CASE OF DUDGEON v. THE UNITED KINGDOM
Violation of Art. 8;Not necessary to examine Art. 14+8;Just satisfaction reserved
C. Russo
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 1855 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 ten 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 paragraph 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 paragraph 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. 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. 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 (section 12) and an offence for a man to commit an act of "gross indecency" with another man (section 13). The 1967 Act, which was introduced into Parliament as a Private Member’s Bill, was passed to give effect to the 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 "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 act 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. 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 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. 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 (1921-9172) the United Kingdom Parliament rarely, if ever, legislated for Northern Ireland in respect of the devolved matters - in particular social matters - falling within the 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 (see the judgment of 18 January 1978 in the case of Ireland v. the United Kingdom, Series A no. 25, pp. 10 and 20-21, par. 19 and 49). Since that date, except for a period of five 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. 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 devolved government for Northern Ireland, the then Secretary of State for Northern Ireland announced in Parliament that the United Kingdom Government would thenceforth by 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 had 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 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 law should be capable of being 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 Mr. 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 Irish 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 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 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 is 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 1979-1980, the Advisory Commission reiterated its view that 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 paragraph 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. 29. In accordance with the general law, anyone, including a private person, may bring a prosecution for a homosexual offence, subject to the Director of Public Prosecutions’ power 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. 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 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.