1976,

    Series A no. 24, p. 25, par. 52 in fine - in relation to

    Article 10 par. 2 (art. 10-2) of the Convention). Thus, "protection

    of the rights and freedoms of others", when meaning the safeguarding

    of the moral interests and welfare of certain individuals or classes

    of individuals who are in need of special protection for reasons such

    as lack of maturity, mental disability or state of dependence, amounts

    to one aspect of "protection of morals" (see, mutatis mutandis, the

    Sunday Times judgment of 26 April 1979, Series A no. 30, p. 34,

    par. 56). The Court will therefore take account of the two aims on

    this basis.

  94. As the Commission rightly observed in its report (at
  95. paragraph 101), the cardinal issue arising under Article 8 (art. 8)

    in this case is to what extent, if at all, the maintenance in force of

    the legislation is "necessary in a democratic society" for these aims.

  96. There can be no denial that some degree of regulation of male

  97. homosexual conduct, as indeed of other forms of sexual conduct, by

    means of the criminal law can be justified as "necessary in a

    democratic society". The overall function served by the criminal

    law in this field is, in the words of the Wolfenden report (see

    paragraph 17 above), "to preserve public order and decency [and] to

    protect the citizen from what is offensive or injurious".

    Furthermore, this necessity for some degree of control may even

    extend to consensual acts committed in private, notably where there

    is call - to quote the Wolfenden report once more - "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". In practice there is

    legislation on the matter in all the member States of the Council of

    Europe, but what distinguishes the law in Northern Ireland from that

    existing in the great majority of the member States is that it

    prohibits generally gross indecency between males and buggery

    whatever the circumstances. It being accepted that some form of

    legislation is "necessary" to protect particular sections of

    society as well as the moral ethos of society as a whole, the

    question in the present case is whether the contested provisions of

    the law of Northern Ireland and their enforcement remain within the

    bounds of what, in a democratic society, may be regarded as

    necessary in order to accomplish those aims.

  98. A number of principles relevant to the assessment of the
  99. "necessity", "in a democratic society", of a measure taken in

    furtherance of an aim that is legitimate under the Convention have

    been stated by the Court in previous judgments.

  100. Firstly, "necessary" in this context does not have the
  101. flexibility of such expressions as "useful", "reasonable", or

    "desirable", but implies the existence of a "pressing social

    need" for the interference in question (see the above-mentioned

    Handyside judgment, p. 22, par. 48).

  102. In the second place, it is for the national authorities to make

  103. the initial assessment of the pressing social need in each case;

    accordingly, a margin of appreciation is left to them (ibid).

    However, their decision remains subject to review by the Court

    (ibid., p. 23, par. 49).

    As was illustrated by the Sunday Times judgment, the scope of the

    margin of appreciation is not identical in respect of each of the

    aims justifying restrictions on a right (p. 36, par. 59). The

    Government inferred from the Handyside judgment that the margin of

    appreciation will be more extensive where the protection of morals

    is in issue. It is an indisputable fact, as the Court stated in the

    Handyside judgment, that "the view taken ... of the requirements of

    morals varies from time to time and from place to place, especially

    in our era," and that "by reason of their direct and continuous

    contact with the vital forces of their countries, State authorities

    are in principle in a better position than the international judge

    to give an opinion on the exact content of those requirements"

    (p. 22, par. 48).

    However, not only the nature of the aim of the restriction but also the

    nature of the activities involved will affect the scope of the

    margin of appreciation. The present case concerns a most intimate

    aspect of private life. Accordingly, there must exist particularly

    serious reasons before interferences on the part of the public

    authorities can be legitimate for the purposes of paragraph 2 of

    Article 8 (art. 8-2).

  104. Finally, in Article 8 (art. 8) as in several other Articles of the

  105. Convention, the notion of "necessity" is linked to that of a

    "democratic society". According to the Court's case-law, a restriction

    on a Convention right cannot be regarded as "necessary in a democratic

    society" - two hallmarks of which are tolerance and broadmindedness -

    unless, amongst other things, it is proportionate to the legitimate

    aim pursued (see the above-mentioned Handyside judgment, p. 23,

    par. 49, and the above-mentioned Young, James and Webster judgment,

    p. 25, par. 63).

  106. The Court's task is to determine on the basis of the aforestated

  107. principles whether the reasons purporting to justify the

    "interference" in question are relevant and sufficient under

    Article 8 par. 2 (art. 8-2) (see the above-mentioned Handyside

    judgment, pp. 23-24, par. 50). The Court is not concerned with making

    any value-judgment as to the morality of homosexual relations between

    adult males.

  108. It is convenient to begin by examining the reasons set out by the

  109. Government in their arguments contesting the Commission's conclusion

    that the penal prohibition of private consensual homosexual acts

    involving male persons over 21 years of age is not justified under

    Article 8 par. 2 (art. 8-2) (see paragraph 35 above).

  110. In the first place, the Government drew attention to what they

  111. described as profound differences of attitude and public opinion

    between Northern Ireland and Great Britain in relation to questions

    of morality. Northern Irish society was said to be more conservative

    and to place greater emphasis on religious factors, as was

    illustrated by more restrictive laws even in the field of

    heterosexual conduct (see paragraph 15 above).

    Although the applicant qualified this account of the facts as

    grossly exaggerated, the Court acknowledges that such differences do

    exist to a certain extent and are a relevant factor. As the

    Government and the Commission both emphasised, in assessing the

    requirements of the protection of morals in Northern Ireland, the

    contested measures must be seen in the context of Northern Irish

    society.

    The fact that similar measures are not considered necessary in other

    parts of the United Kingdom or in other member States of the Council of

    Europe does not mean that they cannot be necessary in Northern

    Ireland (see, mutatis mutandis, the above-mentioned Sunday Times

    judgment, pp. 37-38, par. 61; cf. also the above-mentioned Handyside

    judgment, pp. 26-28, par. 54 and 57). Where there are disparate

    cultural communities residing within the same State, it may well be

    that different requirements, both moral and social, will face the

    governing authorities.

  112. As the Government correctly submitted, it follows that the moral

  113. climate in Northern Ireland in sexual matters, in particular as

    evidenced by the opposition to the proposed legislative change, is

    one of the matters which the national authorities may legitimately

    take into account in exercising their discretion. There is, the

    Court accepts, a strong body of opposition stemming from a genuine

    and sincere conviction shared by a large number of responsible

    members of the Northern Irish community that a change in the law

    would be seriously damaging to the moral fabric of society (see

    paragraph 25 above). This opposition reflects - as do in another way

    the recommendations made in 1977 by the Advisory Commission (see

    paragraph 23 above - a view both of the requirements of morals in

    Northern Ireland and of the measures thought within the community to

    be necessary to preserve prevailing moral standards.

    Whether this point of view be right or wrong, and although it may be out

    of line with current attitudes in other communities, its existence

    among an important sector of Northern Irish society is certainly

    relevant for the purposes of Article 8 par. 2 (art. 8-2).

  114. The Government argued that this conclusion is further
  115. strengthened by the special constitutional circumstances of Northern

    Ireland (described above at paragraphs 19 and 20). In the period

    between 1921 (when the Northern Ireland Parliament first met) and

    1972 (when it last sat), legislation in the social field was

    regarded as a devolved matter within the exclusive domain of that

    Parliament. As a result of the introduction of "direct rule" from

    Westminster, the United Kingdom Government, it was said, had a

    special responsibility to take full account of the wishes of the

    people of Northern Ireland before legislating on such matters.

    In the present circumstances of direct rule, the need for caution

    and for sensitivity to public opinion in Northern Ireland is

    evident. However, the Court does not consider it conclusive in

    assessing the "necessity", for the purposes of the Convention, of

    maintaining the impugned legislation that the decision was taken,

    not by the former Northern Ireland Government and Parliament, but by

    the United Kingdom authorities during what they hope to be an

    interim period of direct rule.

  116. Without any doubt, faced with these various considerations, the

  117. United Kingdom Government acted carefully and in good faith; what is

    more, they made every effort to arrive at a balanced judgment

    between the differing viewpoints before reaching the conclusion that

    such a substantial body of opinion in Northern Ireland was opposed

    to a change in the law that no further action should be taken (see,

    for example, paragraphs 24 and 26 above). Nevertheless, this cannot

    of itself be decisive as to the necessity for the interference with

    the applicant's private life resulting from the measures being

    challenged (see the above-mentioned Sunday Times judgment, p. 36,

    par. 59). Notwithstanding the margin of appreciation left to the

    national authorities, it is for the Court to make the final

    evaluation as to whether the reasons it has found to be relevant

    were sufficient in the circumstances, in particular whether the

    interference complained of was proportionate to the social need

    claimed for it (see paragraph 53 above).

  118. The Government right affected by the impugned legislation
  119. protects an essentially private manifestation of the human

    personality (see paragraph 52, third sub-paragraph, above).

    As compared with the era when that legislation was enacted, there is now

    a better understanding, and in consequence an increased tolerance, of

    homosexual behaviour to the extent that in the great majority of the

    member States of the Council of Europe it is no longer considered to be

    necessary or appropriate to treat homosexual practices of the kind

    now in question as in themselves a matter to which the sanctions of

    the criminal law should be applied; the Court cannot overlook the

    marked changes which have occurred in this regard in the domestic

    law of the member States (see, mutatis mutandis, the above-mentioned

    Marckx judgment, p. 19, par. 41, and the Tyrer judgment of

    25 April 1978, Series A no. 26, pp. 15-16, par. 31). In Northern

    Ireland itself, the authorities have refrained in recent years from

    enforcing the law in respect of private homosexual acts between

    consenting males over the age of 21 years capable of valid consent

    (see paragraph 30 above). No evidence has been adduced to show that

    this has been injurious to moral standards in Northern Ireland or that

    there has been any public demand for stricter enforcement of the law.

    It cannot be maintained in these circumstances that there is a

    "pressing social need" to make such acts criminal offences, there

    being no sufficient justification provided by the risk of harm to

    vulnerable sections of society requiring protection or by the

    effects on the public. On the issue of proportionality, the Court

    considers that such justifications as there are for retaining the

    law in force unamended are outweighed by the detrimental effects

    which the very existence of the legislative provisions in question can

    have on the life of a person of homosexual orientation like the

    applicant. Although members of the public who regard homosexuality

    as immoral may be shocked, offended or disturbed by the commission

    by others of private homosexual acts, this cannot on its own warrant

    the application of penal sanctions when it is consenting adults

    alone who are involved.

  120. Accordingly, the reasons given by the Government, although
  121. relevant, are not sufficient to justify the maintenance in force of

    the impugned legislation in so far as it has the general effect of

    criminalising private homosexual relations between adult males

    capable of valid consent. In particular, the moral attitudes towards

    male homosexuality in Northern Ireland and the concern that any

    relaxation in the law would tend to erode existing moral standards

    cannot, without more, warrant interfering with the applicant's

    private life to such an extent. "Decriminalisation" does not imply

    approval, and a fear that some sectors of the population might draw

    misguided conclusions in this respect from reform of the legislation

    does not afford a good ground for maintaining it in force with all its

    unjustifiable features.

    To sum up, the restriction imposed on Mr. Dudgeon under Northern

    Ireland law, by reason of its breadth and absolute character, is,

    quite apart from the severity of the possible penalties provided

    for, disproportionate to the aims sought to be achieved.

  122. In the opinion of the Commission, the interference complained of

  123. by the applicant can, in so far as he is prevented from having sexual

    relations with young males under 21 years of age, be justified as

    necessary for the protection of the rights of others (see especially

    paragraphs 105 and 116 of the report). This conclusion was accepted

    and adopted by the Government, but disputed by the applicant who

    submitted that the age of consent for male homosexual relations should

    be the same as that for heterosexual and female homosexual relations,

    that is, 17 years under current Northern Ireland law (see paragraph 15

    above).

    The Court has already acknowledged the legitimate necessity in a

    democratic society for some degree of control over homosexual

    conduct notably in order to provide safeguards against the

    exploitation and corruption of those who are specially vulnerable by

    reason, for example, of their youth (see paragraph 49 above).

    However, it falls in the first instance to the national authorities

    to decide on the appropriate safeguards of this kind required for

    the defence of morals in their society and, in particular, to fix

    the age under which young people should have the protection of the

    criminal law (see paragraph 52 above).

    D. Conclusion

  124. Mr. Dudgeon has suffered and continues to suffer an unjustified

  125. interference with his right to respect for his private life. There is

    accordingly a breach of Article 8 (art. 8).

    II. THE ALLEGED BREACH OF ARTICLE 14 TAKEN IN CONJUNCTION

    WITH ARTICLE 8 (art. 14+8)

  126. Article 14 (art. 14) reads as follows:
  127. "The enjoyment of the rights and freedoms set forth in this

    Convention shall be secured without discrimination on any ground

    such as sex, race, colour, language, religion, political or other

    opinion, national or social origin, association, with a national

    minority, property, birth or other status."

  128. The applicant claimed to be a victim of discrimination in breach of

  129. Article 14 taken in conjunction with Article 8 (art. 14+8), in

    that he is subject under the criminal law complained of to greater

    interference with his private life than are male homosexuals in other

    parts of the United Kingdom and heterosexuals and female homosexuals

    in Northern Ireland itself. In particular, in his submission

    Article 14 (art. 14) requires that the age of consent should be the

    same for all forms of sexual relations.

  130. When dealing with the issues under Article 14 (art. 14), the
  131. Commission and likewise the Government distinguished between male

    homosexual acts involving those under and those over 21 years of age.

    The Court has already held in relation to Article 8 (art. 8) that it

    falls in the first instance to the national authorities to fix the age

    under which young people should have the protection of the criminal

    law (see paragraph 62 above). The current law in Northern Ireland is

    silent in this respect as regards the male homosexual acts which it

    prohibits. It is only once this age has been fixed that an issue under

    Article 14 (art. 14) might arise; it is not for the Court to

    pronounce upon an issue which does not arise at the present moment.

  132. Where a substantive Article of the Convention has been invoked

  133. both on its own and together with Article 14 (art. 14) and a separate

    breach has been found of the substantive Article, it is not generally

    necessary for the Court also to examine the case under Article 14

    (art. 14), though the position is otherwise if a clear inequality of

    treatment in the enjoyment of the right in question is a fundamental

    aspect of the case (see the Airey judgment of 9 October 1979, Series A

    no. 32 p. 16, par. 30).

  134. This latter condition is not fulfilled as regards the alleged

  135. discrimination resulting from the existence of different laws

    concerning male homosexual acts in various parts of the United

    Kingdom (see paragraphs 14, 17 and 18 above). Moreover, Mr. Dudgeon

    himself conceded that, if the Court were to find a breach of

    Article 8 (art. 8), then this particular question would cease

    to have the same importance.

  136. According to the applicant, the essential aspect of his
  137. complaint under Article 14 (art. 14) is that in Northern Ireland male

    homosexual acts, in contrast to heterosexual and female homosexual

    acts, are the object of criminal sanctions even when committed in

    private between consenting adults.

    The central issue in the present case does indeed reside in the

    existence in Northern Ireland of legislation which makes certain

    homosexual acts punishable under the criminal law in all

    circumstances. Nevertheless, this aspect of the applicant's

    complaint under Article 14 (art. 14) amounts in effect to the

    same complaint, albeit seen from a different angle, that the Court has

    already considered in relation to Article 8 (art. 8); there is no call

    to rule on the merits of a particular issue which is part of and

    absorbed by a wider issue (see, mutatis mutandis, the Deweer judgment

    of 27 February 1980, Series A no. 35, pp. 30-31, par. 56 in fine).

    Once it has been held that the restriction on the applicant's right to

    respect for his private sexual life give rise to a breach of Article 8

    (art. 8) by reason of its breadth and absolute character (see

    paragraph 61 in fine above), there is no useful legal purpose to be

    served in determining whether he has in addition suffered

    discrimination as compared with other persons who are subject to

    lesser limitations on the same right. This being so, it cannot be said

    that a clear inequality of treatment remains a fundamental aspect of

    the case.

  138. The Court accordingly does not deem it necessary to examine the

  139. case under Article 14 (art. 14) as well.

    III. THE APPLICATION OF ARTICLE 50 (art. 50)

  140. Counsel for the applicant stated that, should the Court find the

  141. Convention to have been violated, his client would seek just

    satisfaction under Article 50 (art. 50) in respect of three matters:

    firstly, the distress, suffering and anxiety resulting from the police

    investigation in January 1976; secondly, the general fear and distress

    suffered by Mr. Dudgeon since he was 17 years of age; and finally,

    legal and other expenses. Counsel put forward figures of 5,000 pounds

    under the first head, 10,000 pounds under the second and 5,000 pounds

    under the third.

    The Government, for their part, asked the Court to reserve the

    question.

  142. Consequently, although it was raised under Rule 47 bis of the

  143. Rules of Court, this question is not ready for decision and must be

    reserved; in the circumstances of the case, the Court considers that

    the matter should be referred back to the Chamber in accordance with

    Rule 50 par. 4 of the Rules of Court.

    FOR THE REASONS, THE COURT

  144. Holds by fifteen votes to four that there is a breach of
  145. Article 8 (art. 8) of the Convention;

  146. Holds by fourteen votes to five that it is not necessary also to

  147. examine the case under Article 14 taken in conjunction with Article 8

    (art. 14+8);

  148. Holds unanimously that the question of the application of
  149. Article 50 (art. 50) is not ready for decision;

    (a) accordingly reserves the whole of the said question;

    (b) refers the said question back to the Chamber under Rule 50

    par. 4 of the Rules of Court.

    Done in English and in French, the English text being authentic, at the

    Human Rights Building, Strasbourg, this twenty-second day of

    October, one thousand nine hundred and eighty-one.

    For the President

    Signed: John CREMONA

    Judge

    Signed: Marc-André EISSEN

    Registrar

    The following separate opinions are annexed to the present judgment in

    accordance with Article 51 par. 2 (art. 51-2) of the Convention and

    Rule 50 par. 2 of the Rules of Court :

    - dissenting opinion of Mr. Zekia;

    - dissenting opinion of Mr. Evrigenis and Mr. García de Enterría;

    - dissenting opinion of Mr. Matscher;

    - dissenting opinion of Mr. Pinheiro Farinha;

    - partially dissenting opinion of Mr. Walsh.

    Initialled: J. C.

    Initialled: M.-A.E.

    DISSENTING OPINION OF JUDGE ZEKIA

    I am dealing only with the crucial point which led the Court to find a

    breach of Article 8 § 1 (art. 8-1) of the Convention by the respondent

    Government.

    The Acts of 1861 and 1885 still in force in Northern Ireland prohibit

    gross indecency between males and buggery. These enactments in

    their unamended form are found to interfere with the right to respect

    for the private life of the applicant, admittedly a homosexual.

    The decisive central issue in this case is therefore whether the

    provisions of the aforesaid laws criminalising homosexual relations

    were necessary in a democratic society for the protection of morals

    and for the protection of the rights and freedoms of others, such

    a necessity being a prerequisite for the validity of the enactment

    under Article 8 § 2 (art. 8-2) of the Convention.

    After taking all relevant facts and submissions made in this case

    into consideration, I have arrived at a conclusion opposite to

    the one of the majority. I proceed to give my reasons as briefly

    as possible for finding no violation on the part of the respondent

    Government in this case.

  150. Christian and Moslem religions are all united in the condemnation

  151. of homosexual relations and of sodomy. Moral conceptions to a

    great degree are rooted in religious beliefs.

  152. All civilised countries until recent years penalised sodomy
  153. and buggery and akin unnatural practices.

    In Cyprus criminal provisions similar to those embodied in the

    Acts of 1861 and 1885 in the North of Ireland are in force.

    Section 171 of the Cyprus Criminal Code, Cap. 154, which was enacted

    in 1929, reads:

    "Any person who (a) has carnal knowledge of any person against the

    order of nature, or

    (b) permits a male person to have carnal knowledge

    of him against the order of nature

    is guilty of a felony and is liable to imprisonment for five years."

    Under section 173, anyone who attempts to commit such an offence

    is liable to 3 years' imprisonment.

    While on the one hand I may be thought biased for being a Cypriot

    Judge, on the other hand I may be considered to be in a better

    position in forecasting the public outcry and the turmoil which

    would ensue if such laws are repealed or amended in favour of

    homosexuals either in Cyprus or in Northern Ireland. Both

    countries are religious-minded and adhere to moral standards which

    are centuries' old.

  154. While considering the respect due to the private life of a
  155. homosexual under Article 8 § 1 (art. 8-1), we must not forget and

    must bear in mind that respect is also due to the people holding

    the opposite view, especially in a country populated by a great

    majority of such people who are completely against unnatural immoral

    practices. Surely the majority in a democratic society are also

    entitled under Articles 8, 9 and 10 (art. 8, art. 9, art. 10)

    of the Convention and Article 2 of Protocol No. 1 (P1-2) to respect

    for their religious and moral beliefs and entitled to teach and

    bring up their children consistently with their own religious and

    philosophical convictions.

    A democratic society is governed by the rule of the majority.

    It seems to me somewhat odd and perplexing, in considering the

    necessity of respect for one's private life, to underestimate the

    necessity of keeping a law in force for the protection of morals

    held in high esteem by the majority of people.

    A change of the law so as to legalise homosexual activities in private

    by adults is very likely to cause many disturbances in the country in

    question. The respondent Government were justified in finding it

    necessary to keep the relevant Acts on the statute book for the

    protection of morals as well as for the preservation of public peace.

  156. If a homosexual claims to be a sufferer because of physiological,

  157. psychological or other reasons and the law ignores such circumstances,

    his case might then be one of exculpation or mitigation if his

    tendencies are curable or incurable. Neither of these arguments

    has been put forward or contested. Had the applicant done so, then

    his domestic remedies ought to have been exhausted. In fact he

    has not been prosecuted for any offence.

    From the proceedings in this case it is evident that what the

    applicant is claiming by virtue of Article 8 §§ 1 and 2

    (art. 8-1, art. 8-2) of the European Convention is to be free to

    indulge privately into homosexual relations.

    Much has been said about the scarcity of cases coming to court under

    the prohibitive provisions of the Acts we are discussing. It was

    contended that this fact indicates the indifference of the people

    in Northern Ireland to the non-prosecution of homosexual offences

    committed. The same fact, however, might indicate the rarity of

    homosexual offences having been perpetrated an d also the

    unnecessariness and the inexpediency of changing the law.

  158. In ascertaining the nature and scope of morals and the degree
  159. of the necessity commensurate to the protection of such morals

    in relation to a national law, adverted to in Articles 8, 9 and

    10 (art. 8, art. 9, art. 10) of the European Convention on Human

    Rights, the jurisprudence of this Court has already provided us

    with guidelines:

    "A" The conception of morals changes from time to time and

    from place to place. There is no uniform European conception

    of morals. State authorities of each country are in a

    better position than an international judge to give an

    opinion as to the prevailing standards of morals in their

    country. (Handyside judgment of 7 December 1976, Series A

    no. 24, p. 22, § 48)

    It cannot be disputed that the moral climate obtaining in Northern

    Ireland is against the alteration of the law under consideration,

    the effect of which alteration, if made, would be in some way or

    other to license immorality.

    "B" State authorities likewise are in a better position to assess

    the extent to which the national legislation should necessarily

    go in restricting, for the protection of morals and of the

    rights of others, rights secured under the relevant Articles

    of the Convention.

    The legislative assembly competent to alter the laws under review

    refrained to do so, believing it to be necessary to maintain them

    for the protection of morals prevailing in the region and for keeping

    the peace. The Contracting States are entitled to a margin of

    appreciation, although undoubtedly not an unlimited one.

    Taking account of all relevant facts and points of law and the

    underlying principles for an overall assessment of the situation

    under consideration, I fail to find that the keeping in force in

    Northern Ireland of Acts - which date from the last century -

    prohibiting gross indecency and buggery between male adults

    has become unnecessary for the protection of morals and of the

    rights of others in that country. I have come to the conclusion

    therefore that the respondent Government did not violate the Convention.

    DISSENTING OPINION OF JUDGES EVRIGENIS AND GARCIA DE ENTERRIA

    (Translation)

    Being of the opinion that the case should also have been examined

    under Article 14 read in conjunction with Article 8 (art. 14+8),

    but without prejudging our position on the merits of the matter, we

    have felt compelled to vote against point no. 2 in the operative

    provisions of the judgment for the following reasons:

    At least the difference of treatment in Northern Ireland between

    male homosexuals and female homosexuals and between male homosexuals

    and heterosexuals (see paragraphs 65 and 69 of the judgment)

    - a difference in treatment relied on in argument by the

    applicant - ought to have been examined under Article 14

    read in conjunction with Article 8 (art. 14+8). Even accepting the

    restrictive formula enunciated by the Court in the Airey judgment and

    applied in the judgment in the present case (at paragraph 67: "a clear

    inequality of treatment" being "a fundamental aspect of the case"), it

    would be difficult to assert that these conditions were not plainly

    satisfied in the circumstances. In any event, to interpret Article 14

    (art. 14) in the restrictive manner heralded in the Airey judgment

    deprives this fundamental provision in great part of its substance and

    function in the system of substantive rules established under the

    Convention.

    DISSENTING OPINION OF JUDGE MATSCHER

    (Translation)

    I. As concerns the alleged interference with an Article 8

    (art. 8) right

    Although I agree with the general tenor of the Court's reasoning,

    I take a somewhat different view of the facts of the case. As

    a result, I am unable to concur with the conclusions of the judgment

    on the issue of a violation of Article 8 (art. 8) of the Convention.

    I will therefore endeavour to set out my views below.

    Article 8 (art. 8) does not at all require that the State should

    consider homosexuality - in whatever form it may be manifested -

    as an alternative that is equivalent to heterosexuality and that,

    in consequence, its laws should treat each of them on the same

    footing. Indeed, the judgment quite rightly adverts to this point

    on several occasions.

    On the other hand, it does not follow from the above that the criminal

    prosecution of homosexual acts committed in private between consenting

    adults (leaving aside certain special situations as, for example,

    where there has been abuse of a state of dependence or where the

    acts occur in certain contexts of communal living such as a boarding

    school, barracks, etc.) is "necessary", within the meaning of

    Article 8 § 2 (art. 8-2), for the protection of those values which

    a given society legitimately (likewise for the purposes of the

    Convention) wishes to preserve. I therefore agree with the general

    tenor of the reasoning in the judgment as regards the interpretation

    to be given to Article 8 (art. 8), and in particular to paragraph 2

    of that Article (art. 8-2), in the present case.

    In this connection, however, there are two arguments to which I

    cannot subscribe.

    At paragraph 51, it is said that the adjective "necessary" implies

    the existence of a "pressing social need" for the interference

    in question (reference to the Handyside judgment of 7 December 1976,

    Series A no. 24, § 48). To my mind, however, once it has been granted

    that an aim is legitimate for the purposes of Article 8 § 2

    (art. 8-2), any measure directed towards the accomplishment of that

    aim is necessary if failure to take the measure would create a risk

    that that aim would not be achieved. It is only in this context that

    one can examine the necessity for a certain measure and, adding a

    further factor, the proportionality between the value attaching to the

    aim and the seriousness of the measure (see paragraphs 54 and 60 in

    fine). Since the adjective "necessary" thus refers solely to the

    measures (that is, the means), it does not permit an assessment

    whether the aim itself is legitimate, something that the judgment

    appears to do when it links "necessary" with "pressing social need".

    Furthermore, according to paragraph 60, second sub-paragraph, no

    evidence has been adduced to show that the attitude of tolerance

    adopted in practice by the Northern Ireland authorities has been

    injurious to moral standards in the region. I cannot but regard

    this as a purely speculative argument, devoid of any foundation

    and which thus has no probative value whatsoever.

    My disagreement relates in the first place to the evaluation made

    of the legal provisions and the measures of implementation of which

    the applicant complains to have been a victim in concreto and to

    be still a potential victim by reason of the existence of the impugned

    legislation.

    (a) The Government asserted that for a long time (to be precise,

    between 1972 and 1980) there have been no criminal prosecutions

    in circumstances corresponding to those of the present case. No

    one contradicted this assertion which, moreover, would more than

    appear to be a correct statement of the reality. It is true that

    at common law a prosecution could also be brought by a private

    individual, subject to the Director of Public Prosecutions' power

    to discontinue the proceedings. However, here again there have

    been no examples of prosecutions of this kind during the period

    in question (paragraphs 29-30).

    I conclude from this that in practice there are no prosecutions

    for homosexual acts committed in private between consenting adults.

    The absence of any form of persecution seems to be well established

    by the existence of a number of associations (the Commission lists

    at least five in paragraph 30 of its report) - the applicant being

    the Secretary of one of them - which pursue their activities hardly

    in secret but more or less without any constraint and are, amongst

    other things, engaged in conducting a campaign for the legalisation

    of homosexuality, and some of whose members, if not the majority,

    openly profess - it may be supposed - homosexual tendencies.

    In these circumstances, the existence of "fear, suffering and

    psychological distress" experienced by the applicant as a direct

    result of the laws in force - something which the Commission

    and the Court saw no reason to doubt (paragraphs 40-41) - seems

    to me, on the contrary, to be extremely unlikely.

    To sum up, I believe that it is not the letter of the law that

    has to be taken into account, but the actual situation obtaining

    in Northern Ireland, that is to say, the attitude in fact adopted

    for at least ten years by the competent authorities in respect

    of male homosexuality.

    The situation is therefore fundamentally different from that in

    the Marckx case (paragraph 27 of the judgment of 13 June 1979,

    Series A no. 31) to which the present judgment refers (in

    paragraph 41): in the former case, the provisions of Belgian civil

    law complained of applied directly to the applicant who

    suffered their consequences in her family life; in the instant

    case, the legislation complained of is formally in force but as

    a matter of fact it is not applied as regards those of its aspects

    which are being attacked. This being so, the applicant and those

    like him can organise their private life as they choose without

    any interference on the part of the authorities.

    Of course, the applicant and the orgnisations behing him are seeking

    more: they are seeking the express and formal repeal of the laws

    in force, that is to say a "charter" declaring homosexuality to

    be an alternative equivalent to heterosexuality, with all the

    consequences that that would entail (for example, as regards sex

    education). However, this is in no way required by Article 8

    (art. 8) of the Convention.

    (b) The police action on 21 January 1976 (paragraphs 30-31) against

    the applicant can also be seen in a different light: in the particular

    circumstances, the police were executing a warrant under the Misuse

    of Drugs Act 1971. During the search, the police found papers

    providing evidence of his homosexual tendencies. The reason why

    the police pursued their enquiries was probably also to investigate

    whether the applicant did not have homosexual relations with minors

    as well. Indeed, it is well known that this is a widespread tendency

    in homosexual circles and the fact that the applicant himself

    was engaged in a campaign for the lowering of the legal age of

    consent points in the same direction; furthermore, the enquiries

    in question took place in the context of a more extensive operation

    on the part of the police, the purpose of which was to trace a

    minor who was missing from home and believed to be associating with

    homosexuals (see on this point the reply of the Government to

    question 8, document Cour (81) 32). Furthermore, the file on the

    case was closed by the competent judicial authorities.

    This overall evaluation of the facts leads me to the view that

    the applicant cannot claim to be the victim of an interference

    with his private life. For this reason I conclude that there has

    not been a violation of Article 8 (art. 8) of the Convention in

    the present case.

    II. As concerns the alleged breach of Article 14 read in conjunction

    with Article 8 (art. 14+8)

    The applicant alleged a breach of Article 14 read in

    conjunction with Article 8 (art. 14+8) on three (or even four)

    counts: (a) the existence of different laws in the different parts

    of the United Kingdom; (b) distinctions drawn in respect of the

    age of consent; (c) and (d) differences of treatment under the

    criminal law between male homosexuality and female homosexuality

    and between homosexuality and heterosexuality.

    As far as the age of consent is concerned ((b)), the Court rightly

    notes (at paragraph 66, second sub-paragraph) that this is a matter

    to be fixed in the first instance by the national authorities.

    The reasoning of the majority of the Court runs as follows: male

    homosexuality is made punishable under the criminal law in Northern

    Ireland without any distinction as to the age of the persons involved;

    consequently, it is only once this age has been fixed that an issue

    under Article 14 (art. 14) might arise. This reasoning is coherent

    and there is nothing to add.

    To my mind, the competent authorities do in fact draw a distinction

    according to age and exhibit tolerance only in relation to

    homosexuality between consenting adults. I find that, for reasons

    whose obviousness renders any explanation superfluous, this

    differentiation is perfectly legitimate for the purposes of

    Article 14 (art. 14) and thus gives rise to no discrimination.

    As regards the other complaints ((a), (c) and (d)), the majority

    of the Court state that when a separate breach of a substantive

    Article of the Convention has been found, there is generally no

    need for the Court also to examine the case under Article 14

    (art. 14); the position is otherwise only if a clear inequality

    of treatment in the enjoyment of the right at issue is a fundamental

    aspect of the case (reference to the Airey judgment of

    9 October 1979, Series A no. 32, paragraph 30). This latter condition

    is said not be be fulfilled in the circumstances. Furthermore,

    the judgment continues, there is no call to rule on the merits

    of a particular issue which is part of and absorbed by a wider issue

    (reference to the Deweer judgment of 27 February 1980, Series A

    no. 35, paragraph 56 in fine), this being the position in the present

    case. In these conditions, there appeared to the majority to be

    no useful legal purpose to be served in determining whether the

    applicant has in addition suffered discrimination as compared with

    other persons subject to lesser limitations on the same right.

    I regret that I do not feel able to agree with this line of reasoning.

    In my view, when the Court is called on to rule on a breach of

    the Convention which has been alleged by the applicant and contested

    by the respondent Government, it is the Court's duty, provided

    that the application is admissible, to decide the point by giving

    an answer on the merits of the issue that has been raised. The

    Court cannot escape this responsibility by employing formulas that

    are liable to limit excessively the scope of Article 14 (art. 14)

    to the point of depriving it of all practical value.

    Admittedly, there are extreme situations where an existing difference

    of treatment is so minimal that it entails no real prejudice, physical

    or moral, for the persons concerned. In that event, no discrimination

    within the meaning of Article 14 (art. 14) could be discerned,

    even if on occasions it might be difficult to produce an objective

    and rational explanation for the difference of treatment. It is

    only in such conditions that, in my opinion, the maxim "de minimis

    non curat praetor" would be admissible (see, mutatis mutandis,

    my separate opinion appended to the Marckx judgment, p. 58). I

    do not, however, find these conditions satisfied in the present

    case, with the result that a definite position must be taken regarding

    the alleged violation of Article 14 (art. 14) in relation to the

    complaints made by the applicant.

    (a) The diversity of domestic laws, which is characteristic of

    a federal State, can in itself never constitute a discrimination,

    and there is no necessity to justify diversity of this kind. To

    claim the contrary would be to disregard totally the very essence

    of federalism.

    (c) and (d) The difference of character between homosexual conduct

    and heterosexual conduct seems obvious, and the moral and social

    problems to which they give rise are not at all the same. Similarly,

    there exists a genuine difference, of character as well as of degree,

    between the moral and social problems raised by the two forms of

    homosexuality, male and female. The differing treatment given

    to them under the criminal law is thus founded, to my mind, on

    clearly objective justifications.

    Accordingly, I come to the conclusion that there has been no breach

    of Article 14 read in conjunction with Article 8 (art. 14+8)

    in respect of any of the heads of complaint relied on by the

    applicant.

    DISSENTING OPINION OF JUDGE PINHEIRO FARINHA

    (Translation)

    I am unable to agree with the views and conclusions expressed in

    the present case by my eminent colleagues as regards the breach

    by the United Kingdom of Article 8 (art. 8) of the Convention.

    In my opinion, there was no victim and the Court does not have

    jurisdiction to take cognisance of a breach alleged by someone

    who is not a victim.

    The action by the police was decided on (paragraph 33) in

    implementation of the Misuse of Drugs Act 1971 and not with a view

    to taking action under the criminal law against homosexuality.

    The police investigation "took place in the context of a more

    extensive operation on the part of the police, the object of which

    was to trace a minor who was missing from home and believed to

    be associating with homosexuals" (dissenting opinion of

    Judge Matscher) and it did not lead to any criminal prosecution being

    brought (paragraph 41).

    The file on the case was closed by the prosecuting authorities,

    despite the fact that the applicant was the secretary of an

    organisation campaigning for the legalisation of homosexuality

    and notwithstanding the proof of his homosexual tendencies.

    I come to the conclusion that because the legislation was not

    enforced against him and is applicable not directly but only after

    a concrete decision by the authorities, the applicant was not a

    victim.

    There being no victim, the conclusion must be that there was no

    breach of Article 8 (art. 8) or of Article 14 taken together

    with Article 8 (art. 14+8).

    I would further emphasise that "there can be no denial that some

    degree of regulation of male homosexual conduct, as indeed of other

    forms of sexual conduct, can be justified as 'necessary in a democratic

    society'", and that "this necessity for some degree of control may

    even extend to consensual acts committed in private" (paragraph 49).

    PARTIALLY DISSENTING OPINION OF JUDGE WALSH

    Is the applicant a "victim" within the meaning of Article 25

    (art. 25)?

  160. The law of Nothern Ireland does not make homosexuality a crime

  161. nor does it make all homosexual activities criminal. The

    1885 Act is the only one of the two legislative provisions attacked in

    these present proceedings that can be described as dealing solely with

    homosexual activities. The Act of 1885 makes criminal the commission

    of acts of gross indecency between male persons whether in private or in

    public. The provisions of the Act of 1861 which is also impugned by

    the applicant applies equally to heterosexual activities and

    homosexual activities. The applicant's complaint is directed only

    towards the application of the provision of the 1861 Act to homosexual

    activities of the type mentioned in the section impugned. Of these,

    the Court is in reality concerned with but one, namely sodomy between

    male persons.

  162. The Act of 1885 does not specifically designate any particular

  163. acts of gross indecency but simply prohibits "gross indecency".

    Acts of indecency between male persons are not per se criminal offences

    but only such of them as amount to "gross indecency". What particular

    acts in any given case may be held to amount to gross indecency

    is a matter for the court, which means in effect the jury, to decide

    on the particular facts of each case.

  164. The applicant did not claim that he had at any time indulged
  165. in any of the activities prohibited either by the law of 1861 or

    by the law of 1885, nor has he stated that he desires to indulge

    in them or that he intends to do so. In effect his case is that

    if he should choose to engage in any of the prohibited activities

    the effect of the law, if enforced, would be to violate the protection

    of his private life which is guaranteed by Article 8 (art. 8) of

    the Convention. In fact no action has been taken against him by

    the authorities under either of the legislative provisions referred

    to.

  166. It is true that the police displayed an interest in the question

  167. of whether or not he had indulged in homosexual activities. It

    is not known to the Court whether or not the activities in question

    constituted offences under either of the impugned legislative

    provisions. The documentary material which gave rise to this police

    interest came to light during the execution by the police of a

    search warrant issued pursuant to the laws which prohibit the

    misuse of drugs. The applicant was requested to accompany the

    police to the police station for the purpose, inter alia, of

    continuing inquiries into his suspected homosexual activities.

    The applicant voluntarily agreed to go to the police station.

    If he had been brought there against his will solely for the purpose

    of being interrogated about his alleged homosexual activities,

    he would have been the victim of false imprisonment and under the

    law of Northern Ireland he would have had an action for damages

    in the ordinary civil courts. So far as is disclosed by the evidence

    in the application, no such action has ever been brought or

    contemplated and it has not been suggested that the applicant's

    visit to the police station was other than purely voluntary. It

    is common case that at the police station he was informed by the

    police that he was under no obligation to answer any questions

    or to make any statement. Notwithstanding this, the applicant

    voluntarily made a statement the contents of which have not been

    disclosed to the Court. The Court does not know whether the statement

    was incriminatory or exculpatory. No prosecution was ever instituted

    against the applicant either by the police or by the Director of

    Public Prosecutions in respect of any alleged illegal homosexual

    activities.

    No question of the privacy of the applicant's home being invaded

    arises as the entry to his house was carried out under a valid search

    warrant dealing with the abuse of drugs and no complaint has been

    made about the warrant or the entry. Some personal papers, including

    correspondence and diaries belonging to the applicant in which

    were described homosexual activities, were taken away by the police.

    The Court has not been informed whether the papers were irrelevant

    to the suspected drug offences being investigated and in respect

    of which there has been no complaint.

  168. It is clear that the applicant's case is more in the nature
  169. of a "class action". In so far as he is personally concerned,

    it scarcely amounts to a quia timet action. Having suffered no

    prosecution himself he is in effect asking the Court to strike

    down two legislative provisions of a member State. The Court has

    no jurisdiction of a declaratory character in this area unrelated

    to an injury actually suffered or alleged to have been suffered

    by the applicant. In my view, if the Court were to undertake any

    such competence in cases where the applicant has neither been a

    victim nor is imminently to be a victim, the consequences would

    be far-reaching in every member State.

  170. In my opinion the applicant has not established that he is
  171. a victim within the meaning of Article 25 (art. 25) of the Convention

    and he is therefore not entitled to the ruling he seeks.

    Alleged breach of Article 8 (art. 8)

  172. If the applicant is to be regarded as being a victim within
  173. the meaning of Article 25 (art. 25), then the applicability of

    Article 8 (art. 8) to his case falls to be considered.

    Paragraph 1 of Article 8 (art. 8-1) provides that "everyone has

    the right to respect for his private and family life, his home

    and his correspondence". There is no suggestion that any point

    relating to family life arises in this case. Therefore the complaint

    is in reality one to a claim of right to indulge in any homosexual

    activities in the course of his private life and, presumably, in

    private.

  174. The first matter to consider is the meaning of paragraph 1
  175. of Article 8 (art. 8-1). Perhaps the best and most succinct legal

    definition of privacy is that given by Warren and Brandeis - it

    is "the right to be let alone". The question is whether under

    Article 8 § 1 (art. 8-1), the right to respect for one's private

    life is to be construed as being an absolute right irrespective

    of the nature of the activity which is carried on as part of the

    private life and no interference with this right under any

    circumstances is permitted save within the terms of paragraph 2

    of Article 8 (art. 8-2). This appears to be the interpretation

    put upon it by the Court in its judgment.

    It is not essentially different to describe the "private life"

    protected by Article 8 § 1 (art. 8-1) as being confined to the private

    manifestation of the human personality. In any given case the human

    personality in question may in private life manifest dangerous or evil

    tendencies calculated to produce ill-effects upon himself or upon

    others. The Court does not appear to consider as a material factor

    that the manifestation in question may involve more than one person or

    participation by more than one person provided the manifestation can

    be characterised as an act of private life. If for the purposes of

    this case this assumption is to be accepted, one proceeds to the

    question of whether or not the interference complained of can be

    justified under paragraph 2 (art. 8-2). This in turn begs the

    question that under Article 8 (art. 8) the inseparable social

    dimensions of private life or "private morality" are limited to the

    confines of paragraph 2 of Article 8 (art. 8-2). It is beyond

    question that the interference, if there was such, was in accordance

    with the law. The question posed by paragraph 2 (art. 8-2) is whether

    the interference permitted by the law is necessary in a democratic

    society in the interests of the protection of health or morals or the

    rights and freedoms of others.

  176. This raises the age-old philosophical question of what is
  177. the purpose of law. Is there a realm of morality which is not

    the law's business or is the law properly concerned with

    moral principles? In the context of United Kingdom jurisprudence

    and the true philosophy of law this debate in modern times has

    been between Professor H. L. A. Hart and Lord Devlin. Generally

    speaking the former accepts the philosophy propounded in the last

    century by John Stuart Mill while the latter contends that morality

    is properly the concern of the law. Lord Devlin argues that as

    the law exists for the protection of society it must not only protect

    the individual from injury, corruption and exploitation but it

    "must protect also the institutions and the community of ideas,

    political and moral, without which people cannot live together.

    Society cannot ignore the morality of the individual any more than

    it can his loyalty; it flourishes on both and without either it

    dies".

    He claims that the criminal law of England not only "has from the

    very first concerned itself with moral principles but continues

    to concern itself with moral principles". Among the offences which

    he pointed to as having been brought within the criminal law on

    the basis of moral principle, notwithstanding that it could be

    argued that they do not endanger the public, were euthanasia, the

    killing of another at his own request, suicide pacts, duelling,

    abortion, incest between brother and sister. These are acts which

    he viewed as ones which could be done in private and without offence

    to others and need not involve the corruption or exploitation of

    others. Yet, as he pointed out, no one has gone so far as to suggest

    that they should all be left outside the criminal law as matters

    of private morality.

  178. It would appear that the United Kingdom does claim that in
  179. principle it can legislate against immorality. In modern United

    Kingdom legislation a number of penal statutes appear to be based

    upon moral principles and the function of these penal sanctions

    is to enforce moral principles. Cruelty to animals is illegal

    because of a moral condemnation of enjoyment derived from the

    infliction of pain upon sentient creatures. The laws restricting

    or preventing gambling are concerned with the ethical significance

    of gambling which is confined to the effect that it may have on

    the character of the gambler as a member of society. The legislation

    against racial discrimination has as its object the shaping of

    people's moral thinking by legal sanctions and the changing of

    human behaviour by having the authority to punish.

  180. The opposite view, traceable in English jurisprudence to
  181. John Stuart Mill, is that the law should not intervene in matters

    of private moral conduct more than necessary to preserve public

    order and to protect citizens against what is injurious and offensive

    and that there is a sphere of moral conduct which is best left

    to individual conscience just as if it were equatable to liberty

    of thought or belief. The recommendations of the Wolfenden Committee

    relied partly upon this view to favour the non-intervention of

    the law in case of homosexual activities between consenting adult

    males. On this aspect of the matter the Wolfenden Committee stated:

    "There remains one additional counter-argument which we believe to

    be decisive, namely, the importance which society and the law ought

    to give to individual freeedom of choice in action in matters of

    private morality. Unless a deliberate attempt is to be made by

    society, acting through the agency of the law, to equate the sphere

    of crime with that of sin, there must remain a realm of private

    morality and immorality which is, in brief and crude terms, not

    the law's business. To say this is not to condone or encourage

    private immorality."

    This aspect of the Wofenden Committee's report apparently commends

    itself to the Court (see paragraphs 60 and 61 of the judgment).

  182. The Court also agrees with the conclusion in the Wolfenden
  183. Report to the effect that there is a necessity for some degree

    of control even in respect of consensual acts committed in private

    notably where there is a call "to provide sufficient safeguards

    against exploitation and corruption of others, particularly those

    who are especially vulnerable because they are young, weak in

    body or mind, inexperienced, or in a state of special physical,

    official or economic dependence" (paragraph 49 of the judgment).

    Furthermore, the Court accepts that some form of legislation is

    necessary to protect not only particular sections of society but

    also the moral ethos of society as a whole (ibid.). However,

    experience has shown that exploitation and corruption of others

    is not confined to persons who are young, weak in body or mind

    or inexperienced or in a state of physical, moral or economic

    dependence.

  184. The fact that a person consents to take part in the commission of

  185. homosexual acts is not proof that such person is sexually orientated

    by nature in that direction. A distinction must be drawn between

    homosexuals who are such beacause of some kind of innate instinct

    or pathological constitution judged to be incurable and those whose

    tendency comes from a lack of normal sexual development or from

    habit or from experience or from other similar causes but whose

    tendency is not incurable. So far as the incurable category is

    concerned, the activities must be regarded as abnormalities or

    even as handicaps and treated with the compassion and tolerance

    which is required to prevent those persons from being victimised

    in respect of tendencies over which they have no control and for

    which they are not personally responsible. However, other

    considerations are raised when these tendencies are translated

    into activities. The corruption for which the Court acknowledges

    need for control and the protection of the moral ethos of the

    community referred to by the Court may be closely associated with

    the translation of such tendencies into activities. Even assuming

    one of the two persons involved has the incurable tendency, the

    other may not. It is known that many male persons who are

    heterosexual or pansexual indulge in these activities not because

    of any incurable tendency but for sexual excitement. However,

    it is to be acknowledged that the case for the applicant was argued

    on the basis of the position of a male person who is by nature

    homosexually predisposed or orientated. The Court, in the absence

    of evidence to the contrary, has accepted this as the basis of

    the applicant's case and in its judgment rules only in respect

    of males who are so homosexually orientated (see, for example,

    paragraphs 32, 41 and 60 of the judgment).

  186. If it is accepted that the State has a valid interest in
  187. the prevention of corruption and in the preservation of the moral

    ethos of its society, then the State has a right to enact such

    laws as it may reasonably think necessary to achieve these objects.

    The rule of law itself depends on a moral consensus in the community

    and in a democracy the law cannot afford to ignore the moral consensus

    of the community, whether by being either too far below it or too

    far above it, the law is brought into contempt. Virtue cannot

    be legislated into existence but non-virtue can be if the legislation

    renders excessively difficult the struggle after virtue. Such

    a situation can have an eroding effect on the moral ethos of the

    community in question. The ultimate justification of law is that

    it serves moral ends. It is true that many forms of immorality

    which can have a corrupting effec