Smith and Grady v. United Kingdom

Applications No. 33985/96 and 33986/96; (1999) 29 EHRR 493; [1999] ECHR 72; [1999] IRLR 734; (1999) 11 Admin LR 879
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The Applicants were both exemplary members of the Royal Air Force and had been discharged solely due to being homosexual.

The first appellant was an enrolled nurse.  An anonymous female caller left a message on the applicant’s answering machine stating that she knew about the applicant’s homosexuality and afterwards informed the air force authorities. In a pre-disciplinary interview regarding her absence without leave, the applicant admitted that she was homosexual. She also confirmed that she had a previous and current homosexual relationship. Both relationships were with civilians. A unit investigation report was opened, during which the applicant confirmed that while she had had “thoughts” about her sexual orientation for about six years, she had her first lesbian relationship during her first year in the air force. The applicant indicated that she knew the consequences of her homosexuality being discovered and, while she considered herself just as capable of doing the job as another, she had come to terms with what was going to happen to her. The investigation report was sent to the applicant’s commanding officer who recommended the applicant’s administrative discharge. The applicant shortly thereafter received a certificate of discharge from the armed forces.

The second applicant was a sergeant and worked at the British Defence Intelligence Liaison Service (North America) (“BDILS(NA)”) in Washington, D.C. The second applicant was married with two children had told his wife that he was homosexual. Following disclosures to the wife of the head of the BDILS(NA) by their nanny, the head of the BDILS(NA) reported that it was suspected that the applicant was homosexual. A unit investigation report was opened. The applicant’s security clearance was replaced with a lower security clearance, and he was relieved of his duties by the head of the BDILS(NA) and was informed that he was being returned to the United Kingdom pending investigation of a problem with his security clearance. On the same day the applicant was brought to his home to pack his belongings and was required to return to the United Kingdom.

The investigation interviewed multiple people involved in the applicant’s life including the applicant. The applicant initially denied he was homosexual. Later, the applicant admitted his homosexuality when he realized he would not lose his accumulated benefits on discharge. The applicant was then administratively discharged.

The applicants, with two others, sought judicial review for their discharges but the high court dismissed the application. While the High Court noted the hardships resulting from the absolute policy against homosexuals, the Court upheld the policy as reasonable. The Court of Appeal also dismissed the applicants’ appeal finding that the policy could not be considered “irrational.”

The Court held that both the discharges and the investigations done after the admissions of homosexuality violated Article 8 § 2 (right to respect for private and family life). The Court found both were in accordance with the law and had a legitimate aim but that neither were “necessary in a democratic society” as required by Article 8. As the intrusions concerned one of the most intimate parts of an individual’s private life, the Court required “particularly serious reasons” to justify them. In terms of the armed forces, this meant that there must have been a “real threat” to their operational effectiveness. The Court found that the HPAT report, upon which the military supported its policy to exclude homosexuals, came to its conclusion that integration would harm morale based solely on negative attitudes towards homosexuals by current soldiers. The Court found that this, especially when considered against the backdrop of the successes of integrating women and racial minorities, was not “convincing and weighty” evidence to support the exclusionary policy. Likewise, the continued investigations done into the applicants’ private lives after finding that they were gay was a violation as the government’s rationale of seeking to detect false claims of homosexuality was not sufficiently convincing and weighty.

The Court found a violation of Article 13 (right to an effective remedy) due to the violation of Article 8. The Court noted that while the applicants were able to seek judicial review, they had to fulfill the high bar of showing the policy was “irrational” before the courts would intervene. The judgments of the High Court and Court of Appeal contained statements supporting the applicants and noting that the policy will likely end soon due to Convention obligations. The Court found that these statements showed that the courts were restricted by the requirement of “irrationality” that they could not review the substance of the policy and whether it fulfilled a pressing social need or was proportionate.

The Court found that the treatment, while distressing, did not reach the minimum level of severity to lead to a violation of Article 3 (prohibition of torture).

The Court did not view there to be a separate issue of discrimination on the grounds of sexual orientation and did not analyze the case in light of Article 14 (prohibition of discrimination) in conjunction with Article 8 nor did it consider it necessary to review the case for a potential freedom of expression (Article 10) violation distinct from the primary issue.

A separate partly concurring, partly dissenting opinion found no violation of Article 8. The separate opinion considered that imposing the sharing of facilities (e.g. bathrooms) with homosexuals would create problems similar to requiring shared facilities between men and women. The separate opinion would have provided extra margin of appreciation due to the national security interests at play.

“Accordingly, when the relevant restrictions concern “a most intimate part of an individual’s private life”, there must exist “particularly serious reasons” before such interferences can satisfy the requirements of Article 8

§ 2 of the Convention ….
The Court also considers that it is open to the State to impose restrictions on an individual’s right to respect for his private life where there is a real threat to the armed forces’ operational effectiveness, as the proper functioning of an army is hardly imaginable without legal rules designed to prevent service personnel from undermining it. However, the national authorities cannot rely on such rules to frustrate the exercise by individual members of the armed forces of their right to respect for their private lives, which right applies to service personnel as it does to others within the jurisdiction of the State. Moreover, assertions as to a risk to operational effectiveness must be “substantiated by specific examples” ….” (Para. 89)

“Accordingly, the Court must consider whether, taking account of the margin of appreciation open to the State in matters of national security, particularly convincing and weighty reasons exist by way of justification for the interferences with the applicants’ right to respect for their private lives.” (Para. 94)

“The Court observes from the HPAT report that these attitudes, even if sincerely felt by those who expressed them, ranged from stereotypical expressions of hostility to those of homosexual orientation, to vague expressions of unease about the presence of homosexual colleagues. To the extent that they represent a predisposed bias on the part of a heterosexual majority against a homosexual minority, these negative attitudes cannot, of themselves, be considered by the Court to amount to sufficient justification for the interferences with the applicants’ rights outlined above any more than similar negative attitudes towards those of a different race, origin or colour.” (Para. 97)

“In  such  circumstances,  the  Court  considers  it  clear  that,  even assuming  that  the  essential  complaints  of  the  applicants  before  this  Court were before and considered by the domestic courts, the threshold at which the High Court and the Court of Appeal could find the Ministry of Defence policy  irrational  was  placed  so  high  that  it  effectively  excluded  any consideration  by  the  domestic  courts  of  the  question  of  whether  the interference with the applicants’ rights answered a pressing social need or was  proportionate  to  the  national  security  and  public  order  aims  pursued, principles which lie at the heart of the Court’s analysis of complaints under Article 8 of the Convention.” (Para. 138)