FOR EDUCATIONAL USE ONLY
Dudgeon v. United Kingdom
Series A, No. 45
Before the European Court of Human Rights
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.
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.
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.
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 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,
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.
[discussion of arguments against reform of
relevant laws in Northern Ireland]
In brief, there are two differing viewpoints. One, based on an interpretation of religious principles, holds that homosexual acts under any circumstances are immoral and that the criminal law should be used, by treating them as crimes, to enforce moral behaviour. The other view distinguishes between, on the one hand that area of private morality within which a homosexual individual can (as a matter of civil liberty) exercise his private right of conscience and, on the other hand, the area of public concern where the State ought and must use the law for the protection of society and in particular for the protection of children, those who are mentally retarded and others who are incapable of valid personal consent.
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 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.
I. THE ALLEGED BREACH OF ARTICLE 8
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, 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 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.
40. The Commission unanimously concluded that 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.
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 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.
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 '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.
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. However, their decision remains subject to review by the Court
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).
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). 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)
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 .
. 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 Northern Ireland. 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. 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. ..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.
60. .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 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.
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
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.
Court deems it necessary to examine the case under Article 14 as well.]
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) of the Convention by the respondent Government.
The Acts of 1861 and 1885 still in force in Northern Ireland prohibit gross indecency between males and buggery. These enactments in their unamended form are found to interfere with the right to respect for the private life of the applicant, admittedly a homosexual.
The decisive central issue in this case is therefore whether the provisions of the aforesaid laws criminalising homosexual relations were necessary in a democratic society for the protection of morals and for the protection of the rights and freedoms of others, such a necessity being a prerequisite for the validity of the enactment under Article 8 (2) of the Convention.
. I proceed to give my reasons as briefly as possible for finding no violation on the part of the respondent Government in this case.
1. Christian and Moslem religions are all united in the condemnation of 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 similar 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, [FN30] which was enacted in 1929, reads *172
Any person who
(a) has carnal knowledge of any person against the order of nature, or
(b) permits a male person to have carnal knowledge of him against the order of nature
is guilty of a felony and is liable to imprisonment for five years.
Under section 173 anyone who attempts to commit such an offence is liable to three years' imprisonment.
While on the one hand I may be thought biased for being a Cypriot judge, on the other hand I may be considered to be in a better position in forecasting the public outcry and the turmoil which would ensue if such laws are repealed or amended in favour of homosexuals either in Cyprus or in Northern Ireland. Both countries are religious-minded and adhere to moral standards which are centuries old.
3. While considering the respect due to the private life of a homosexual under Article 8 (1), we must not forget and must bear in mind that respect is also due to the people holding the opposite view, especially in a country populated by a great majority of such people who are completely against unnatural immoral practices. Surely the majority in a democratic society are also entitled under Articles 8, 9 and 10 of the Convention and Article 2 of Protocol No. 1 to respect for their religious and moral beliefs and entitled to teach and bring up their children consistently with their own religious and philosophical convictions.
A democratic society is governed by the rule of the majority. It seems to me somewhat odd and perplexing, in considering the necessity of respect for one's private life, to underestimate the necessity of keeping a law in force for the protection of morals held in high esteem by the majority of people.
A change of the law so as to legalise homosexual activities in private by adults is very likely to cause many disturbances in the country in question. The respondent Government were justified in finding it necessary to keep the relevant Acts on the statute book for the protection of morals as well as for the preservation of public peace.
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 his tendencies are curable or incurable. Neither of these arguments has been put forward or contested. Had the applicant done so, then his domestic remedies ought to have been exhausted. In fact he has not been prosecuted for any offence .
Much has been said about the scarcity of cases coming to court under the prohibitive provisions of the Acts we are discussing. It was contended that this fact indicates the indifference of the people in Northern Ireland to the non-prosecution of homosexual offences committed. The same fact, however, might indicate the rarity of homosexual offences having been perpetrated and also the unnecessariness and the inexpediency of changing the law.