CASE LAW: Sexuality Rights – Dudgeon v United Kingdom

*149 Dudgeon v. United Kingdom
Series A, No. 45

Before the European Court of Human Rights (ECHR)
(The President, Judge Ryssdal; Judges Zekia, Cremona, Thór Vilhjálmsson, Ganshof van der Meersch, Bindschedler-Robert, Evrigenis, Lagergren, Liesch, Gölcüklü, Matscher, Pinheiro Farinha, GarcÍa de EnterrÍa, Pettiti, Walsh, Sir Vincent Evans, Macdonald, Russo and Bernhardt.)

23 September 1981

In Northern Ireland, the commission of an act of buggery and an attempt to commit buggery are offences under sections 61 and 62 of the Offences against the Person Act 1861. An act of gross indecency committed by a man with another man is an offence under section 11 of the Criminal Law Amendment Act 1885 and an attempt to commit an act of gross indecency is an offence at common law. Unlike the position in the other constituent parts of the United Kingdom, no legislation has been enacted in relation to Northern Ireland to provide (subject to exceptions in relation to persons who are especially vulnerable, e.g. persons under 21 and mental patients) that private acts of buggery and gross indecency between consenting males over 21 should not be criminal offences.

Between 1972 and 1980 no private prosecutions were brought for homosexual offences in Northern Ireland and, so far as was known, no other prosecutions were instituted in respect of the commission of acts which would not have been offences had they been committed in England or Wales. There had, however, in Northern Ireland (unlike in Scotland before the law there was amended) been no stated policy not to prosecute in respect of such acts. On the question whether the existence of criminal offences relating to homosexual conduct in private between consenting males over the age of 21, or some lesser age, constituted an interference with a person’s right to respect for his private life in contravention of Article 8 of the European Convention on Human Rights.

Held, by 15 votes to four, that there had been a breach of Article 8 in regard to the existing law in relation to men aged over 21; but that it was for countries to fix for themselves, in the first instance, any appropriate extension of the age of consent in relation to such conduct.

1. Right to respect for private life (Art. 8). Homosexual behaviour. Private conduct between consenting males aged 21 liable to prosecution.

The criminal law in Northern Ireland which prohibits homosexual conduct, so far as it relates to acts committed in private by consenting males over the age of 21, constitutes an interference with the respect for private life guaranteed by Article 8 (1). Although no proceedings in such cases have been brought in recent years, it could *150 not be said that the law was a dead letter in that it was still enforced in relation to acts committed with males under that age, there had been no stated policy with regard to non-enforcement and there remained the possibility of private prosecutions for such offences [41].

2. Necessary in a democratic society (Art. 8). Pressing social need. Principle of proportionality. Homosexual behaviour. Private conduct between consenting males aged 21 liable to prosecution.

Although some degree of regulation of all forms of sexual conduct by the criminal law can be justified as necessary in a democratic society and this control may properly extend to some consensual acts committed in private, the failure to prosecute homosexual conduct in private between consenting males over the age of 21 makes it impossible to maintain that there is a pressing social need for the prohibitions. Further, as any justifications for the prohibitions are outweighed by the effects which they can have on the life of homosexuals and as any shock or disturbance caused to others by the commission of homosexual acts in private cannot warrant the application of penal sanctions when only consenting adults are involved, the prohibitions are disproportionate to the aims which are sought to be achieved. Accordingly, it could not be said that prohibiting homosexual conduct in private between consenting males over the age of 21 was justifiable as being necessary in a democratic society [49, 60, 61].

Case referred to the Court by the European Commission of Human Rights arising out of an application against the United Kingdom of Great Britain and Northern Ireland lodged with the Commission on 22 May 1976 under Article 25 of the Convention by a United Kingdom citizen, Mr. Jeffrey Dudgeon.

The Delegates, Lord Gifford and Messrs. Kerr and Bratza addressed the Court.
TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE

The following cases are referred to in the judgments:
1. Airey v. Ireland (1979), Series A, No. 32; 2 E.H.R.R. 305.
2. Deweer v. Belgium (1980), Series A, No. 35; 2 E.H.R.R. 439.
3. Dudgeon v. United Kingdom (1980), Application No. 7525/76, 3 E.H.R.R. 40.
4. Handyside v. United Kingdom (1976), Series A, No. 24; 1 E.H.R.R. 737.
5. Ireland v. United Kingdom (1978), Series A, No. 25; 2 E.H.R.R. 25.
6. Marckx v. Belgium (1979), Series A, No. 31; 2 E.H.R.R. 330.
7. The Sunday Times v. United Kingdom (1979), Series A, No. 30; 2 E.H.R.R. 245.
8. Tyrer v. United Kingdom (1978), Series A, No. 26; 2 E.H.R.R. 1.
9. Young, James and Webster v. United Kingdom (1981), Series A, No. 44; 4 E.H.R.R. 38.

Representation
Mrs. A. Glover, Legal Adviser, Foreign and Commonwealth Office (Agent); N. Bratza and B. Kerr, Barristers (Counsel); and R. Tomlinson, Home Office, D. Chesterton, Northern Ireland Office, and N. Bridges, Northern Ireland Office (Advisers), for the Government.
J. Fawcett and G. Tenekides (Delegates), assisted by Lord Gifford and T. Munyard, Barristers, and P. Crane, Solicitor, for the Commission.

The Facts [FN1]

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 which have the effect of making certain homosexual acts between consenting adult 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 1861 Act’), the Criminal Law Amendment Act 1885 (‘the 1885 Act’) and the common law.

Under sections 61 and 62 of the 1861 Act, committing and attempting to commit buggery are made offences punishable with maximum sentences of life imprisonment and 10 years’ imprisonment, respectively. Buggery consists of sexual intercourse per anum by a man with a man or a woman, or per anum or per vaginam by a man or a woman with an animal.
By section 11 of the 1885 Act, it is an offence, punishable with a maximum of two years’ imprisonment, for any male person, in public or in private, to commit an act of ‘gross indecency’ with another male. ‘Gross indecency’ is not statutorily defined but relates to any act involving sexual indecency between male persons; according to the evidence submitted to the Wolfenden Committee (see para. 17, below), it usually takes the form of mutual masturbation, inter-crural contact or oral-genital contact. At common law, an attempt to commit an offence is itself an offence and, accordingly, it is an offence to attempt to commit an act proscribed by *152 section 11 of the 1885 Act. An attempt is in theory punishable in Northern Ireland by an unlimited sentence (but as to this, see para. 31, below).

Consent is no defence to any of these offences and no distinction regarding age is made in the text of the Acts.

An account of how the law is applied in practice is given below at paragraphs 29 to 31.

15. Acts of homosexuality between females are not, and have never been, criminal offences, although the offence of indecent assault may be committed by one woman on another under the age of 17.

As regards heterosexual relations, it is an offence, subject to certain exceptions, for a man to have sexual intercourse with a girl under the age of 17. Until 1950 the age of consent of a girl to sexual intercourse was 16 in both England and Wales and in Northern Ireland, but by legislation introduced in that year the age of consent was increased to 17 in Northern Ireland. While in relation to the corresponding offence in England and Wales it is a defence for a man under the age of 24 to show that he believed with reasonable cause the girl to be over 16 years of age, no such defence is available under Northern Ireland law.

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

16. The 1861 and 1885 Acts were passed by the United Kingdom Parliament. When enacted, they applied to England and Wales, to all Ireland, then unpartitioned and an integral part of the United Kingdom, and also, in the case of the 1885 Act, to Scotland.

(a) 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’), as amended by the Sexual Offences Act 1967 (‘the 1967 Act’).

The 1956 Act, an Act consolidating the existing statute law, made it an offence for any person to commit buggery with another person or an animal [FN2] and an offence for a man to commit an act of "gross indecency" with another man. [FN3]

The 1967 Act, which was introduced into Parliament as a Private Member’s Bill, was passed to give effect to the recommendations concerning homosexuality made in 1957 in the report of the Departmental Committee on Homosexual Offences and Prostitution established under the chairmanship of Sir John Wolfenden (the ‘Wolfenden Committee’ and ‘Wolfenden report’). The Wolfenden Committee regarded the function of the criminal law in this field as: *153
to preserve public order and decency, to protect the citizen from what is offensive or injurious, and to provide sufficient safeguards against exploitation and corruption of others, particularly those who are specially vulnerable because they are young, weak in body or mind, inexperienced, or in a state of special physical, official, or economic dependence,
but not—
to intervene in the private lives of citizens, or to seek to enforce any particular pattern of behaviour, further than is necessary to carry out the purposes we have outlined.

The Wolfenden Committee concluded that homosexual behaviour between consenting adults in private was part of the ‘realm of private morality and immorality which is, in brief and crude terms, not the law’s business’ and should no longer be criminal.

The 1967 Act qualified sections 12 and 13 of the 1956 Act by providing that, subject to certain exceptions concerning mental patients, members of the armed forces and merchant seamen, buggery and acts of gross indecency in private between consenting males aged 21 years or over should not be criminal offences. It remains a crime to commit a homosexual act, of the kind referred to in these sections, with a person aged less than 21 in any circumstances.

The age of majority for certain purposes, including capacity to marry without parental consent and to enter into contractual relations, was reduced from 21 to 18 by the Family Law Reform Act 1969. The voting age and the minimum age for jury service were likewise reduced to 18 by the Representation of the People Act 1969 and the Criminal Justice Act 1972, respectively.

In 1977, the House of Lords rejected a Bill aimed at reducing the age of consent for private homosexual acts to 18. Subsequently, in a report published in April 1981, a committee established by the Home Office, namely the Policy Advisory Committee on Sexual Offences, recommended that the minimum age for homosexual relations between males should be reduced to 18. A minority of five members favoured a reduction to 16.

(b) Scotland

18. When the applicant lodged his complaint in 1976, the relevant law applicable was substantially similar to that currently in force in Northern Ireland. Section 7 of the Sexual Offences (Scotland) Act 1976, a consolidating provision re-enacting section 11 of the 1885 Act, provided for the offence of gross indecency; the offence of sodomy existed at common law. However, successive Lord Advocates had stated in Parliament that their policy was not to prosecute in respect of acts which would not have been punishable if the 1967 Act had applied in Scotland. The Criminal Justice (Scotland) Act 1980 (‘the 1980 Act’) formally brought Scottish law into line with *154 that of England and Wales. As in the case of the 1967 Act, the change in the law originated in amendments introduced in Parliament by a Private Member.

C. Constitutional position of Northern Ireland

19. Under an Act of the United Kingdom Parliament, the Government of Ireland Act 1920, a separate Parliament for Northern Ireland was established with power to legislate on all matters devolved by that Act, including criminal and social law. An executive known as the Government of Northern Ireland was also established with Ministers responsible for the different areas of the devolved powers. By convention, during the life of the Northern Ireland Parliament (1921 to 1972) the United Kingdom Parliament rarely, if ever, legislated for Northern Ireland in respect of the devolved matters (in particular social matters) falling within the former Parliament’s legislative competence.

20. In March 1972, the Northern Ireland Parliament was prorogued and Northern Ireland was made subject to ‘direct rule’ from Westminster. [FN4] Since that date, except for a period of five months in 1974 when certain legislative and executive powers were devolved to a Northern Ireland Assembly and Executive, legislation for Northern Ireland in all fields has been the responsibility of the United Kingdom Parliament. There are 12 members of the United Kingdom House of Commons, out of a total of 635, who represent constituencies in Northern Ireland.

Under the provisions currently in force, power is conferred on Her Majesty to legislate for Northern Ireland by Order in Council. Save where there are reasons of urgency, no recommendation may be made to Her Majesty to make an Order in Council under these provisions unless a draft of the Order has been approved by each House of Parliament. It is the responsibility of the Government to prepare a draft Order and to lay it before Parliament for approval. A draft can only be approved or rejected in toto by Parliament, but not amended. The function of the Queen in Council in making an Order once it has been approved by Parliament is purely formal. In practice, much legislation for Northern Ireland is effected in this form rather than by means of an Act of Parliament.

D. Proposals for reform in Northern Ireland

21. No measures comparable to the 1967 Act were ever introduced into the Northern Ireland Parliament either by the Government of Northern Ireland or by any Private Member.

22. In July 1976, following the failure of the Northern Ireland Constitutional Convention to work out a satisfactory form of *155 devolved government for Northern Ireland, the then Secretary of State for Northern Ireland announced in Parliament that the United Kingdom Government would thenceforth be looking closely at the need for legislation in fields which it had previously been thought appropriate to leave to a future devolved government, in particular with a view to bringing Northern Ireland law more closely into harmony with laws in other parts of the country. He cited homosexuality and divorce as possible areas for action. However, recognising the difficulties about such subjects in Northern Ireland, he indicated that he would welcome the views of the local people, including those of the Standing Advisory Commission on Human Rights (‘the Advisory Commission’) and of Members of Parliament representing Northern Ireland constituencies.

23. The Advisory Commission, which is an independent statutory body, was accordingly invited to consider the matter. As regards homosexual offences, the Advisory Commission received evidence from a number of persons and organisations, religious and secular. No representations were made by the Roman Catholic Church in Northern Ireland or by any of the 12 Northern Ireland Members of the United Kingdom House of Commons.

The Advisory Commission published its report in April 1977. The Advisory Commission concluded that most people did not regard it as satisfactory to retain the existing differences in the law with regard to homosexuality and that few only would be strongly opposed to changes bringing Northern Ireland law into conformity with that in England and Wales. On the other hand, it did not consider that there would be support for legislation which went further, in particular by lowering the age of consent. Its recommendations were that the law of Northern Ireland should be brought into line with the 1967 Act, but that future amendments to the 1967 Act should not automatically apply to Northern Ireland.

24. On 27 July 1978, the Government published a proposal for a draft Homosexual Offences (Northern Ireland) Order 1978, the effect of which would have been to bring Northern Ireland law on the matter broadly into line with that of England and Wales. In particular, homosexual acts in private between two consenting male adults over the age of 21 would no longer have been punishable.

In a foreword to the proposal, the responsible Minister stated that ‘the Government has always recognised that homosexuality is an issue about which some people in Northern Ireland hold strong conscientious or religious opinions’. He summarised the main arguments for and against reform as follows:

In brief, there are two differing viewpoints. One, based on an interpretation of religious principles, holds that homosexual acts under any circumstances are immoral and that the criminal law should be used, by treating them as crimes, to enforce moral behaviour. The other view distinguishes between, on the one hand that area *156 of private morality within which a homosexual individual can (as a matter of civil liberty) exercise his private right of conscience and, on the other hand, the area of public concern where the State ought and must use the law for the protection of society and in particular for the protection of children, those who are mentally retarded and others who are incapable of valid personal consent.

I have during my discussions with religious and other groups heard both these viewpoints expressed with sincerity and I understand the convictions that underlie both points of view. There are in addition other considerations which must be taken into account. For example it has been pointed out that the present law is difficult to enforce, that fear of exposure can make a homosexual particularly vulnerable to blackmail and that this fear of exposure can cause unhappiness not only for the homosexual himself but also for his family and friends.

While recognising these differing viewpoints I believe we should not overlook the common ground. Most people will agree that the young must be given special protection; and most people will also agree that the law should be capable of being equitably enforced, Moreover those who are against reform have compassion and respect for individual rights just as much as those in favour of reform have concern for the welfare of society. For the individuals in society, as for Government, there is thus a difficult balance of judgment to be arrived at.

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

25. The numerous comments received by the Government in response to their invitation, during and after the formal period of consultation, revealed a substantial division of opinion. On a simple count of heads, there was a large majority of individuals and institutions against the proposal for a draft Order.

Those opposed to reform included a number of senior judges, district councils, Orange Lodges and other organisations, generally of a religious character and in some cases engaged in youth activities. A petition to ‘Save Ulster from Sodomy’ organised by the Democratic Unionist Party led by the Rev. Ian Paisley, a member of the United Kingdom House of Commons, collected nearly 70,000 signatures. The strongest opposition came from certain religious groups. In particular, the Roman Catholic bishops saw the proposal as an invitation to Northern Ireland society to change radically its moral code in a manner liable to bring about more serious problems than anything attributable to the present law. The Roman Catholic bishops argued that such a change in the law would lead to a further decline in moral standards and to a climate of moral laxity which would endanger and put undesirable pressures on those most vulnerable, namely the young. Similarly, the Presbyterian Church in Ireland, whilst understanding the arguments for the change, made the point that the removal from the purview of the criminal law of private homosexual acts between consenting adult males might be taken by the public as an implicit licence if *157 not approval for such practices and as a change in public policy towards a further relaxation of moral standards.

The strongest support for change came from organisations representing homosexuals and social work agencies. They claimed that the existing law was unnecessary and that it created hardship and distress for a substantial minority of persons affected by it. It was urged that the sphere of morality should be kept distinct from that of the criminal law and that considerations of the personal freedom of the individual should in such matters be paramount. For its part, the Standing Committee of the General Synod of the Church of Ireland accepted that homosexual acts in private between consenting adults aged 21 and over should be removed from the realm of criminal offence, but in amplification commented that this did not mean that the Church considered homosexuality to be an acceptable norm.

Press reports indicated that most of the political formations had expressed favourable views. However, none of the 12 Northern Ireland Members of Parliament publicly supported the proposed reform and several of them openly opposed it. An opinion poll conducted in Northern Ireland in January 1978 indicated that the people interviewed were evenly divided on the global question of the desirability of reforming the law on divorce and homosexuality so as to bring it into line with that of England and Wales.

26. On 2 July 1979, the then Secretary of State for Northern Ireland, in announcing to Parliament that the Government did not intend to pursue the proposed reform, stated:

Consultation showed that strong views are held in Northern Ireland, both for and against change in the existing law. Although it is not possible to say with certainty what is the feeling of the majority of people in the province, it is clear that a substantial body of opinion there (embracing a wide range of religious as well as political opinion) is opposed to the proposed change. ... [T]he Government have [also] taken into account ... the fact that legislation on an issue such as the one dealt with in the draft order has traditionally been a matter for the initiative of a Private Member rather than for Government. At present, therefore, the Government propose to take no further action ..., but we would be prepared to reconsider the matter if there were any developments in the future which were relevant.

27. In its annual report for 1979-80, the Advisory Commission reiterated its view that the law should be reformed. It believed that there was a danger that the volume of opposition might be exaggerated.
28. Since the Northern Ireland Parliament was prorogued in 1972 (see para. 20, above), there has been no initiative of any kind for legislation to amend the 1861 and 1885 Acts from any of the mainstream political organisations or movements in Northern Ireland.

*158 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 to the power of the Director of Public Prosecutions to assume the conduct of the proceedings and, if he thinks fit, discontinue them. The evidence as to prosecutions for homosexual offences between 1972 and 1981 reveals that none has been brought by a private person during that time.

30. During the period from January 1972 to October 1980 there were 62 prosecutions for homosexual offences in Northern Ireland. The large majority of these cases involved minors, that is persons under 18; a few involved persons aged 18 to 21 or mental patients or prisoners. So far as the Government are aware from investigation of the records, no one was prosecuted in Northern Ireland during the period in question for an act which would clearly not have been an offence if committed in England or Wales. There is, however, no stated policy not to prosecute in respect of such acts. As was explained to the Court by the Government, instructions operative within the office of the Director of Public Prosecutions reserve the decision on whether to prosecute in each individual case to the Director personally, in consultation with the Attorney-General, the sole criterion being whether, on all the facts and circumstances of that case, a prosecution would be in the public interest.

31. According to the Government, the maximum sentences prescribed by the 1861 and 1885 Acts are appropriate only for the most grave instances of the relevant offence and in practice no court would ever contemplate imposing the maximum sentence for offences committed between consenting parties, whether in private or in public. Furthermore, although liable to an unlimited sentence, a man convicted of an attempt to commit gross indecency would in practice never receive a sentence greater than that appropriate if the offence had been completed; in general, the sentence would be significantly less. In all cases of homosexual offences the actual penalty imposed will depend on the particular circumstances.

F. The personal circumstances of the applicant

32. The applicant has, on his own evidence, been consciously homosexual from the age of 14. For some time he and others have been conducting a campaign aimed at bringing the law in Northern Ireland into line with that in force in England and Wales and, if possible, achieving a minimum age of consent lower than 21 years.

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 the search of the house a quantity of cannabis was found which subsequently led to another person being charged with drug offences. Personal papers, including correspondence and diaries, belonging to the applicant in which were described homosexual *159 activities were also found and seized. As a result, he was asked to go to a police station where for about four-and-a-half hours he was questioned, on the basis of these papers, about his sexual life. The police investigation file was sent to the Director of Public Prosecutions. It was considered with a view to instituting proceedings for the offence of gross indecency between males. The Director, in consultation with the Attorney-General, decided that it would not be in the public interest for proceedings to be brought. Mr. Dudgeon was so informed in February 1977 and his papers, with annotations marked over them, were returned to him.

Proceedings before the Commission

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 conduct and the police investigation in January 1976 constituted an unjustified interference with his right to respect for his private life, in breach of Article 8 of the Convention;
—he had suffered discrimination, within the meaning of Article 14 of the Convention, on grounds of sex, sexuality and residence.

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 Northern Ireland prohibiting homosexual acts between males (or attempts at such acts), but inadmissible as being manifestly ill-founded his complaints concerning the existence in Northern Ireland of certain common law offences.

In its Report, [FN5] the Commission expressed the opinion that:
—the legal prohibition of private consensual homosexual acts involving male persons under 21 years of age was not in breach of the applicant’s rights either under Article 8 (eight votes to two) or under Article 14 read in conjunction with Article 8 (eight votes to one, with one abstention);
—the legal prohibition of such acts between male persons over 21 years of age breached the applicant’s right to respect for his private life under Article 8 (nine votes to one);
—it was not necessary to examine the question whether the last-mentioned prohibition also violated Article 14 read in conjunction with Article 8 (nine votes to one).

The report contains one separate opinion.

*160 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 the Court:

(1) With regard to Article 8

To decide and declare that the present laws in Northern Ireland relating to homosexual acts do not give rise to a breach of Article 8 of the Convention, in that the laws are necessary in a democratic society for the protection of morals and for the protection of the rights of others for the purposes of paragraph 2 of Article 8.

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

(i) To decide and declare that the facts disclose no breach of Article 14, read in conjunction with Article 8 of the Convention;
alternatively, if and in so far as a breach of Article 8 of the Convention is found
(ii) To decide and declare that it is unnecessary to examine the question whether the laws in Northern Ireland relating to homosexual acts give rise to a separate breach of Article 14, read in conjunction with Article 8 of the Convention.

JUDGMENT [FN6]

I. THE ALLEGED BREACH OF ARTICLE 8

A. Introduction

37. The applicant complained that under the law in force in Northern Ireland he is liable to criminal prosecution on account of his homosexual conduct and that he has experienced fear, suffering and psychological distress directly caused by the very existence of the laws in question, including fear of harassment and blackmail. He further complained that, following the search of his house in January 1976, he was questioned by the police about certain homosexual activities and that personal papers belonging to him were seized during the search and not returned until more than a year later.

He alleged that, in breach of Article 8 of the Convention, he has thereby suffered, and continues to suffer, an unjustified interference with his right to respect for his private life.

38. Article 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 law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, *161 for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

39. Although it is not homosexuality itself which is prohibited but the particular acts of gross indecency between males and buggery (see para. 14, above), there can be no doubt but that male homosexual practices whose prohibition is the subject of the applicant’s complaints come within the scope of the offences punishable under the impugned legislation; it is on that basis that the case has been argued by the Government, the applicant and the Commission. Furthermore, the offences are committed whether the act takes place in public or in private, whatever the age or relationship of the participants involved, and whether or not the participants are consenting. It is evident from Mr. Dudgeon’s submissions, however, that his complaint was in essence directed against the fact that homosexual acts which he might commit in private with other males capable of valid consent are criminal offences under the law of Northern Ireland.

B. The existence of an interference with an Article 8 right

40. The Commission saw no reason to doubt the general truth of the applicant’s allegations concerning the fear and distress that he has suffered in consequence of the existence of the laws in question. The Commission unanimously concluded that [FN7]:
the legislation complained of interferes with the applicant’s right to respect for his private life guaranteed by Article 8 (1), in so far as it prohibits homosexual acts committed in private between consenting males.

The Government, without conceding the point, did not dispute that Mr. Dudgeon is directly affected by the laws and entitled to claim to be a ‘victim’ thereof under Article 25 of the Convention. Nor did the Government contest the Commission’s above-quoted conclusion.

41. The Court sees no reason to differ from the views of the Commission: the maintenance in force of the impugned legislation constitutes a continuing interference with the applicant’s right to respect for his private life (which includes his sexual life) within the meaning of Article 8 (1). In the personal circumstances of the applicant, the very existence of this legislation continuously and directly affects his private life [FN8]: either he respects the law and refrains from engaging (even in private with consenting male partners) in prohibited sexual acts to which he is disposed by reason of his homosexual tendencies, or he commits such acts and thereby becomes liable to criminal prosecution.

It cannot be said that the law in question is a dead letter in this sphere. It was, and still is, applied so as to prosecute persons with regard to private consensual homosexual acts involving males under 21 years of age (see para. 30, above). Although no proceedings seem to have been brought in recent years with regard to such acts involving only males over 21 years of age, apart from mental patients, there is no stated policy on the part of the authorities not to enforce the law in this respect (ibid.). Furthermore, apart from prosecution by the Director of Public Prosecutions, there always remains the possibility of a private prosecution (see para. 29, above).

Moreover, the police investigation in January 1976 was, in relation to the legislation in question, a specific measure of implementation (albeit short of actual prosecution) which directly affected the applicant in the enjoyment of his right to respect for his private life (see para. 33, above). As such, it showed that the threat hanging over him was real.

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

42. In the Government’s submission, the law in Northern Ireland relating to homosexual acts does not give rise to a breach of Article 8, in that it is justified by the terms of Article 8 (2). This contention was disputed by both the applicant and the Commission.

43. An interference with the exercise of an Article 8 right will not be compatible with Article 8 (2) unless it is ‘in accordance with the law’, has an aim or aims that is or are legitimate under that paragraph and is ‘necessary in a democratic society’ for the aforesaid aim or aims. [FN9]

44. It has not been contested that the first of these three conditions was met. As the Commission pointed out in paragraph 99 of its Report, [FN10] the interference is plainly ‘in accordance with the law’ since it results from the existence of certain provisions in the 1861 and 1885 Acts and the common law (see para. 14, above).

45. It next falls to be determined whether the interference is aimed at ‘the protection of ... morals’ or ‘the protection of the rights and freedoms of others’, the two purposes relied on by the Government.

46. The 1861 and 1885 Acts were passed in order to enforce the then prevailing conception of sexual morality. Originally they applied to England and Wales, to all Ireland, then unpartitioned, and also, in the case of the 1885 Act, to Scotland (see para. 16, above). In recent years the scope of the legislation has been restricted in England and Wales (with the 1967 Act) and subsequently in Scotland (with the 1980 Act): with certain exceptions it *163 is no longer a criminal offence for two consenting males over 21 years of age to commit homosexual acts in private (see paras. 17 and 18, above). In Northern Ireland, in contrast, the law has remained unchanged. The decision announced in July 1979 to take no further action in relation to the proposal to amend the existing law was, the Court accepts, prompted by what the United Kingdom Government judged to be the strength of feeling in Northern Ireland against the proposed change, and in particular the strength of the view that it would be seriously damaging to the moral fabric of Northern Irish society (see paras. 25 and 26, above). This being so, the general aim pursued by the legislation remains the protection of morals in the sense of moral standards obtaining in Northern Ireland.

47. Both the Commission and the Government took the view that, in so far as the legislation seeks to safeguard young persons from undesirable and harmful pressures and attentions, it is also aimed at ‘the protection of the rights and freedoms of others’. The Court recognises that one of the purposes of the legislation is to afford safeguards for vulnerable members of society, such as the young, against the consequences of homosexual practices. However, it is somewhat artificial in this context to draw a rigid distinction between ‘ protection of the rights and freedoms of others’ and ‘protection of ... morals’. The latter may imply safeguarding the moral ethos or moral standards of a society as a whole, [FN11] but may also, as the Government pointed out, cover protection of the moral interests and welfare of a particular section of society, for example schoolchildren. [FN12] Thus, ‘protection of the rights and freedoms of others’, when meaning the safeguarding of the moral interests and welfare of certain individuals or classes of individuals who are in need of special protection for reasons such as lack of maturity, mental disability or state of dependence, amounts to one aspect of ‘protection of ... morals’. [FN13] The Court will therefore take account of the two aims on this basis.

48. As the Commission rightly observed in its Report, [FN14] the cardinal issue arising under Article 8 in this case is to what extent, if at all, the maintenance in force of the legislation is ‘necessary in a democratic society’ for these aims.

49. There can be no denial that some degree of regulation of male homosexual conduct, as indeed of other forms of sexual conduct, by means of the criminal law can be justified as ‘necessary in a democratic society’. The overall function served by the criminal law in this field is, in the words of the Wolfenden report (see para. *164 17, above), ‘to preserve public order and decency [and] to protect the citizen from what is offensive or injurious’. Furthermore, this necessity for some degree of control may even extend to consensual acts committed in private, notably where there is call (to quote the Wolfenden report once more) to provide sufficient safeguards against exploitation and corruption of others, particularly those who are specially vulnerable because they are young, weak in body or mind, inexperienced, or in a state of special physical, official or economic dependence.

In practice there is legislation on the matter in all the member States of the Council of Europe, but what distinguishes the law in Northern Ireland from that existing in the great majority of the member-States is that it prohibits generally gross indecency between males and buggery whatever the circumstances. It being accepted that some form of legislation is ‘necessary’ to protect particular sections of society as well as the moral ethos of society as a whole, the question in the present case is whether the contested provisions of the law of Northern Ireland and their enforcement remain within the bounds of what, in a democratic society, may be regarded as necessary in order to accomplish those aims.

50. A number of principles relevant to the assessment of the ‘necessity’, ‘in a democratic society’, of a measure taken in furtherance of an aim that is legitimate under the Convention have been stated by the Court in previous judgments.

51. First, ‘necessary’ in this context does not have the flexibility of such expressions as ‘useful’, ‘reasonable’, or ‘desirable’, but implies the existence of a ‘pressing social need’ for the interference in question. [FN15]

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. [FN16] However, their decision remains subject to review by the Court. [FN17]

As was illustrated by The Sunday Times judgment, [FN18] the scope of the margin of appreciation is not identical in respect of each of the aims justifying restrictions on a right. [FN19] The Government inferred from the Handyside judgment [FN20] that the margin of appreciation will be more extensive where the protection of morals is in issue. It is an indisputable fact, as the Court stated in the Handyside judgment, that: [FN21] ‘the view taken ... of the requirements of morals varies from time to time and from place to place, especially in our era,’ and that

By reason of their direct and continuous contact with the vital forces *165 of their countries, State authorities are in principle in a better position than the international judge to give an opinion on the exact content of those requirements.

However, not only the nature of the aim of the restriction but also the nature of the activities involved will affect the scope of the margin of appreciation. The present case concerns a most intimate aspect of private life. Accordingly, there must exist particularly serious reasons before interferences on the part of the public authorities can be legitimate for the purposes of Article 8 (2).

53. Finally, in Article 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 democratic society’ (two hallmarks of which are tolerance and broadmindedness) unless, amongst other things, it is proportionate to the legitimate aim pursued. [FN22]

54. The Court’s task is to determine on the basis of the afore-stated principles whether the reasons purporting to justify the ‘interference’ in question are relevant and sufficient under Article 8 (2). [FN23] The Court is not concerned with making any value-judgment as to the morality of homosexual relations between adult males.

55. It is convenient to begin by examining the reasons set out by the Government in their arguments contesting the Commission’s conclusion that the penal prohibition of private consensual homosexual acts involving male persons over 21 years of age is not justified under Article 8 (2) (see para. 35, above).

56. In the first place, the Government drew attention to what they described as profound differences of attitude and public opinion between Northern Ireland and Great Britain in relation to questions of morality. Northern Ireland society was said to be more conservative and to place greater emphasis on religious factors, as was illustrated by more restrictive laws even in the field of heterosexual conduct (see para. 15, above).

Although the applicant qualified this account of the facts as grossly exaggerated, the Court acknowledges that such differences do exist to a certain extent and are a relevant factor. As the Government and the Commission both emphasised, in assessing the requirements of the protection of morals in Northern Ireland, the contested measures must be seen in the context of Northern Ireland society.

The fact that similar measures are not considered necessary in other parts of the United Kingdom or in other member-States of the Council of Europe does not mean that they cannot be necessary in *166 Northern Ireland. [FN24] Where there are disparate cultural communities residing within the same State, it may well be that different requirements, both moral and social, will face the governing authorities.

57. As the Government correctly submitted, it follows that the moral climate in Northern Ireland in sexual matters, in particular as evidenced by the opposition to the proposed legislative change, is one of the matters which the national authorities may legitimately take into account in exercising their discretion. There is, the Court accepts, a strong body of opposition stemming from a genuine and sincere conviction shared by a large number of responsible members of the Northern Ireland community that a change in the law would be seriously damaging to the moral fabric of society (see para. 25, above). This opposition reflects (as do in another way the recommendations made in 1977 by the Advisory Commission (see para. 23, above)) a view both of the requirements of morals in Northern Ireland and of the measures thought within the community to be necessary to preserve prevailing moral standards.

Whether this point of view be right or wrong, and although it may be out of line with current attitudes in other communities, its existence among an important sector of Northern Ireland society is certainly relevant for the purposes of Article 8 (2).

58. The Government argued that this conclusion is further strengthened by the special constitutional circumstances of Northern Ireland (described above at paras. 19 and 20). In the period between 1921 (when the Northern Ireland Parliament first met) and 1972 (when it last sat), legislation in the social field was regarded as a devolved matter within the exclusive domain of that Parliament. As a result of the introduction of ‘direct rule’ from Westminster, the United Kingdom Government, it was said, had a special responsibility to take full account of the wishes of the people of Northern Ireland before legislating on such matters.

In the present circumstances of direct rule, the need for caution and for sensitivity to public opinion in Northern Ireland is evident. However, the Court does not consider it conclusive in assessing the ‘necessity’, for the purposes of the Convention, of maintaining the impugned legislation that the decision was taken, not by the former Northern Ireland Government and Parliament, but by the United Kingdom authorities during what they hope to be an interim period of direct rule.

59. Without any doubt, faced with these various considerations, the United Kingdom Government acted carefully and in good faith; what is more, they made every effort to arrive at a balanced judgment between the differing viewpoints before reaching the conclusion that such a substantial body of opinion in Northern Ireland was *167 opposed to a change in the law that no further action should be taken (see, for example, paras. 24 and 26, above). Nevertheless, this cannot of itself be decisive as to the necessity for the interference with the applicant’s private life resulting from the measures being challenged. [FN25] Notwithstanding the margin of appreciation left to the national authorities, it is for the Court to make the final evaluation whether the reasons it has found to be relevant were sufficient in the circumstances, in particular whether the interference complained of was proportionate to the social need claimed for it (see para. 53, above).

60. The Convention right affected by the impugned legislation protects an essentially private manifestation of the human personality (see para. 52, third sub-para., above).

As compared with the era when that legislation was enacted, there is now a better understanding, and in consequence an increased tolerance, of homosexual behaviour to the extent that in the great majority of the member-States of the Council of Europe it is no longer considered to be necessary or appropriate to treat homosexual practices of the kind now in question as in themselves a matter to which the sanctions of the criminal law should be applied; the Court cannot overlook the marked changes which have occurred in this regard in the domestic law of the member-States. [FN26] In Northern Ireland itself, the authorities have refrained in recent years from enforcing the law in respect of private homosexual acts between consenting males over the age of 21 years capable of valid consent (see para. 30, above). No evidence has been adduced to show that this has been injurious to moral standards in Northern Ireland or that there has been any public demand for stricter enforcement of the law.

It cannot be maintained in these circumstances that there is a ‘pressing social need’ to make such acts criminal offences, there being no sufficient justification provided by the risk of harm to vulnerable sections of society requiring protection or by the effects on the public. On the issue of proportionality, the Court considers that such justifications as there are for retaining the law in force unamended are outweighed by the detrimental effects which the very existence of the legislative provisions in question can have on the life of a person of homosexual orientation like the applicant. Although members of the public who regard homosexuality as immoral may be shocked, offended or disturbed by the commission by others of private homosexual acts, this cannot on its own warrant the application of penal sanctions when it is consenting adults alone who are involved.

61. Accordingly, the reasons given by the Government, although *168 relevant, are not sufficient to justify the maintenance in force of the impugned legislation in so far as it has the general effect of criminalising private homosexual relations between adult males capable of valid consent. In particular, the moral attitudes towards male homosexuality in Northern Ireland and the concern that any relaxation in the law would tend to erode existing moral standards cannot, without more, warrant interfering with the applicant’s private life to such an extent. ‘Decriminalisation’ does not imply approval, and a fear that some sectors of the population might draw misguided conclusions in this respect from reform of the legislation does not afford a good ground for maintaining it in force with all its unjustifiable features.

To sum up, the restriction imposed on Mr. Dudgeon under Northern Ireland law, by reason of its breadth and absolute character, is, quite apart from the severity of the possible penalties provided for, disproportionate to the aims sought to be achieved.

62. In the opinion of the Commission, the interference complained of by the applicant can, in so far as he is prevented from having sexual relations with young males under 21 years of age, be justified as necessary for the protection of the rights of others. [FN27] This conclusion was accepted and adopted by the Government, but disputed by the applicant who submitted that the age of consent for male homosexual relations should be the same as that for heterosexual and female homosexual relations, that is, 17 years under current Northern Ireland law (see para. 15, above).

The Court has already acknowledged the legitimate necessity in a democratic society for some degree of control over homosexual conduct notably in order to provide safeguards against the exploitation and corruption of those who are specially vulnerable by reason, for example, of their youth (see para. 49, above). However, it falls in the first instance to the national authorities to decide on the appropriate safeguards of this kind required for the defence of morals in their society and, in particular, to fix the age under which young people should have the protection of the criminal law (see para. 52, above).

D. Conclusion

63. Mr. Dudgeon has suffered and continues to suffer an unjustified interference with his right to respect for his private life. There is accordingly a breach of Article 8.

II. THE ALLEGED BREACH OF ARTICLE 14 TAKEN IN CONJUNCTION WITH ARTICLE 8

64. Article 14 reads as follows:
The enjoyment of the rights and freedoms set forth in this Convention *169 shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

65. The applicant claimed to be a victim of discrimination in breach of Article 14 taken in conjunction with Article 8, in that he is subject under the criminal law complained of to greater interference with his private life than are male homosexuals in other parts of the United Kingdom and heterosexuals and female homosexuals in Northern Ireland itself. In particular, in his submission Article 14 requires that the age of consent should be the same for all forms of sexual relations.

66. When dealing with the issues under Article 14, the Commission and likewise the Government distinguished between male homosexual acts involving those under and those over 21 years of age.

The Court has already held in relation to Article 8 that it falls in the first instance to the national authorities to fix the age under which young people should have the protection of the criminal law (see para. 62, above). The current law in Northern Ireland is silent in this respect as regards the male homosexual acts which it prohibits. It is only once this age has been fixed that an issue under Article 14 might arise; it is not for the Court to pronounce 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 and a separate breach has been found of the substantive Article, it is not generally necessary for the Court also to examine the case under Article 14, though the position is otherwise if a clear inequality of treatment in the enjoyment of the right in question is a fundamental aspect of the case. [FN28]

68. This latter condition is not fulfilled as regards the alleged discrimination resulting from the existence of different laws concerning male homosexual acts in various parts of the United Kingdom (see paras. 14, 17 and 18, above). Moreover, Mr. Dudgeon himself conceded that, if the Court were to find a breach of Article 8, then this particular question would cease to have the same importance.

69. According to the applicant, the essential aspect of his complaint under Article 14 is that in Northern Ireland male homosexual acts, in contrast to heterosexual and female homosexual acts, are the object of criminal sanctions even when committed in private between consenting adults.

The central issue in the present case does indeed reside in the existence in Northern Ireland of legislation which makes certain *170 homosexual acts punishable under the criminal law in all circumstances. Nevertheless, this aspect of the applicant’s complaint under Article 14 amounts in effect to the same complaint, albeit seen from a different angle, that the Court has already considered in relation to Article 8; there is no call to rule on the merits of a particular issue which is part of and absorbed by a wider issue. [FN29] Once it has been held that the restriction on the applicant’s right to respect for his private sexual life gives rise to a breach of Article 8 by reason of its breadth and absolute character (see para. 61 in fine, above), there is no useful legal purpose to be served in determining whether he has in addition suffered discrimination as compared with other persons who are subject to lesser limitations on the same right. This being so, it cannot be said that a clear inequality of treatment remains a fundamental aspect of the case.

70. The Court accordingly does not deem it necessary to examine the case under Article 14 as well.

III. THE APPLICATION OF ARTICLE 50

71. Counsel for the applicant stated that, should the Court find the Convention to have been violated, his client would seek just satisfaction under Article 50 in respect of three matters: first, the distress, suffering and anxiety resulting from the police investigation in January 1976; secondly, the general fear and distress suffered by Mr. Dudgeon since he was 17 years of age; and finally, legal and other expenses. Counsel put forward figures of £ 5,000 under the first head, £10,000 under the second and £5,000 under 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 the Rules of Court, this question is not ready for decision and must be reserved; in the circumstances of the case, the Court considers that the matter should be referred back to the Chamber in accordance with Rule 50 (4) of the Rules of Court.
For these reasons, THE COURT holds:

1. by 15 votes to four, that there is a breach of Article 8 of the Convention;
2. by 14 votes to five, that it is not necessary also to examine the case under Article 14 taken in conjunction with Article 8;
3. unanimously, that the question of the application of Article 50 is not ready for decision; and (a) accordingly reserves the whole of the said question; (b) refers the said question back to the Chamber under rule 50 (4) of the Rules of Court. *171

DECISION OF 22 OCTOBER 1981 ON ARTICLE 50 (Judge Ryssdal, President; Judges Vilhjàlmsson, Evrigenis, Lagergren, Liesch, Pinheiro Farinha and Evans.)

The Chamber of the Court:
Invites the European Commission of Human Rights to submit to the Chamber, within two months from the pronouncement of this decision, the Commission’s written observations on the question of the application of Article 50, including notification of any friendly settlement at which the Government of the United Kingdom of Great Britain and Northern Ireland and the applicant may have arrived;
Reserves the further procedure and delegates to the President of the Chamber power to fix the same if need be.

DISSENTING AND PARTIALLY DISSENTING OPINIONS OMITTED

(1982) 4 E.H.R.R. 149

Notes:
FN1. Paragraphs 1-12, dealing with procedural matters, have been omitted, but the original numbering of the paragraphs has been retained.—Ed.
FN2. s.12.
FN3. s.13.
FN4. See the judgment in Ireland v. United Kingdom (1978), 2 E.H.R.R. 25, 31, 40, paras. 14, 49.
FN5. For the report adopted under Art. 31, see 3 E.H.R.R. 40.
FN6. Drawn up in English and French, the former text being authentic.
FN7. See 3 E.H.R.R., at p. 54, para. 97; see also, at p. 53, para. 94.
FN8. See, mutatis mutandis, Marckx v. Belgium (1979), 2 E.H.R.R. 330 *162 , 340, para. 27.
FN9. See, mutatis mutandis, Young, James and Webster v. United Kingdom (1981), 4 E.H.R.R. 38, 56, para. 59.
FN10. See 3 E.H.R.R. at p. 54.
FN11. See the Commission’s report, 3 E.H.R.R. at p. 56, para. 108.
FN12. See Handyside v. United Kingdom (1976), 1 E.H.R.R. 737, 755, para. 52 in fine, in relation to Art. 10 (2).
FN13. See, mutatis mutandis, The Sunday Times v. United Kingdom (1979), 2 E.H.R.R. 245, 274, para. 56.
FN14. See 3 E.H.R.R. at p. 54, para. 101.
FN15. See Handyside v. United Kingdom (1976), 1 E.H.R.R. 737, 753, para. 48.
FN16. See Handyside v. United Kingdom (1976), 1 E.H.R.R. 737, 753, para. 48.
FN17. Ibid., at p. 754, para. 49.
FN18. See 2 E.H.R.R. 245.
FN19. Ibid., at p. 275, para. 59.
FN20. See 1 E.H.R.R. 737.
FN21. Ibid., at p. 753, para. 48.
FN22. See Handyside v. United Kingdom (1976), 1 E.H.R.R. 737, 754, para. 49; and Young, James and Webster v. United Kingdom (1981), 4 E.H.R.R. 38, 56, para. 63.
FN23. See Handyside v. United Kingdom, loc. cit. at p. 755, para. 50.
FN24. See, mutatis mutandis, The Sunday Times v. United Kingdom (1979), 2 E.H.R.R. 245, 277, para. 61; cf. also Handyside v. United Kingdom (1976), 1 E.H.R.R. 737, 757, 759, paras. 54, 57.
FN25. FN25 See The Sunday Times v. United Kingdom, loc. cit. at pp. 275, 276, para. 59.
FN26. See, mutatis mutandis, Marckx v. Belgium(1979), 2 E.H.R.R. 330, 346, 347, para. 41; and also Tyrer v. United Kingdom (1978), 2 E.H.R.R. 1, 10, para. 31.
FN27. See 3 E.H.R.R. 40 and especially, at pp. 55, 59, paras. 105, 116.
FN28. See Airey v. Ireland (1979), 2 E.H.R.R. 305, 318, para. 30.
FN29. See Deweer v. Belgium (1980), 2 E.H.R.R. 439, 465, 466, para. 56 in fine.

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