Evropského soudu pro lidská práva
ze dne 22. října 1981
ve věci stížnosti č. 7525/76 Dudgeon proti Spojenému království Velké Británie a Severního Irska
Související články Úmluvy o ochraně lidských práv a základních svobod:
Airey judgment of 9 October 1979
Deweer judgment of 27 February 1980
Handyside judgment of 7 December 1976
Marckx judgment of 13 June 1979
Sunday Times judgment of 26 April 1979
Tyrer judgment of 25 April 1978
Young, James and Webster judgment of 13 August 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 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 to23 September 1981,
Delivers the following judgment, which was adopted on the last-mentioned date:
1.The Dudgeon case was referred to the Court by the European Commission of Human Rights ("the Commission").The case originated inan application against the United Kingdom of Great Britain andNorthern Ireland lodged with the Commission on 22 May 1976 underArticle 25 (art. 25) of the Convention for the Protection of HumanRights and Fundamental Freedoms ("the Convention") by a United Kingdomcitizen, Mr. Jeffrey Dudgeon.
2.The Commission's request was lodged with the registry of the Court on 18 July 1980, within the period of three months laid down byArticles 32 par. 1 and 47 (art. 32-1, art. 47).The request referredto Articles 44 and 48 (art. 44, art. 48) and to the declaration madeby the United Kingdom recognising the compulsory jurisdiction of theCourt (Article 46) (art. 46).The purpose of the Commission's requestis to obtain a decision from the Court as to whether or not the factsof the case disclose a breach by the respondent State of itsobligations under Article 8 (art. 8) of the Convention, taken alone orin conjunction with Article 14 (art. 14+8).
3.The Chamber of seven judges to be constituted included, as ex officio members, Sir Vincent Evans, the elected judge of Britishnationality (Article 43 of the Convention) (art. 43), andMr. G. Balladore Pallieri, the President of the Court (Rule 21 par. 3(b) of the Rules of Court).On 30 September 1980, the President drewby lot, in the presence of the Registrar, the names of the five othermembers of the Chamber, namely Mr. G. Wiarda, Mr. D. Evrigenis,Mr. G. Lagergren, Mr. L. Liesch and Mr. J. PinheiroFarinha(Article 43 in fine of the Convention and Rule 21 par. 4) (art. 43).
4.Mr. Balladore Pallieri assumed the office of President of the Chamber (Rule 21 par. 5).He ascertained, through the Registrar, theviews of the Agent of the Government of the United Kingdom ("theGovernment") and the Delegates of the Commission as regards theprocedure to be followed.On 24 October 1980, he directed that the Agent of the Government should have until 24 December to file amemorial and that the Delegates should be entitled to file amemorial in reply within two months from the date of thetransmission to them by the Registrar of the Government's memorial.On 20 December, Mr. Wiarda, the Vice-President of the Court, whohad replaced Mr. Balladore Pallieri as President of the Chamberfollowing the latter's death (Rule 21 par. 5), agreed to extend thefirst of these time-limits until 6 February 1981.
5.On 30 January 1981, the Chamber decided under Rule 48 of the Rules of Court to relinquish jurisdiction forthwith in favour of theplenary Court.
6.The Government's memorial was received at the registry on 6 February and that of the Commission on 1 April; appended to theCommission's memorial were the applicant's observations on theGovernment's memorial.
7.After consulting through the Registrar, the Agent of the Government and the Delegates of the Commission, Mr. Wiarda, who hadin the meantime been elected President of the Court, directed on2 April 1981 that the oral proceedings should open on 23 April 1981.
8.On 3 April, the applicant invited the Court to hear expert evidence from Dr. Dannacker, Assistant Professor at the Universityof Frankfurt.In a letter received at the registry on 15 April, theDelegates of the Commission stated that they left it to the Court todecide whether such evidence was necessary.
9.A document was filed by the Government on 14 April 1981.
10.The oral hearings were held in public at the HumanRightsBuilding, Strasbourg, on 23 April 1981.Immediately before theiropening, 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 theCommission.
11.On 11 and 12 May, respectively, the Registrar received from the Agent of the Government and from the Commission's Delegates andthose assisting them their written replies to certain questions putby the Court and/or their written observations on the documents filedbefore and during the hearings.
12.In September 1981, Mr. Wiarda was prevented from taking part in the consideration of the case; Mr. Ryssdal, as Vice-President of theCourt, thereafter presided over the Court.
AS TO THE FACTS
13.Mr. Jeffrey Dudgeon, who is 35 years of age, is a shipping clerk resident in Belfast, Northern Ireland.
Mr. Dudgeon is a homosexual and his complaints are directed primarily against the existence in Northern Ireland of laws whichhave the effect of making certain homosexual acts between consentingadult males criminal offences.
A. The relevant law in Northern Ireland
14.The relevant provisions currently in force in Northern Ireland are contained in the Offences against the Person Act 1861 ("the 1861Act"), 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 oflife imprisonment and ten years' imprisonment, respectively.Buggeryconsists of sexual intercourse per anum by a man with a man or awoman, or per anum or per vaginam by a man or a woman with ananimal.
By section 11 of the 1885 Act, it is an offence, punishable with a maximum of two years' imprisonment, for any male person, in publicor in private, to commit an act of "gross indecency" with anothermale. "Gross indecency" is not statutorily defined but relates toany act involving sexual indecency between male persons; accordingto the evidence submitted to the Wolfenden Committee (seeparagraph 17 below), it usually takes the form of mutual masturbation,inter-crural contact or oral-genital contact.At common law, anattempt 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 NorthernIreland by an unlimited sentence (but as to this, see paragraph 31below).
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.
15.Acts of homosexuality between females are not, and have never been, criminal offences, although the offence of indecent assaultmay 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 tosexual intercourse was 16 in both England and Wales and in Northern Ireland, but by legislation introduced in that year the age ofconsent was increased to 17 in Northern Ireland.While in relationto the corresponding offence in England and Wales it is a defencefor a man under the age of 24 to show that he believed withreasonable cause the girl to be over 16 years of age, no suchdefence is available under Northern Ireland law.
B. The law and reform of the law in the rest of the United Kingdom
16.The 1861 and 1885 Acts were passed by the United KingdomParliament.When enacted, they applied to England and Wales, to allIreland, then unpartitioned and an integral part of the UnitedKingdom, and also, in the case of the 1885 Act, to Scotland.
1.England and Wales
17.In England and Wales the current law on male homosexual acts is contained in the Sexual Offences Act 1956 ("the 1956 Act") asamended 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 to 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 recommendationsconcerning homosexuality made in 1957 in the report of theDepartmental Committee on Homosexual Offences and Prostitutionestablished under the chairmanship of Sir John Wolfenden (the "Wolfenden Committee" and "Wolfenden report").The WolfendenCommittee 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 safeguardsagainst exploitation and corruption of others, particularly thosewho are specially vulnerable because they are young, weak in body ormind, inexperienced, or in a state of special physical, official, oreconomic dependence",
"to intervene in the private lives of citizens, or to seek to enforce any particular pattern of behaviour, further than isnecessary 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 privatemorality 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 mentalpatients, members of the armed forces and merchant seamen, buggeryand acts of gross indecency in private between consenting males aged21 years or over should not be criminal offences.It remains a crimeto commit a homosexual act, of the kind referred to in thesesections, 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 contractualrelations, was reduced from 21 to 18 by the Family Law Reform Act1969.The voting age and the minimum age for jury service werelikewise 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 areport 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.
18.When the applicant lodged his complaint in 1976, the relevant law applicable was substantially similar to that currently in force inNorthern Ireland.Section 7 of the Sexual Offences (Scotland) Act1976, a consolidating provision re-enacting section 11 of the 1885Act, provided for the offence of gross indecency; the offence ofsodomy existed at common law.However, successive Lord Advocates hadstated in Parliament that their policy was not to prosecute inrespect of acts which would not have been punishable if the 1967 Acthad applied in Scotland.The Criminal Justice (Scotland) Act 1980("the 1980 Act") formally brought Scottish law into line with thatof England and Wales.As in the case of the 1967 Act, the change inthe law originated in amendments introduced in Parliament by aPrivate Member.
C. Constitutional position of Northern Ireland
19.Under an Act of the United Kingdom Parliament, the Government of Ireland Act 1920, a separate Parliament for Northern Ireland wasestablished with power to legislate on all matters devolved by thatAct, including criminal and social law.An executive known as theGovernment of Northern Ireland was also established with Ministersresponsible for the different areas of the devolved powers.Byconvention, 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 formerParliament's legislative competence.
20.In March 1972, the Northern Ireland Parliament was prorogued and Northern Ireland was made subject to "direct rule" fromWestminster (see the judgment of 18 January 1978 in the case ofIreland 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 monthsin 1974 when certain legislative and executive powers were devolvedto a Northern Ireland Assembly and Executive, legislation forNorthern Ireland in all fields has been the responsibility of theUnited Kingdom Parliament.There are 12 members of the UnitedKingdom House of Commons, out of a total of 635, who representconstituencies in Northern Ireland.
Under the provisions currently in force, power is conferred on Her Majesty to legislate for Northern Ireland by Order in Council.Savewhere there are reasons of urgency, no recommendation may be made to HerMajesty to make an Order in Council under these provisions unless adraft of the Order has been approved by each House of Parliament.Itis the responsibility of the Government to prepare a draft Order andto lay it before Parliament for approval.A draft can only beapproved or rejected in toto by Parliament, but not amended.Thefunction of the Queen in Council in making an Order once it has beenapproved by Parliament is purely formal.In practice, muchlegislation for Northern Ireland is effected in this form ratherthan by means of an Act of Parliament.
D. Proposals for reform in Northern Ireland
21.No measures comparable to the 1967 Act were ever introduced into the Northern Ireland Parliament either by the Government of NorthernIreland or by any Private Member.
22.In July 1976, following the failure of the Northern IrelandConstitutional Convention to work out a satisfactory form ofdevolved government for Northern Ireland, the then Secretary ofState for Northern Ireland announced in Parliament that the UnitedKingdom Government would thenceforth by looking closely at the needfor legislation in fields which it had previously been thoughtappropriate to leave to a future devolved government, in particularwith a view to bringing Northern Ireland law more closely intoharmony with laws in other parts of the country.He citedhomosexuality 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 localpeople, including those of the Standing Advisory Commission on HumanRights ("the Advisory Commission") and of Members of Parliamentrepresenting Northern Ireland constituencies.
23.The Advisory Commission, which is an independent statutory body, was accordingly invited to consider the matter.As regardshomosexual offences, the Advisory Commission received evidence froma number of persons and organisations, religious and secular.Norepresentations were made by the Roman Catholic Church in NorthernIreland 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 withregard to homosexuality and that few only would be strongly opposedto changes bringing Northern Ireland law into conformity with thatin England and Wales.On the other hand, it did not consider thatthere would be support for legislation which went further, inparticular by lowering the age of consent.Its recommendations werethat the law of Northern Ireland should be brought into line withthe 1967 Act, but that future amendments to the 1967 Act should notautomatically apply to Northern Ireland.
24.On 27 July 1978, the Government published a proposal for a draftHomosexual Offences (Northern Ireland) Order 1978, the effect ofwhich 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 anissue about which some people in Northern Ireland hold strongconscientious or religious opinions".He summarised the mainarguments for and against reform as follows:
"In brief, there are two differing viewpoints.One, based on an interpretation of religious principles, holds that homosexual actsunder any circumstances are immoral and that the criminal law shouldbe used, by treating them as crimes, to enforce moral behaviour.Theother view distinguishes between, on the one hand that area ofprivate morality within which a homosexual individual can (as amatter of civil liberty) exercise his private right of conscienceand, on the other hand, the area of public concern where the Stateought and must use the law for the protection of society and inparticular 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 theconvictions that underlie both points of view.There are in additionother considerations which must be taken into account.For exampleit has been pointed out that the present law is difficult toenforce, that fear of exposure can make a homosexual particularlyvulnerable to blackmail and that this fear of exposure can causeunhappiness not only for the homosexual himself but also for hisfamily and friends.
While recognising these differing viewpoints I believe we should not overlook the common ground.Most people will agree that the youngmust 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 rightsjust as much as those in favour of reform have concern for thewelfare of society.For the individuals in society, as forGovernment, there is thus a difficult balance of judgment to bearrived at."
Public comment on the proposed amendment to the law was invited.
25.The numerous comments received by the Government in response to their invitation, during and after the formal period ofconsultation, revealed a substantial division of opinion.On asimple 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, District Councils, Orange Lodges and other organisations, generally of areligious character and in some cases engaged in youth activities.Apetition to "Save Ulster from Sodomy" organised by the DemocraticUnionist Party led by Mr. Ian Paisley, a Member of the UnitedKingdom House of Commons, collected nearly 70.000 signatures.Thestrongest opposition came from certain religious groups.Inparticular, the Roman Catholic Bishops saw the proposal as an invitation to Northern Irish society to change radically its moralcode in a manner liable to bring about more serious problems thananything attributable to the present law.The Roman Catholic Bishopsargued that such a change in the law would lead to a further declinein moral standards and to a climate of moral laxity which wouldendanger 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 privatehomosexual acts between consenting adult males might be taken by thepublic as an implicit licence if not approval for such practices andas 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 existinglaw was unnecessary and that it created hardship and distress for asubstantial minority of persons affected by it.It was urged that thesphere of morality should be kept distinct from that of the criminallaw and that considerations of the personal freedom of the individualshould in such matters be paramount.For its part, the StandingCommittee of the General Synod of the Church of Ireland accepted thathomosexual acts in private between consenting adults aged 21 and overshould be removed from the realm of criminal offence, but inamplification commented that this did not mean that the Churchconsidered 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 andseveral of them openly opposed it.An opinion poll conducted inNorthern Ireland in January 1978 indicated that the peopleinterviewed were evenly divided on the global question of thedesirability of reforming the law on divorce and homosexuality so asto bring it into line with that of England and Wales.
26.On 2 July 1979, the then Secretary of State for Northern Ireland, in announcing to Parliament that the Government did notintend 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 themajority of people in the province, it is clear that is substantialbody of opinion there (embracing a wide range of religious as wellas political opinion) is opposed to the proposed change ... TheGovernment have also taken into account ... the fact thatlegislation on an issue such as the one dealt with in the draft order has traditionally been a matter for the initiative of aPrivate Member rather than for Government.At present, therefore,the Government propose to take no further action ..., but we wouldbe prepared to reconsider the matter if there were any developmentsin the future which were relevant."
27.In its annual report for 1979-1980, the Advisory Commission reiterated its view that law should be reformed.It believed thatthere was a danger that the volume of opposition might beexaggerated.
28.Since the Northern Ireland Parliament was prorogued in 1972 (see paragraph 20 above), there has been no initiative of any kind forlegislation to amend the 1861 and 1885 Acts from any of themainstream political organisations or movements in Northern Ireland.
E. Enforcement of the law in Northern Ireland
29.In accordance with the general law, anyone, including a private person, may bring a prosecution for a homosexual offence, subject tothe Director of Public Prosecutions' power to assume the conduct ofthe proceedings and, if he thinks fit, discontinue them.Theevidence as to prosecutions for homosexual offences between 1972 and1981 reveals that none has been brought by a private person duringthat time.
30.During the period from January 1972 to October 1980 there were 62 prosecutions for homosexual offences in Northern Ireland.The largemajority 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 therecords, no one was prosecuted in Northern Ireland during the period inquestion for an act which would clearly not have been an offence ifcommitted in England or Wales.There is, however, no stated policy notto prosecute in respect of such acts.As was explained to the Courtby the Government, instructions operative within the office of theDirector of Public Prosecutions reserve the decision on whether toprosecute in each individual case to the Director personally, inconsultation with the Attorney General, the sole criterion beingwhether, on all the facts and circumstances of that case, aprosecution would be in the public interest.
31.According to the Government, the maximum sentences prescribed by the 1861 and 1885 Acts are appropriate only for the most graveinstances of the relevant offence and in practice no court wouldever contemplate imposing the maximum sentence for offencescommitted between consenting parties, whether in private or inpublic.Furthermore, although liable to an unlimited sentence, a manconvicted of an attempt to commit gross indecency would in practicenever receive a sentence greater than that appropriate if theoffence had been completed; in general, the sentence would besignificantly less.In all cases of homosexual offences the actualpenalty imposed will depend on the particular circumstances.
F. The personal circumstances of the applicant
32.The applicant has, on his own evidence, been consciously homosexual from the age of 14.For some time he and others have beenconducting a campaign aimed at bringing the law in Northern Irelandinto line with that in force in England and Wales and, if possible,achieving a minimum age of consent lower than 21 years.
33.On 21 January 1976, the police went to Mr. Dudgeon's address to execute a warrant under the Misuse of Drugs Act 1971.During thesearch of the house a quantity of cannabis was found whichsubsequently led to another person being charged with drug offences.Personal papers, including correspondence and diaries, belonging tothe applicant in which were described homosexual activities werealso found and seized.As a result, he was asked to go to a policestation where for about four and a half hours he was questioned, onthe basis of these papers, about his sexual life.The policeinvestigation file was sent to the Director of Prosecutions.It wasconsidered with a view to instituting proceedings for the offence ofgross indecency between males.The Director, in consultation withthe Attorney General, decided that it would not be in the publicinterest for proceedings to be brought.Mr. Dudgeon was so informedin February 1977 and his papers, with annotations marked over them,were returned to him.
PROCEEDINGS BEFORE THE COMMISSION
34.In his application, lodged with the Commission on 22 May 1976, 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 anunjustified 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 andresidence.
The applicant also claimed compensation.
35.By decision of 3 March 1978, the Commission declared admissible the applicant's complaints concerning the laws in force in NorthernIreland prohibiting homosexual acts between males (or attempts atsuch acts), but inadmissible as being manifestly ill-founded hiscomplaints 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 ofthe applicant's rights either under Article 8 (art. 8) (eight votesto two) or under Article 14 read in conjunction withArticle 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 necessary to examine the question whether the last-mentioned prohibition also violated Article 14 read inconjunction with Article 8 (art. 14+8) (nine votes to one).
The report contains one separate opinion.
FINAL SUBMISSIONS MADE TO THE COURT
36.At the hearing on 23 April 1981, the Government maintained the submissions set out in their memorial, whereby they requested theCourt:
"(1) With regard to Article 8 (art. 8)
To decide and declare that the present laws in Northern Irelandrelating to homosexual acts do not give rise to a breach ofArticle 8 (art. 8) of the Convention, in that the laws are necessaryin a democratic society for the protection of morals and for theprotection 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 ofArticle 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 unnecessary to examine thequestion whether the laws in Northern Ireland relating to homosexualacts give rise to a separate breach of Article 14, read inconjunction with Article 8 (art. 14+8) of the Convention".
AS TO THE LAW
I. The alleged breach of article 8 (art. 8)
37.The applicant complained that under the law in force in Northern Ireland he is liable to criminal prosecution on account of hishomosexual conduct and that he has experienced fear, suffering andpsychological distress directly caused by the very existence of thelaws in question - including fear of harassment and blackmail.Hefurther complained that, following the search of his house inJanuary 1976, he was questioned by the police about certainhomosexual activities and that personal papers belonging to him wereseized during the search and not returned until more than a yearlater.
He alleged that, in breach of Article 8 (art. 8) of the Convention, he has thereby suffered, and continues to suffer, an unjustifiedinterference with his right to respect for his private life.
38.Article 8 (art. 8) provides as follows:
"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 ofnational security, public safety or the economic well-being of thecountry, for the prevention of disorder or crime, for the protectionof health or morals, or for the protection of the rights andfreedoms of others."
39.Although it is not homosexuality itself which is prohibited but the particular acts of gross indecency between males and buggery (seeparagraph 14 above), there can be no doubt but that male homosexual practices whose prohibition is the subject of the applicant'scomplaints come within the scope of the offences punishable underthe 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 place in public or in private, whatever the age or relationship of theparticipants involved, and whether or not the participants areconsenting.It is evident from Mr. Dudgeon's submissions, however,that his complaint was in essence directed against the fact thathomosexual acts which he might commit in private with other malescapable of valid consent are criminal offences under the law ofNorthern Ireland.
B. The existence of an interference with an Article 8 (art. 8) right
40.The Commission saw no reason to doubt the general truth of the applicant's allegations concerning the fear and distress that he hassuffered in consequence of the existence of the laws in question.TheCommission unanimously concluded that "the legislation complained ofinterferes with the applicant's right to respect for his private lifeguaranteed by Article 8 par. 1 (art. 8-1), in so far as it prohibitshomosexual acts committed in private between consenting males" (seeparagraphs 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 tobe a "victim" thereof under Article 25 (art. 25) of the Convention. Nor did the Government contest the Commission's above-quotedconclusion.
41.The Court sees no reason to differ from the views of the Commission: the maintenance in force of the impugned legislationconstitutes a continuing interference with the applicant's right torespect for his private life (which includes his sexual life) withinthe meaning of Article 8 par. 1 (art. 8-1).In the personalcircumstances of the applicant, the very existence of this legislationcontinuously and directly affects his private life (see, mutatismutandis, the Marckx judgment of 13 June 1979, Series A no. 31, p. 13,par. 27): either he respects the law and refrains from engaging - evenin private with consenting male partners - in prohibited sexual actsto which he is disposed by reason of his homosexual tendencies, or hecommits 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 personswith regard to private consensual homosexual acts involving malesunder 21 years of age (see paragraph 30 above).Although noproceedings seem to have been brought in recent years with regard tosuch acts involving only males over 21 years of age, apart frommental patients, there is no stated policy on the part of theauthorities not to enforce the law in this respect (ibid).Furthermore, apart from prosecution by the Director of PublicProsecution, there always remains the possibility of a privateprosecution (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 theapplicant in the enjoyment of his right to respect for his privatelife (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 the Court
42.In the Government's submission, the law in Northern Ireland relating to homosexual acts does not give rise to a breach ofArticle 8 (art. 8), in that it is justified by the terms ofparagraph 2 of the Article (art. 8-2).This contention was disputed byboth the applicant and the Commission.
43.An interference with the exercise of an Article 8 (art. 8) 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 arelegitimate under that paragraph and is "necessary in a democraticsociety" for the aforesaid aim or aims (see, mutatis, mutandis, theYoung, James and Webster judgment of 13 August 1981, Series A no. 44,p. 24, par. 59).
44.It has not been contested that the first of these three conditions was met.As the Commission pointed out in paragraph 99 ofits report, the interference is plainly "in accordance with thelaw" since it results from the existence of certain provisions inthe 1861 and 1885 Acts and the common law (see paragraph 14 above).
45.It next falls to be determined whether the interference is aimed at "the protection of morals" or "the protection of the rightsand freedoms of others", the two purposes relied on by theGovernment.
46.The 1861 and 1885 Acts were passed in order to enforce the then prevailing conception of sexual morality.Originally they applied toEngland and Wales, to all Ireland, then unpartitioned, and also, in thecase of the 1885 Act, to Scotland (see paragraph 16 above).Inrecent years the scope of the legislation has been restricted inEngland and Wales (with the 1967 Act) and subsequently in Scotland(with the 1980 Act): with certain exceptions it is no longer acriminal offence for two consenting males over 21 years of age tocommit 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 inrelation to the proposal to amend the existing law was, the Courtaccepts, prompted by what the United Kingdom Government judged to bethe strength of feeling in Northern Ireland against the proposedchange, 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 aimpursued by the legislation remains the protection of morals in the sense of moral standards obtaining in Northern Ireland.
47.Both the Commission and the Government took the view that, in so far as the legislation seeks to safeguard young persons fromundesirable and harmful pressures and attentions, it is also aimedat "the protection of the rights and freedoms of others".TheCourt recognises that one of the purposes of the legislation is toafford safeguards for vulnerable members of society, such as theyoung, against the consequences of homosexual practices.However, itis 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 themoral ethos or moral standards of a society as a whole (seeparagraph 108 of the Commission's report), but may also, as theGovernment pointed out, cover protection of the moral interests andwelfare of a particular section of society, for exampleschoolchildren (see the Handyside judgment of 7 December 1976,Series A no. 24, p. 25, par. 52 in fine - in relation toArticle 10 par. 2 (art. 10-2) of the Convention).Thus, "protectionof the rights and freedoms of others", when meaning the safeguardingof the moral interests and welfare of certain individuals or classesof individuals who are in need of special protection for reasons suchas lack of maturity, mental disability or state of dependence, amountsto 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.
48.As the Commission rightly observed in its report (at 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 ofthe legislation is "necessary in a democratic society" for these aims.
49.There can be no denial that some degree of regulation of male homosexual conduct, as indeed of other forms of sexual conduct, bymeans of the criminal law can be justified as "necessary in ademocratic society".The overall function served by the criminallaw in this field is, in the words of the Wolfenden report (seeparagraph 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 providesufficient safeguards against exploitation and corruption of others, particularly those who are specially vulnerable because they areyoung, weak in body or mind, inexperienced, or in a state of specialphysical, official or economic dependence".In practice there islegislation on the matter in all the member States of the Council ofEurope, but what distinguishes the law in Northern Irelandfrom that existing in the great majority of the member States is that itprohibits generally gross indecency between males and buggerywhatever the circumstances.It being accepted that some form oflegislation is "necessary" to protect particular sections ofsociety as well as the moral ethos of society as a whole, thequestion in the present case is whether the contested provisions ofthe law of Northern Ireland and their enforcement remain within thebounds of what, in a democratic society, may be regarded asnecessary in order to accomplish those aims.
50.A number of principles relevant to the assessment of the "necessity", "in a democratic society", of a measure taken infurtherance of an aim that is legitimate under the Convention havebeen stated by the Court in previous judgments.
51.Firstly, "necessary" in this context does not have the flexibility of such expressions as "useful", "reasonable", or"desirable", but implies the existence of a "pressing socialneed" for the interference in question (see the above-mentionedHandyside judgment, p. 22, par. 48).
52.In the second place, it is for the national authorities to make 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).TheGovernment inferred from the Handyside judgment that the margin ofappreciation will be more extensive where the protection of moralsis in issue.It is an indisputable fact, as the Court stated in theHandyside judgment, that "the view taken ... of the requirements ofmorals varies from time to time and from place to place, especiallyin our era," and that "by reason of their direct and continuouscontact 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 the nature of the activities involved will affect the scope of themargin of appreciation.The present case concerns a most intimateaspect of private life.Accordingly, there must exist particularlyserious reasons before interferences on the part of the publicauthorities can be legitimate for the purposes of paragraph 2 ofArticle 8 (art. 8-2).
53.Finally, in Article 8 (art. 8) as in several other Articles of the 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 democraticsociety" - 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).
54.The Court's task is to determine on the basis of the aforesaid principles whether the reasons purporting to justify the"interference" in question are relevant and sufficient underArticle 8 par. 2 (art. 8-2) (see the above-mentioned Handysidejudgment, pp. 23-24, par. 50).The Court is not concerned with makingany value-judgment as to the morality of homosexual relations betweenadult males.
55.It is convenient to begin by examining the reasons set out by the Government in their arguments contesting the Commission's conclusionthat the penal prohibition of private consensual homosexual actsinvolving male persons over 21 years of age is not justified underArticle 8 par. 2 (art. 8-2) (see paragraph 35 above).
56.In the first place, the Government drew attention to what they described as profound differences of attitude and public opinionbetween Northern Ireland and Great Britain in relation to questionsof morality.Northern Irish society was said to be more conservativeand to place greater emphasis on religious factors, as wasillustrated by more restrictive laws even in the field ofheterosexual 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 theGovernment and the Commission both emphasised, in assessing therequirements of the protection of morals in Northern Ireland, thecontested measures must be seen in the context of Northern Irishsociety.
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 NorthernIreland (see, mutatis mutandis, the above-mentioned Sunday Timesjudgment, pp. 37-38, par. 61; cf. also the above-mentioned Handysidejudgment, pp. 26-28, par. 54 and 57).Where there are disparatecultural communities residing within the same State, it may well bethat different requirement, both moral and social, will face thegoverning authorities.
57.As the Government correctly submitted, it follows that the moral climate in Northern Ireland in sexual matters, in particular asevidenced by the opposition to the proposed legislative change, isone of the matters which the national authorities may legitimatelytake into account in exercising their discretion.There is, theCourt accepts, a strong body of opposition stemming from a genuineand sincere conviction shared by a large number of responsiblemembers of the Northern Irish community that a change in the lawwould be seriously damaging to the moral fabric of society (seeparagraph 25 above).This opposition reflects - as do in another waythe recommendations made in 1977 by the Advisory Commission (seeparagraph 23 above - a view both of the requirements of morals inNorthern 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 certainlyrelevant for the purposes of Article 8 par. 2 (art. 8-2).
58.The Government argued that this conclusion is further strengthened by the special constitutional circumstances of NorthernIreland (described above at paragraphs 19 and 20).In the periodbetween 1921 (when the Northern Ireland Parliament first met) and1972 (when it last sat), legislation in the social field wasregarded as a devolved matter within the exclusive domain of thatParliament.As a result of the introduction of "direct rule" fromWestminster, the United Kingdom Government, it was said, had aspecial responsibility to take full account of the wishes of thepeople 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 isevident.However, the Court does not consider it conclusive inassessing the "necessity", for the purposes of the Convention, ofmaintaining 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 aninterim period of direct rule.
59.Without any doubt, faced with these various considerations, the United Kingdom Government acted carefully and in good faith; what ismore, they made every effort to arrive at a balanced judgmentbetween the differing viewpoints before reaching the conclusion thatsuch a substantial body of opinion in Northern Ireland was opposedto a change in the law that no further action should be taken (see,for example, paragraphs 24 and 26 above).Nevertheless, this cannotof itself be decisive as to the necessity for the interference withthe applicant's private life resulting from the measures beingchallenged (see the above-mentioned Sunday Times judgment, p. 36,par. 59).Notwithstanding the margin of appreciation left to thenational authorities, it is for the Court to make the finalevaluation as to whether the reasons it has found to be relevantwere sufficient in the circumstances, in particular whether theinterference complained of was proportionate to the social needclaimed for it (see paragraph 53 above).
60.The Government right affected by the impugned legislation protects an essentially private manifestation of the humanpersonality (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, ofhomosexual behaviour to the extent that in the great majority of themember States of the Council of Europe it is no longer considered to benecessary or appropriate to treat homosexual practices of the kindnow in question as in themselves a matter to which the sanctions ofthe criminal law should be applied; the Court cannot overlook themarked changes which have occurred in this regard in the domesticlaw of the member States (see, mutatis mutandis, the above-mentionedMarckx judgment, p. 19, par. 41, and the Tyrer judgment of25 April 1978, Series A no. 26, pp. 15-16, par. 31).In NorthernIreland itself, the authorities have refrained in recent years fromenforcing the law in respect of private homosexual acts betweenconsenting males over the age of 21 years capable of valid consent(see paragraph 30 above).No evidence has been adduced to show thatthis has been injurious to moral standards in Northern Ireland or thatthere 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, therebeing no sufficient justification provided by the risk of harm tovulnerable sections of society requiring protection or by theeffects on the public.On the issue of proportionality, the Courtconsiders that such justifications as there are for retaining thelaw in force unamended are outweighed by the detrimental effectswhich the very existence of the legislative provisions in question canhave on the life of a person of homosexual orientation like theapplicant.Although members of the public who regard homosexualityas immoral may be shocked, offended or disturbed by the commissionby others of private homosexual acts, this cannot on its own warrantthe application of penal sanctions when it is consenting adultsalone who are involved.
61.Accordingly, the reasons given by the Government, although relevant, are not sufficient to justify the maintenance in force ofthe impugned legislation in so far as it has the general effect ofcriminalising private homosexual relations between adult malescapable of valid consent.In particular, the moral attitudes towardsmale homosexuality in Northern Ireland and the concern that anyrelaxation in the law would tend to erode existing moral standardscannot, without more, warrant interfering with the applicant'sprivate life to such an extent. "Decriminalisation" does not implyapproval, and a fear that some sectors of the population might drawmisguided conclusions in this respect from reform of the legislationdoes 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 providedfor, disproportionate to the aims sought to be achieved.
62.In the opinion of the Commission, the interference complained of by the applicant can, in so far as he is prevented from having sexualrelations with young males under 21 years of age, be justified asnecessary for the protection of the rights of others (see especiallyparagraphs 105 and 116 of the report).This conclusion was acceptedand adopted by the Government, but disputed by the applicant whosubmitted that the age of consent for male homosexual relations shouldbe 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 homosexualconduct notably in order to provide safeguards against theexploitation 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 authoritiesto decide on the appropriate safeguards of this kind required forthe defence of morals in their society and, in particular, to fixthe age under which young people should have the protection of thecriminal law (see paragraph 52 above).
63.Mr. Dudgeon has suffered and continues to suffer an unjustified interference with his right to respect for his private life.There isaccordingly a breach of Article 8 (art. 8).
II. The alleged breach of article 14 taken in conjunctionwith article 8 (art. 14+8)
64.Article 14 (art. 14) reads as follows:
"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any groundsuch as sex, race, colour, language, religion, political or otheropinion, national or social origin, association, with a nationalminority, property, birth or other status."
65.The applicant claimed to be a victim of discrimination in breach of Article 14 taken in conjunction with Article 8 (art. 14+8), inthat he is subject under the criminal law complained of to greaterinterference with his private life than are male homosexuals in otherparts of the United Kingdom and heterosexuals and female homosexualsin Northern Ireland itself.In particular, in his submissionArticle 14 (art. 14) requires that the age of consent should be thesame for all forms of sexual relations.
66.When dealing with the issues under Article 14 (art. 14), the Commission and likewise the Government distinguished between malehomosexual acts involving those under and those over 21 years of age.
The Court has already held in relation to Article 8 (art. 8) that itfalls in the first instance to the national authorities to fix the ageunder which young people should have the protection of the criminallaw (see paragraph 62 above).The current law in Northern Ireland issilent in this respect as regards the male homosexual acts which itprohibits.It is only once this age has been fixed that an issue underArticle 14 (art. 14) might arise; it is not for the Court topronounce upon an issue which does not arise at the present moment.
67.Where a substantive Article of the Convention has been invoked both on its own and together with Article 14 (art. 14) and a separatebreach has been found of the substantive Article, it is not generallynecessary for the Court also to examine the case under Article 14(art. 14), though the position is otherwise if a clear inequality oftreatment in the enjoyment of the right in question is a fundamentalaspect of the case (see the Airey judgment of 9 October 1979, Series Ano. 32 p. 16, par. 30).
68.This latter condition is not fulfilled as regards the alleged discrimination resulting from the existence of different lawsconcerning male homosexual acts in various parts of the UnitedKingdom (see paragraphs 14, 17 and 18 above).Moreover, Mr. Dudgeonhimself conceded that, if the Court were to find a breach ofArticle 8 (art. 8), then this particular question would ceaseto have the same importance.
69.According to the applicant, the essential aspect of his complaint under Article 14 (art. 14) is that in Northern Ireland malehomosexual acts, in contrast to heterosexual and female homosexualacts, are the object of criminal sanctions even when committed inprivate between consenting adults.
The central issue in the present case does indeed reside in the existence in Northern Ireland of legislation which makes certainhomosexual acts punishable under the criminal law in allcircumstances.Nevertheless, this aspect of the applicant'scomplaint under Article 14 (art. 14) amounts in effect to thesame complaint, albeit seen from a different angle, that the Court hasalready 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 judgmentof 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 torespect for his private sexual life give rise to a breach of Article 8(art. 8) by reason of its breadth and absolute character (seeparagraph 61 in fine above), there is no useful legal purpose to beserved in determining whether he has in addition suffereddiscrimination as compared with other persons who are subject tolesser limitations on the same right.This being so, it cannot be saidthat a clear inequality of treatment remains a fundamental aspect ofthe case.
70.The Court accordingly does not deem it necessary to examine the case under Article 14 (art. 14) as well.
III. The application of article 50 (art. 50)
71.Counsel for the applicant stated that, should the Court find theConvention 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 policeinvestigation in January 1976; secondly, the general fear and distresssuffered by Mr. Dudgeon since he was 17 years of age; and finally,legal and other expenses.Counsel put forward figures of 5,000 poundsunder 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.
72.Consequently, although it was raised under Rule 47 bis of theRules of Court, this question is not ready for decision and must bereserved; in the circumstances of the case, the Court considers thatthe matter should be referred back to the Chamber in accordance withRule 50 par. 4 of the Rules of Court.
For the reasons, the Court
1.Holds by fifteen votes to four that there is a breach of Article 8 (art. 8) of the Convention;
2.Holds by fourteen votes to five that it is not necessary also to examine the case under Article 14 taken in conjunction with Article 8(art. 14+8);
3.Holds unanimously that the question of the application of 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 ofOctober, one thousand nine hundred and eighty-one.
For the President
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. PinheiroFarinha;
- partially dissenting opinion of Mr. Walsh.
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 prohibit gross indecency between males and buggery.These enactments intheir 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 relationswere necessary in a democratic society for the protection of moralsand for the protection of the rights and freedoms of others, sucha 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 case into consideration, I have arrived at a conclusion opposite tothe one of the majority.I proceed to give my reasons as brieflyas possible for finding no violation on the part of the respondentGovernment in this case.
1.Christian and Moslem religions are all united in the condemnationof homosexual relations and of sodomy.Moral conceptions to a great degree are rooted in religious beliefs.
2.All civilised countries until recent years penalised sodomy 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 the order of nature, or (b) permits a male person to have carnal knowledgeof him against the order of natureis guilty of a felony and is liable to imprisonment for five years."
Under section 173, anyone who attempts to commit such an offenceis 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 betterposition in forecasting the public outcry and the turmoil whichwould ensue if such laws are repealed or amended in favour ofhomosexuals either in Cyprus or in Northern Ireland.Bothcountries are religious-minded and adhere to moral standards whichare centuries' old.
3.While considering the respect due to the private life of a homosexual under Article 8 § 1 (art. 8-1), we must not forget andmust bear in mind that respect is also due to the people holdingthe opposite view, especially in a country populated by a greatmajority of such people who are completely against unnatural immoralpractices.Surely the majority in a democratic society are alsoentitled 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 andbring 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 thenecessity of respect for one's private life, to underestimate thenecessity of keeping a law in force for the protection of moralsheld 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 itnecessary to keep the relevant Acts on the statute book for theprotection of morals as well as for the preservation of public peace.
4.If a homosexual claims to be a sufferer because of physiological, psychological or other reasons and the law ignores such circumstances,his case might then be one of exculpation or mitigation if histendencies are curable or incurable.Neither of these argumentshas been put forward or contested.Had the applicant done so, thenhis domestic remedies ought to have been exhausted.In fact hehas 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 toindulge 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 wascontended that this fact indicates the indifference of the peoplein Northern Ireland to the non-prosecution of homosexual offencescommitted.The same fact, however, might indicate the rarity ofhomosexual offences having been perpetrated and also theunnecessariness and the inexpediency of changing the law.
5.In ascertaining the nature and scope of morals and the degree of the necessity commensurate to the protection of such moralsin relation to a national law, adverted to in Articles 8, 9 and10 (art. 8, art. 9, art. 10) of the European Convention on HumanRights, the jurisprudence of this Court has already provided uswith guidelines:
"A"The conception of morals changes from time to time andfrom place to place.There is no uniform European conceptionof morals.State authorities of each country are in abetter position than an international judge to give anopinion as to the prevailing standards of morals in theircountry.(Handyside judgment of 7 December 1976, Series Ano. 24, p. 22, § 48)
It cannot be disputed that the moral climate obtaining in NorthernIreland is against the alteration of the law under consideration,the effect of which alteration, if made, would be in some way orother to license immorality.
"B"State authorities likewise are in a better position to assess the extent to which the national legislation should necessarilygo in restricting, for theprotection of morals and of therights of others, rights secured under the relevant Articlesof the Convention.
The legislative assembly competent to alter the laws under review refrained to do so, believing it to be necessary to maintain themfor the protection of morals prevailing in the region and for keepingthe peace.The Contracting States are entitled to a margin ofappreciation, 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 situationunder consideration, I fail to find that the keeping in force inNorthern Ireland of Acts - which date from the last century -prohibiting gross indecency and buggery between male adultshas become unnecessary for the protection of morals and of therights of others in that country.I have come to the conclusiontherefore that the respondent Government did not violate the Convention.
Dissenting opinion of judges Evrigenis and Garcia De Enterria
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, wehave felt compelled to vote against point no. 2 in the operativeprovisions 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 theapplicant - ought to have been examined under Article 14read in conjunction with Article 8 (art. 14+8).Even accepting therestrictive formula enunciated by the Court in the Airey judgment andapplied in the judgment in the present case (at paragraph 67: "a clearinequality of treatment" being "a fundamental aspect of the case"), itwould be difficult to assert that these conditions were not plainlysatisfied in the circumstances.In any event, to interpret Article 14(art. 14) in the restrictive manner heralded in the Airey judgmentdeprives this fundamental provision in great part of its substance andfunction in the system of substantive rules established under theConvention.
Dissenting opinion of judge Matscher
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.Asa result, I am unable to concur with the conclusions of the judgmenton 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 consentingadults (leaving aside certain special situations as, for example,where there has been abuse of a state of dependence or where theacts occur in certain contexts of communal living such as a boardingschool, barracks, etc.) is "necessary", within the meaning ofArticle 8 § 2 (art. 8-2), for the protection of those values whicha given society legitimately (likewise for the purposes of theConvention) wishes to preserve.I therefore agree with the generaltenor of the reasoning in the judgment as regards the interpretationto 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 interferencein 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 thataim is necessary if failure to take the measure would create a riskthat that aim would not be achieved.It is only in this context thatone can examine the necessity for a certain measure and, adding afurther factor, the proportionality between the value attaching to theaim and the seriousness of the measure (see paragraphs 54 and 60 infine).Since the adjective "necessary" thus refers solely to themeasures (that is, the means), it does not permit an assessmentwhether the aim itself is legitimate, something that the judgmentappears 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 toleranceadopted in practice by the Northern Ireland authorities has beeninjurious to moral standards in the region.I cannot but regardthis as a purely speculative argument, devoid of any foundationand 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 tobe 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 prosecutionsin circumstances corresponding to those of the present case.Noone contradicted this assertion which, moreover, would more thanappear to be a correct statement of the reality.It is true thatat common law a prosecution could also be brought by a privateindividual, subject to the Director of Public Prosecutions' powerto discontinue the proceedings.However, here again there havebeen 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 prosecutionsfor homosexual acts committed in private between consenting adults.The absence of any form of persecution seems to be well establishedby the existence of a number of associations (the Commission listsat least five in paragraph 30 of its report) - the applicant beingthe Secretary of one of them - which pursue their activities hardlyin secret but more or less without any constraint and are, amongstother things, engaged in conducting a campaign for the legalisationof 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 directresult of the laws in force - something which the Commissionand the Court saw no reason to doubt (paragraphs 40-41) - seemsto 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 obtainingin Northern Ireland, that is to say, the attitude in fact adoptedfor at least ten years by the competent authorities in respectof 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 (inparagraph 41): in the former case, the provisions of Belgian civillaw complained of applied directly to the applicant whosuffered their consequences in her family life; in the instantcase, the legislation complained of is formally in force but asa matter of fact it is not applied as regards those of its aspectswhich are being attacked.This being so, the applicant and thoselike him can organise their private life as they choose withoutany interference on the part of the authorities.
Of course, the applicant and the organisations behind him are seeking more: they are seeking the express and formal repeal of the lawsin force, that is to say a "charter" declaring homosexuality tobe an alternative equivalent to heterosexuality, with all theconsequences that that would entail (for example, as regards sexeducation).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 particularcircumstances, the police were executing a warrant under the Misuseof Drugs Act 1971.During the search, the police found papersproviding evidence of his homosexual tendencies.The reason whythe police pursued their enquiries was probably also to investigatewhether the applicant did not have homosexual relations with minorsas 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 ofconsent points in the same direction; furthermore, the enquiriesin question took place in the context of a more extensive operationon the part of the police, the purpose of which was to trace aminor who was missing from home and believed to be associating withhomosexuals (see on this point the reply of the Government toquestion 8, document Court (81) 32).Furthermore, the file on thecase 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 interferencewith his private life.For this reason I conclude that there hasnot been a violation of Article 8 (art. 8) of the Convention inthe 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 theage of consent; (c) and (d) differences of treatment under thecriminal law between male homosexuality and female homosexualityand 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: malehomosexuality is made punishable under the criminal law in NorthernIreland without any distinction as to the age of the persons involved;consequently, it is only once this age has been fixed that an issueunder 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 distinction according to age and exhibit tolerance only in relation tohomosexuality between consenting adults.I find that, for reasonswhose obviousness renders any explanation superfluous, thisdifferentiation is perfectly legitimate for the purposes ofArticle 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 substantiveArticle of the Convention has been found, there is generally noneed for the Court also to examine the case under Article 14(art. 14); the position is otherwise only if a clear inequalityof treatment in the enjoyment of the right at issue is a fundamentalaspect of the case (reference to the Airey judgment of9 October 1979, Series A no. 32, paragraph 30).This latter conditionis said not be fulfilled in the circumstances.Furthermore,the judgment continues, there is no call to rule on the meritsof a particular issue which is part of and absorbed by a wider issue(reference to the Deweer judgment of 27 February 1980, Series Ano. 35, paragraph 56 in fine), this being the position in the presentcase.In these conditions, there appeared to the majority to beno useful legal purpose to be served in determining whether theapplicant 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 ofthe Convention which has been alleged by the applicant and contestedby the respondent Government, it is the Court's duty, providedthat the application is admissible, to decide the point by givingan answer on the merits of the issue that has been raised.TheCourt cannot escape this responsibility by employing formulas thatare 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, physicalor 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 isonly 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).Ido not, however, find these conditions satisfied in the presentcase, with the result that a definite position must be taken regarding the alleged violation of Article 14 (art. 14) in relation to thecomplaints 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.Toclaim 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 ofhomosexuality, male and female.The differing treatment given to them under the criminal law is thus founded, to my mind, onclearly 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 theapplicant.
Dissenting opinion of judge Pinheiro Farinha
I am unable to agree with the views and conclusions expressed in the present case by my eminent colleagues as regards the breachby 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 someonewho 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 tobe associating with homosexuals" (dissenting opinion ofJudge 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 anorganisation campaigning for the legalisation of homosexualityand 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 avictim.
There being no victim, the conclusion must be that there was no breach of Article 8 (art. 8) or of Article 14 taken togetherwith 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 otherforms of sexual conduct, can be justified as 'necessary in a democraticsociety'", and that "this necessity for some degree of control mayeven 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)?
1.The law of Northern Ireland does not make homosexuality a crimenor does it make all homosexual activities criminal.The1885 Act is the only one of the two legislative provisions attacked inthese present proceedings that can be described as dealing solely withhomosexual activities.The Act of 1885 makes criminal the commissionof acts of gross indecency between male persons whether in private or inpublic.The provisions of the Act of 1861 which is also impugned bythe applicant applies equally to heterosexual activities andhomosexual activities.The applicant's complaint is directed onlytowards the application of the provision of the 1861 Act to homosexualactivities of the type mentioned in the section impugned.Of these,the Court is in reality concerned with but one, namely sodomy betweenmale persons.
2.The Act of 1885 does not specifically designate any particular acts of gross indecency but simply prohibits "gross indecency".Acts of indecency between male persons are not per se criminal offencesbut only such of them as amount to "gross indecency".What particularacts in any given case may be held to amount to gross indecencyis a matter for the court, which means in effect the jury, to decideon the particular facts of each case.
3.The applicant did not claim that he had at any time indulged in any of the activities prohibited either by the law of 1861 orby the law of 1885, nor has he stated that he desires to indulgein them or that he intends to do so.In effect his case is thatif he should choose to engage in any of the prohibited activitiesthe effect of the law, if enforced, would be to violate the protectionof his private life which is guaranteed by Article 8 (art. 8) ofthe Convention.In fact no action has been taken against him bythe authorities under either of the legislative provisions referredto.
4.It is true that the police displayed an interest in the questionof 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 legislativeprovisions.The documentary material which gave rise to this policeinterest came to light during the execution by the police of asearch warrant issued pursuant to the laws which prohibit themisuse of drugs.The applicant was requested to accompany thepolice to the police station for the purpose, inter alia, ofcontinuing 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 damagesin the ordinary civil courts.So far as is disclosed by the evidencein the application, no such action has ever been brought orcontemplated and it has not been suggested that the applicant'svisit to the police station was other than purely voluntary.Itis common case that at the police station he was informed by thepolice that he was under no obligation to answer any questionsor to make any statement.Notwithstanding this, the applicantvoluntarily made a statement the contents of which have not beendisclosed to the Court.The Court does not know whether the statementwas incriminatory or exculpatory.No prosecution was ever institutedagainst the applicant either by the police or by the Director ofPublic Prosecutions in respect of any alleged illegal homosexualactivities.
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 searchwarrant dealing with the abuse of drugs and no complaint has beenmade about the warrant or the entry.Some personal papers, includingcorrespondence and diaries belonging to the applicant in whichwere 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 respectof which there has been no complaint.
5.It is clear that the applicant's case is more in the nature of a "class action".In so far as he is personally concerned,it scarcely amounts to a quiatimet action.Having suffered noprosecution himself he is in effect asking the Court to strikedown two legislative provisions of a memberState.The Court hasno jurisdiction of a declaratory character in this area unrelatedto an injury actually suffered or alleged to have been sufferedby the applicant.In my view, if the Court were to undertake any such competence in cases where the applicant has neither been avictim nor is imminently to be a victim, the consequences wouldbe far-reaching in every memberState.
6.In my opinion the applicant has not established that he is a victim within the meaning of Article 25 (art. 25) of the Conventionand he is therefore not entitled to the ruling he seeks.
Alleged breach of Article 8 (art. 8)
7.If the applicant is to be regarded as being a victim within the meaning of Article 25 (art. 25), then the applicability ofArticle 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 homeand his correspondence".There is no suggestion that any pointrelating to family life arises in this case.Therefore the complaintis in reality one to a claim of right to indulge in any homosexualactivities in the course of his private life and, presumably, inprivate.
8.The first matter to consider is the meaning of paragraph 1 of Article 8 (art. 8-1).Perhaps the best and most succinct legaldefinition of privacy is that given by Warren and Brandeis - itis "the right to be let alone".The question is whether underArticle 8 § 1 (art. 8-1), the right to respect for one's privatelife is to be construed as being an absolute right irrespectiveof the nature of the activity which is carried on as part of the private life and no interference with this right under anycircumstances is permitted save within the terms of paragraph 2of Article 8 (art. 8-2).This appears to be the interpretationput 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 humanpersonality in question may in private life manifest dangerous or eviltendencies calculated to produce ill-effects upon himself or uponothers.The Court does not appear to consider as a material factorthat the manifestation in question may involve more than one person orparticipation by more than one person provided the manifestation canbe characterised as an act of private life.If for the purposes ofthis case this assumption is to be accepted, one proceeds to thequestion of whether or not the interference complained of can bejustified under paragraph 2 (art. 8-2).This in turn begs thequestion that under Article 8 (art. 8) the inseparable socialdimensions of private life or "private morality" are limited to theconfines of paragraph 2 of Article 8 (art. 8-2).It is beyondquestion that the interference, if there was such, was in accordancewith the law.The question posed by paragraph 2 (art. 8-2) is whetherthe interference permitted by the law is necessary in a democraticsociety in the interests of the protection of health or morals or therights and freedoms of others.
9.This raises the age-old philosophical question of what is the purpose of law.Is there a realm of morality which is notthe law's business or is the law properly concerned withmoral principles?In the context of United Kingdom jurisprudenceand the true philosophy of law this debate in modern times hasbeen between Professor H. L. A. Hart and Lord Devlin.Generallyspeaking the former accepts the philosophy propounded in the lastcentury by John Stuart Mill while the latter contends that moralityis properly the concern of the law.Lord Devlin argues that asthe 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 itdies".
He claims that the criminal law of England not only "has from the very first concerned itself with moral principles but continuesto concern itself with moral principles".Among the offences whichhe pointed to as having been brought within the criminal law onthe basis of moral principle, notwithstanding that it could beargued 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 whichhe viewed as ones which could be done in private and without offence to others and need not involve the corruption or exploitation ofothers.Yet, as he pointed out, no one has gone so far as to suggestthat they should all be left outside the criminal law as mattersof private morality.
10.It would appear that the United Kingdom does claim that in principle it can legislate against immorality.In modern UnitedKingdom legislation a number of penal statutes appear to be basedupon moral principles and the function of these penal sanctionsis to enforce moral principles.Cruelty to animals is illegalbecause of a moral condemnation of enjoyment derived from theinfliction of pain upon sentient creatures.The laws restrictingor preventing gambling are concerned with the ethical significanceof gambling which is confined to the effect that it may have onthe character of the gambler as a member of society.The legislationagainst racial discrimination has as its object the shaping ofpeople's moral thinking by legal sanctions and the changing ofhuman behaviour by having the authority to punish.
11.The opposite view, traceable in English jurisprudence to John Stuart Mill, is that the law should not intervene in mattersof private moral conduct more than necessary to preserve publicorder and to protect citizens against what is injurious and offensiveand that there is a sphere of moral conduct which is best leftto individual conscience just as if it were equitable to libertyof thought or belief.The recommendations of the Wolfenden Committeerelied partly upon this view to favour the non-intervention ofthe law in case of homosexual activities between consenting adultmales.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 freedom of choice in action in matters ofprivate morality.Unless a deliberate attempt is to be made bysociety, acting through the agency of the law, to equate the sphereof crime with that of sin, there must remain a realm of privatemorality and immorality which is, in brief and crude terms, notthe law's business.To say this is not to condone or encourageprivate immorality."
This aspect of the Wofenden Committee's report apparently commends itself to the Court (see paragraphs 60 and 61 of the judgment).
12.The Court also agrees with the conclusion in the WolfendenReport to the effect that there is a necessity for some degreeof control even in respect of consensual acts committed in privatenotably where there is a call "to provide sufficient safeguardsagainst exploitation and corruption of others, particularly thosewho are especially vulnerable because they are young, weak inbody 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 isnecessary to protect not only particular sections of society butalso the moral ethos of society as a whole (ibid.).However,experience has shown that exploitation and corruption of othersis not confined to persons who are young, weak in body or mindor inexperienced or in a state of physical, moral or economicdependence.
13.The fact that a person consents to take part in the commission of homosexual acts is not proof that such person is sexually orientatedby nature in that direction.A distinction must be drawn betweenhomosexuals who are such because of some kind of innate instinctor pathological constitution judged to be incurable and those whosetendency comes from a lack of normal sexual development or fromhabit or from experience or from other similar causes but whosetendency is not incurable.So far as the incurable category isconcerned, the activities must be regarded as abnormalities oreven as handicaps and treated with the compassion and tolerancewhich is required to prevent those persons from being victimisedin respect of tendencies over which they have no control and forwhich they are not personally responsible.However, otherconsiderations are raised when these tendencies are translatedinto activities.The corruption for which the Court acknowledgesneed for control and the protection of the moral ethos of thecommunity referred to by the Court may be closely associated withthe translation of such tendencies into activities.Even assumingone of the two persons involved has the incurable tendency, theother may not.It is known that many male persons who areheterosexual 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 naturehomosexually predisposed or orientated.The Court, in the absenceof evidence to the contrary, has accepted this as the basis ofthe 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).
14.If it is accepted that the State has a valid interest in the prevention of corruption and in the preservation of the moralethos of its society, then the State has a right to enact suchlaws as it may reasonably think necessary to achieve these objects.The rule of law itself depends on a moral consensus in the communityand in a democracy the law cannot afford to ignore the moral consensusof the community, whether by being either too far below it or toofar above it, the law is brought into contempt.Virtue cannotbe legislated into existence but non-virtue can be if the legislation renders excessively difficult the struggle after virtue.Sucha situation can have an eroding effect on the moral ethos of thecommunity in question.The ultimate justification of law is thatit serves moral ends.It is true that many forms of immoralitywhich can have a corrupting effect are not the subject of prohibitoryor penal legislation.However such omissions do not imply a denialof the possibility of corruption or of the erosion of the moralethos of the community but acknowledge the practical impossibilityof legislating effectively for every area of immorality.Wheresuch legislation is enacted it is a reflection of the concern ofthe "prudent legislator".
Moreover, it must not be overlooked that much of the basis of the Wolfenden Committee's recommendation that homosexual relationsbetween adult males should be decriminalised was the belief thatthe law was difficult to enforce and that when enforced was likelyto do more harm than good by encouraging other evils such asblackmail.This is obviously not necessarily of universal validity.The relevant conditions may vary from one community to another.Experience also shows that certain sexual activities which arenot in themselves contraventions of the criminal law can also befruitful subjects for blackmail when they offend the moral ethosof the community, e.g. adultery, female homosexuality and, even,where it is not illegal, male homosexuality.
15.Sexual morality is only one part of the total area of morality and a question which cannot be avoided is whether sexual moralityis "only private morality" or whether it has an inseparable socialdimension.Sexual behaviour is determined more by cultural influencesthan by instinctive needs.Cultural trends and expectations cancreate drives mistakenly thought to be intrinsic instinctual urges.The legal arrangement and prescriptions set up to regulate sexualbehaviour are very important formative factors in the shaping ofcultural and social institutions.
16.In my view, the Court's reference to the fact that in most countries in the Council of Europe homosexual acts in private betweenadults are no longer criminal (paragraph 60 of the judgment) doesnot really advance the argument.The twenty-one countriesmaking up the Council of Europe extend geographically from Turkeyto Iceland and from the Mediterranean to the Arctic Circle andencompass considerable diversities of culture and moral values.The Court states that it cannot overlook the marked changes whichhave occurred in the laws regarding homosexual behaviour throughout the member States (ibid.) It would be unfortunate if this shouldlead to the erroneous inference that a Euro-norm in the law concerninghomosexual practices has been or can be evolved.
17.Religious beliefs in Northern Ireland are very firmly held and directly influence the views and outlook of the vast majorityof persons in Northern Ireland on questions of sexual morality.In so far as male homosexuality is concerned, and in particularsodomy, this attitude to sexual morality may appear to set thepeople of Northern Ireland apart from many people in other communitiesin Europe, but whether that fact constitutes a failing is, to saythe least, debatable.Such views on unnatural sexual practices do not differ materially from those which throughout historyconditioned the moral ethos of the Jewish, Christian and Muslimcultures.
18.The criminal law at no time has been uniform throughout theseveral legal systems within the United Kingdom.The Court recognisesthat where there are disparate cultural communities residing within the same State it may well be that different requirements, bothmoral and social, will face the governing authorities(paragraph 56 of the judgment).The Court also recognises that thecontested measures must be seen in the context of Northern Ireland society (ibid.). The United Kingdom Government, having responsibilityfor statutory changes in any of the legal systems which operate withinthe United Kingdom, sounded out opinion in Northern Ireland on thisquestion of changing the law in respect of homosexual offences.While it is possible that the United Kingdom Government may have beenmistaken in its assessment of the effect the sought-after change inthe law would have on the community in Northern Ireland, nevertheless it is in as good, if not a better, position than is the Court to assessthat situation.Criminal sanctions may not be the most desirable wayof dealing with the situation but again that has to be assessed in thelight of the conditions actually prevailing in Northern Ireland.Inall cultures matters of sexual morality are particularly sensitiveones and the effects of certain forms of sexual immorality are not assusceptible of the same precise objective assessment that is possiblein matters such as torture or degrading and inhuman treatment.Tothat extent the Court's reference in its judgment (paragraph 60) toTyrer's case is not really persuasive in the present case.It isrespectfully suggested that the Marckx judgment is not really relevantin the present case as that concerned the position of an illegitimatechild whose own actions were not in any way in question.
19.Even if it should be thought, and I do not so think, that the people of Northern Ireland are more "backward" than the othersocieties within the Council of Europe because of their attitudetowards homosexual practices, that is very much a value judgmentwhich depends totally upon the initial premise.It is difficultto gauge what would be the effect on society in Northern Irelandif the law were now to permit (even with safeguards for young peopleand people in need of protection) homosexual practices of the typeat present forbidden by law.I venture the view that the Governmentconcerned, having examined the position, is in a better positionto evaluate that than this Court, particularly as the Court admitsthe competence of the State to legislate in this matter but queriesthe proportionality of the consequences of the legislation in force.
20.The law has a role in influencing moral attitudes and if the respondent Government is of the opinion that the change soughtin the legislation would have a damaging effect on moral attitudesthen in my view it is entitled to maintain the legislation it has.The judgment of the Court does not constitute a declaration tothe effect that the particular homosexual practices which are subjectto penalty by the legislation in question virtually amount tofundamental human rights.However, that will not prevent it beinghailed as such by those who seek to blur the essential differencebetween homosexual and heterosexual activities.
21.Even the Wolfenden Report felt that one of the functionsof the criminal law was to preserve public order and decency and to provide sufficient safeguards against the exploitation and corruptionof others and therefore recommended that it should continue tobe an offence "for a third party to procure or attempt to procure an act of gross indecency between male persons whetheror not the act to be procured constitutes a criminal offence". Adults, even consenting adults, can be corrupted and may be exploitedby reason of their own weaknesses.In my view this is an area inwhich the legislature has a wide discretion or margin of appreciation which should not be encroached upon save where it is clear beyonddoubt that the legislation is such that no reasonable communitycould enact.In my view no such proof has been established inthis case.
22.In the United States of America there has been considerable litigation concerning the question of privacy and the guaranteesas to privacy enshrined in the Constitution of the United States.The United States Supreme Court and other United States courts haveupheld the right of privacy of married couples against legislationwhich sought to control sexual activities within marriage, includingsodomy.However, these courts have refused to extend theconstitutional guarantee of privacy which is available to marriedcouples to homosexual activities or to heterosexual sodomy outsidemarriage.The effect of this is that the public policy upholdsas virtually absolute privacy within marriage and privacy of sexualactivity within the marriage.
It is a valid approach to hold that, as the family is the fundamental unit group of society, the interests of marital privacy would normallybe superior to the State's interest in the pursuit of certain sexualactivities which would in themselves be regarded as immoral andcalculated to corrupt.Outside marriage there is no such compellinginterest of privacy which by its nature ought to prevail in respect ofsuch activities.
23.It is to be noted that Article 8 § 1 (art. 8-1) of the Convention speaks of "private and family life".If the ejusdemgeneris ruleis to be applied, then the provision should be interpreted as relatingto private life in that context as, for example, the right to raiseone's children according to one's own philosophical and religioustenets and generally to pursue without interference the activitieswhich are akin to those pursued in the privacy of family life andas such are in the course of ordinary human and fundamental rights.No such claim can be made for homosexual practices.
24.In my opinion there has been no breach of Article 8 (art. 8) of the Convention.
Article 14 (art. 14)
25.I agree with the judgment of the Court in respect of Article 14 (art. 14).