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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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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 ofthe 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
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 Kingdomcitizen, Mr. Jeffrey Dudgeon.
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 factsof the case disclose a breach by the respondent State of its
obligations under Article 8 (art. 8) of the Convention, taken alone orin conjunction with Article 14 (art. 14+8).
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 othermembers 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).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 theAgent 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 thefirst of these time-limits until 6 February 1981.
plenary Court.
Commission's memorial were the applicant's observations on the
Government's memorial.
in the meantime been elected President of the Court, directed on
2 April 1981 that the oral proceedings should open on 23 April 1981.decide whether such evidence was necessary.
Building, Strasbourg, on 23 April 1981. Immediately before their
opening, the Court had held a preparatory meeting and decided not tohear 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. LordGifford submitted various documents through the Delegates of the
Commission.
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 filedbefore and during the hearings.
consideration of the case; Mr. Ryssdal, as Vice-President of the
Court, thereafter presided over the Court.
AS TO THE FACTS
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 consentingadult males criminal offences.
A. The relevant law in Northern Ireland
contained in the Offences against the Person Act 1861 ("the 1861
Act"), the Criminal Law Amendment Act 1885 ("the 1855 Act") and thecommon 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. Buggeryconsists 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; accordingto 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 11of the 1885 Act. An attempt is in theory punishable in Northern
Ireland by an unlimited sentence (but as to this, see paragraph 31below).
Consent is no defence to any of these offences and no distinctionregarding age is made in the text of the Acts.
An account of how the law is applied in practice is given below atparagraphs 29 to 31.
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 girlunder 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 NorthernIreland, 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 defencefor 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 KingdomIreland, then unpartitioned and an integral part of the United
Kingdom, and also, in the case of the 1885 Act, to Scotland.
1. England and Walescontained 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 ananimal (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, oreconomic 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 betweenconsenting adults in private was part of the "realm of private
morality and immorality which is, in brief and crude terms, not thelaw'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 crimeto 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 1969and 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 HomeOffice, 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 areduction to 16.
2. ScotlandAct, provided for the offence of gross indecency; the offence of
sodomy existed at common law. However, successive Lord Advocates hadstated 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 inthe law originated in amendments introduced in Parliament by a
Private Member.
C. Constitutional position of Northern Ireland
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 Ministersresponsible 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.
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 devolvedto a Northern Ireland Assembly and Executive, legislation for
Northern Ireland in all fields has been the responsibility of theUnited 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 andto 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 beenapproved 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
Northern Ireland Parliament either by the Government of Northern
Ireland or by any Private Member.
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 needfor legislation in fields which it had previously been thought
appropriate to leave to a future devolved government, in particularwith 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 HumanRights ("the Advisory Commission") and of Members of Parliament
representing Northern Ireland constituencies.
was accordingly invited to consider the matter. As regards
homosexual offences, the Advisory Commission received evidence froma 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 UnitedKingdom House of Commons.
The Advisory Commission published its report in April 1977. The
Advisory Commission concluded that most people did not regard it assatisfactory 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 thatthere 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 notautomatically apply to Northern Ireland.
Homosexual Offences (Northern Ireland) Order 1978, the effect of
which would have been to bring Northern Ireland law on the matterbroadly into line with that of England and Wales. In particular,
homosexual acts in private between two consenting male adults overthe 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. Theother 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 Stateought and must use the law for the protection of society and in
particular for the protection of children, those who are mentallyretarded 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 exampleit has been pointed out that the present law is difficult to
enforce, that fear of exposure can make a homosexual particularlyvulnerable 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 areagainst 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.
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 andinstitutions against the proposal for a draft Order.
Those opposed to reform included a number of senior judges, DistrictCouncils, 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 DemocraticUnionist Party led by Mr. Ian Paisley, a Member of the United
Kingdom House of Commons, collected nearly 70.000 signatures. Thestrongest 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 declinein 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 pointthat 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 moralstandards.
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 individualshould 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 overshould 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 IrelandMembers 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 asto bring it into line with that of England and Wales.
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 isnot 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]heGovernment 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 developmentsin the future which were relevant."
there was a danger that the volume of opposition might be
exaggerated.
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
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 duringthat time.
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 toprosecute 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.
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 practicenever 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 actualpenalty imposed will depend on the particular circumstances.
F. The personal circumstances of the applicant
achieving a minimum age of consent lower than 21 years.
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 tothe 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, onthe 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 withthe 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
Mr. Dudgeon claimed that:
- the existence, in the criminal law in force in Northern Ireland, of various offences capable of relating to male homosexual conductand the police investigation in January 1976 constituted an
unjustified interference with his right to respect for his privatelife, 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.
applicant's complaints concerning the laws in force in Northern
Ireland prohibiting homosexual acts between males (or attempts atsuch acts), but inadmissible as being manifestly ill-founded his
complaints concerning the existence in Northern Ireland of certaincommon 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 votesto 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 hisprivate 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
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 necessaryin a democratic society for the protection of morals and for the
protection of the rights of other for the purposes of paragraph 2 ofArticle 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 homosexualacts 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
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. Hefurther 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 wereseized 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, hehas thereby suffered, and continues to suffer, an unjustified
interference with his right to respect for his private life.
"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 lawand 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 protectionof health or morals, or for the protection of the rights and
freedoms of others."
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 beenargued by the Government, the applicant and the Commission.
Furthermore, the offences are committed whether the act takes placein 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 malescapable of valid consent are criminal offences under the law of
Northern Ireland.
B. The existence of an interference with an Article 8 (art. 8) rightparagraphs 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.
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) withinthe meaning of Article 8 par. 1 (art. 8-1). In the personal
circumstances of the applicant, the very existence of this legislationcontinuously 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 thissphere. It was, and still is, applied so as to prosecute persons
with regard to private consensual homosexual acts involving malesunder 21 years of age (see paragraph 30 above). Although no
proceedings seem to have been brought in recent years with regard tosuch 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 threathanging over him was real.
C. The existence of a justification for the interference found by theCourt
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 byboth the applicant and the Commission.
"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).
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).at "the protection of morals" or "the protection of the rights
and freedoms of others", the two purposes relied on by the
Government.
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 bethe strength of feeling in Northern Ireland against the proposed
change, and in particular the strength of the view that it would beseriously 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 thesense of moral standards obtaining in Northern Ireland.
far as the legislation seeks to safeguard young persons from
undesirable and harmful pressures and attentions, it is also aimedat "the protection of the rights and freedoms of others". The
Court recognises that one of the purposes of the legislation is toafford 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 distinctionbetween "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 andwelfare 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, theSunday Times judgment of 26 April 1979, Series A no. 30, p. 34,
par. 56). The Court will therefore take account of the two aims onthis basis.
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] toprotect 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 thereis 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 specialphysical, 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 thatexisting 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 thebounds of what, in a democratic society, may be regarded as
necessary in order to accomplish those aims.
"necessity", "in a democratic society", of a measure taken in
furtherance of an aim that is legitimate under the Convention havebeen stated by the Court in previous judgments.
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).
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 theaims 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, especiallyin 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 judgeto 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 thenature 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 particularlyserious 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).
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 legitimateaim pursued (see the above-mentioned Handyside judgment, p. 23,
par. 49, and the above-mentioned Young, James and Webster judgment,p. 25, par. 63).
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 betweenadult males.
that the penal prohibition of private consensual homosexual acts
involving male persons over 21 years of age is not justified underArticle 8 par. 2 (art. 8-2) (see paragraph 35 above).
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 conservativeand 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 doexist 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, thecontested 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 ofEurope 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 Handysidejudgment, 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 thegoverning authorities.
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 legitimatelytake into account in exercising their discretion. There is, the
Court accepts, a strong body of opposition stemming from a genuineand 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 waythe 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 tobe 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 existenceamong an important sector of Northern Irish society is certainly
relevant for the purposes of Article 8 par. 2 (art. 8-2).
Ireland (described above at paragraphs 19 and 20). In the period
between 1921 (when the Northern Ireland Parliament first met) and1972 (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" fromWestminster, 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 cautionand 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 bythe United Kingdom authorities during what they hope to be an
interim period of direct rule.
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 withthe 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).
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-mentionedMarckx 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 fromenforcing 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 tovulnerable 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 thelaw in force unamended are outweighed by the detrimental effects
which the very existence of the legislative provisions in question canhave 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 warrantthe application of penal sanctions when it is consenting adults
alone who are involved.
criminalising private homosexual relations between adult males
capable of valid consent. In particular, the moral attitudes towardsmale homosexuality in Northern Ireland and the concern that any
relaxation in the law would tend to erode existing moral standardscannot, 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 itsunjustifiable 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.
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 15above).
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 byreason, 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 thecriminal law (see paragraph 52 above).
D. Conclusion
accordingly a breach of Article 8 (art. 8).
II. THE ALLEGED BREACH OF ARTICLE 14 TAKEN IN CONJUNCTION
WITH ARTICLE 8 (art. 14+8)
"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 otheropinion, national or social origin, association, with a national
minority, property, birth or other status."
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 homosexualsin Northern Ireland itself. In particular, in his submission
Article 14 (art. 14) requires that the age of consent should be thesame for all forms of sexual relations.
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.no. 32 p. 16, par. 30).
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. Dudgeonhimself 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.
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 callto 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 beserved 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 ofthe case.
case under Article 14 (art. 14) as well.
III. THE APPLICATION OF ARTICLE 50 (art. 50)
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 poundsunder the third.
The Government, for their part, asked the Court to reserve the
question.
Rule 50 par. 4 of the Rules of Court.
FOR THE REASONS, THE COURT
Article 8 (art. 8) of the Convention;
(art. 14+8);
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 theHuman 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 andRule 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 respondentGovernment.
The Acts of 1861 and 1885 still in force in Northern Ireland prohibitgross indecency between males and buggery. These enactments in
their unamended form are found to interfere with the right to respectfor 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 enactmentunder Article 8 § 2 (art. 8-2) of the Convention.
After taking all relevant facts and submissions made in this caseinto 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 respondentGovernment in this case.
of homosexual relations and of sodomy. Moral conceptions to a
great degree are rooted in religious beliefs.
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 enactedin 1929, reads:
"Any person who (a) has carnal knowledge of any person against theorder 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 CypriotJudge, 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 whichare centuries' old.
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 immoralpractices. 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 respectfor their religious and moral beliefs and entitled to teach and
bring up their children consistently with their own religious andphilosophical 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 thenecessity 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 inquestion. 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.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, thenhis 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 underthe 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 offencescommitted. 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.
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 assessthe 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 keepingthe 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 examinedunder Article 14 read in conjunction with Article 8 (art. 14+8),
but without prejudging our position on the merits of the matter, wehave 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 homosexualsand 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 theConvention.
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 pointon 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 boardingschool, barracks, etc.) is "necessary", within the meaning of
Article 8 § 2 (art. 8-2), for the protection of those values whicha 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 2of 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" impliesthe 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 grantedthat 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 infine). 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 whichthe applicant complains to have been a victim in concreto and to
be still a potential victim by reason of the existence of the impugnedlegislation.
(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' powerto 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 adoptedfor 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 civillaw 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 aspectswhich 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 seekingmore: 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 Misuseof 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 tendencyin 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 operationon the part of the police, the purpose of which was to trace a
minor who was missing from home and believed to be associating withhomosexuals (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 conjunctionwith 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 partsof 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 matterto 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 coherentand there is nothing to add.
To my mind, the competent authorities do in fact draw a distinctionaccording to age and exhibit tolerance only in relation to
homosexuality between consenting adults. I find that, for reasonswhose 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 fundamentalaspect of the case (reference to the Airey judgment of
9 October 1979, Series A no. 32, paragraph 30). This latter conditionis 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 presentcase. 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 withother 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 contestedby the respondent Government, it is the Court's duty, provided
that the application is admissible, to decide the point by givingan 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 discriminationwithin the meaning of Article 14 (art. 14) could be discerned,
even if on occasions it might be difficult to produce an objectiveand rational explanation for the difference of treatment. It is
only in such conditions that, in my opinion, the maxim "de minimisnon 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 regardingthe 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 essenceof federalism.
(c) and (d) The difference of character between homosexual conductand 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 breachof 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 viewto 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 whichwas 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 beingbrought (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 aftera 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)?
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 bythe 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 betweenmale persons.
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 particularacts 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 decideon the particular facts of each case.
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 protectionof 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 referredto.
of whether or not he had indulged in homosexual activities. It
is not known to the Court whether or not the activities in questionconstituted offences under either of the impugned legislative
provisions. The documentary material which gave rise to this policeinterest 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 purposeof being interrogated about his alleged homosexual activities,
he would have been the victim of false imprisonment and under thelaw of Northern Ireland he would have had an action for damages
in the ordinary civil courts. So far as is disclosed by the evidencein 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 institutedagainst 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, includingcorrespondence 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 irrelevantto the suspected drug offences being investigated and in respect
of which there has been no complaint.
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 unrelatedto 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.
and he is therefore not entitled to the ruling he seeks.
Alleged breach of Article 8 (art. 8)
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 homosexualactivities in the course of his private life and, presumably, in
private.
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 ofthis 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 theconfines 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 therights and freedoms of others.
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 moralityis properly the concern of the law. Lord Devlin argues that as
the law exists for the protection of society it must not only protectthe 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 thanit can his loyalty; it flourishes on both and without either it
dies".
He claims that the criminal law of England not only "has from thevery first concerned itself with moral principles but continues
to concern itself with moral principles". Among the offences whichhe 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, thekilling 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 offenceto others and need not involve the corruption or exploitation of
others. Yet, as he pointed out, no one has gone so far as to suggestthat they should all be left outside the criminal law as matters
of private morality.
principle it can legislate against immorality. In modern United
Kingdom legislation a number of penal statutes appear to be basedupon 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 significanceof gambling which is confined to the effect that it may have on
the character of the gambler as a member of society. The legislationagainst 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.
of private moral conduct more than necessary to preserve public
order and to protect citizens against what is injurious and offensiveand 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 Committeerelied 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 oughtto 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 sphereof 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 commendsitself to the Court (see paragraphs 60 and 61 of the judgment).
Report to the effect that there is a necessity for some degree
of control even in respect of consensual acts committed in privatenotably where there is a call "to provide sufficient safeguards
against exploitation and corruption of others, particularly thosewho 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.
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 whosetendency 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 assumingone 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 becauseof any incurable tendency but for sexual excitement. However,
it is to be acknowledged that the case for the applicant was arguedon the basis of the position of a male person who is by nature
homosexually predisposed or orientated. The Court, in the absenceof 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).
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 toofar above it, the law is brought into contempt. Virtue cannot
be legislated into existence but non-virtue can be if the legislationrenders 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