Dudgeon v. United Kingdom

Application No. 7525/76
Download Judgment: English
Country: United Kingdom
Region: Europe
Year: 1980
Court: European Commission of Human Rights
Health Topics: Sexual and reproductive health
Human Rights: Freedom from discrimination, Right to liberty and security of person, Right to privacy
Tags: Buggery, Gay, Homosexual, Lesbian, LGBTI, Sexual orientation, Sodomy

Applicant, a gay man, brought a complaint before the Commission alleging that laws criminalizing male homosexual conduct in Northern Ireland constituted unjustified interference with his right to respect for his private life (Article 8 of the European Convention on Human Rights) as well as unjustifiable discrimination on sexual grounds and residency grounds (Article 14).

Due to the unique constitutional position of Northern Ireland within the United Kingdom, several matters related to criminal law had been devolved to the Northern Ireland Parliament, creating discrepancies in law and enforcement among different countries in the United Kingdom. With regard to male homosexual conduct, Northern Ireland had retained 19th-century laws criminalizing all forms of male homosexual conduct, punishable with prison time from two years to a life sentence depending on the offense (Female homosexual conduct was not criminalized.). In contrast, the law in England and Wales had been modified in 1967, decriminalizing private homosexual conduct between consenting males over the age of 21 years. In addition, while Scotland had retained similar criminal laws to Northern Ireland, successive Lord Advocates (chief public prosecutors in Scotland) had publicly stated a policy of not prosecuting these offenses, operating as if the 1967 law in England and Wales applied in Scotland as well. In Northern Ireland, the government had begun considering an amendment to the criminal code to bring it in line with the 1967 English and Welsh law, but there was a substantial division in popular opinion and no national-level lawmakers had publicly supported the cause.

The applicant, a gay man, argued that he had suffered direct effects from the legislation in two ways. First, he submitted that he had suffered long-term fear, suffering, and distress caused by the existence of the legislation, and that this psychological distress had led to direct economic loss by retarding his motivation and well-being. Second, in January 1976, the applicant was questioned by the police regarding alleged homosexual conduct and his papers were taken. The applicant submitted that the investigating officers had made insulting remarks during the questioning. His papers were returned in February 1977 and he was informed that he would not be prosecuted. The applicant brought forth this complaint under articles 8 and 14 of the European Convention on Human Rights, submitting that the laws constituted an unjustifiable violation of his right to private life, and that these laws incorporated unjustifiable discrimination on sexual grounds—as female homosexual conduct was not criminalized—and residency grounds, as he would not have been subject to prosecution in other parts of the United Kingdom.

The Commission held that the legislation in question unjustifiably interfered with the applicant’s right to respect for his private life. However, the Commission also concluded that the legal prohibition of private consensual homosexual conduct involving males under the age of 21 years was not in contravention of the Convention because it pursued the legitimate aim of protection of young persons. With regard to article 14, the Commission considered it unnecessary to examine the question, given its conclusion on the breach of article 8.

The Commission noted that an individual may bring a claim under the Convention if the individual is directly affected by the law, regardless if the law had specifically been enforced or implemented against him.

With regard to article 8(1), the Commission accepted the government’s reasoning that one must consider the application of the law in practice. However, the Commission noted that one must consider the role of the law in stigmatization and deterrence of particular behaviors. The Commission noted that, while the laws have not been used to charge or prosecute consenting individuals over 21 years of age, the laws themselves have not fallen into desuetude, and there has not been any clearly articulated policy of non-prosecution. The risk of prosecution was thus not absent, and the laws have direct and concrete effects on gay men.

The Commission, having held that the legislation constituted interference into private life, then considered whether the interference was justified. The Commission accepted the government’s argument that the legislation was aimed at the protection of young persons and of morals, considered legitimate aims under article 8(2), but it then questioned whether these laws were necessary. The Commission noted that interference must be justified by “a pressing social need” in a “democratic society.” The Commission cautioned that public acceptance in other parts of the United Kingdom cannot be determinative for Northern Ireland, but the Commission also observed that the evidence, including the quiet success of legal reform in England and Wales, strongly suggests that such laws are not “necessary” to protect morals for individuals over the age of 21. While the Commission held that the legislation was not justified for males over the age of 21 years, it held that prohibitions on homosexual conduct involving males under the age of 21 years was not in breach of the Convention.

Finally, with regard to article 14, the Commission noted that differences in treatment must pursue a “legitimate aim.” In the prior section, the Commission had already found that prohibition of homosexual conduct for males under 21 years of age was permissible and pursued a legitimate aim. The Commission had also held that article 8 was breached with regard to males over the age of 21. Thus, the Commission found it unnecessary to take up the question of whether article 14 had been breached.

The concurrence disagreed with the Commission not finding a violation of article 14. As the prohibition of private homosexual acts violated article 8, the concurrence viewed that there cannot be any justification for the difference in treatment between homosexuals and heterosexuals. This discrimination, including the stigma it reinforces, violated article 14.

“The Commission considers that, quite apart from any specific measure of implementation, the applicant is directly affected by the laws of which he complains since he is a male homosexual and the laws prohibit homosexual acts between males. He is one of a particular class of persons whose conduct is thus legally restricted. He can therefore properly ‘claim to be the victim’ of a violation of the Convention consisting in the existence of the laws in question.” (para. 86)

“The essential question is whether the actual effects of the law, in all the circumstances of the case, are such as to amount to an interference with the right to respect for private life of the individual concerned. The relative weight to be attached to any one factor, such as the terms of the legislation or the rigour with which it is actually enforced, must vary according to the circumstances.” (para. 91)

“The absolute legal prohibition on private consensual homosexual acts involving persons over 21 years of age cannot therefore be regarded as now being illusory or theoretical, or as having no real or practical effect. It still has concrete effects on the private life of male homosexuals including the present applicant, even if the risk that it will be enforced in criminal proceedings may not be great.” (para. 95)

“That is not to say that interferences in ‘private life’ may not be ‘necessary’ for the purpose of protecting the morals of society. However, in this area it is especially necessary to bear in mind that the interference must be justified by ‘a pressing social need’ in a ‘democratic society’ and also the Court’s reference in the Handyside Case to ‘the demands of that pluralism, tolerance and broadmindedness without which there is no democratic society’, (Series A., Vol. 24, p. 23, para. 49).” (para. 108)

“It has not been shown to make any contribution to the moral climate of society which could, within a reasonable relationship of proportionality, justify or counter-balance the inevitable negative effects which it has on the private lives of homosexuals, and the present applicant in particular. It cannot therefore be justified as ‘necessary’ under Art. 8(2).” (para. 115)