AS TO THE ADMISSIBILITY OF
Application No. 28105/95
by P.L.
against Ireland
The European Commission of Human Rights (First Chamber) sitting
in private on 23 October 1997, the following members being present:
MM M.P. PELLONPÄÄ, Acting President
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
M. VILA AMIGÓ
Mrs M. HION
Mr R. NICOLINI
Mrs M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 28 July 1995 by
P.L. against Ireland and registered on 3 August 1995 under file
No. 28105/95;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
18 December 1996 and 29 April 1997 and the observations in reply
submitted by the applicant on 21 February and 6 June 1997;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an Irish national born in 1958. Before the
Commission he is represented by Padraic Brennan, solicitor, Paul
McDermott, barrister-at-law, and Blaise O'Carroll, senior counsel, of
Ferrys Solicitors, practising in Dublin.
The facts of the case as submitted by the parties may be
summarised as follows.
A. Particular circumstances of the case
On 12 November 1990 the applicant was arrested and later charged
and indicted. The following facts which led to the applicant's arrest
were submitted during the trial.
Prior to the events at issue the applicant and Ms. D ("the
complainant") had lived for certain period of time together in the
United Kingdom. They had a daughter, T., born on 24 February 1989.
The relationship between the applicant and the complainant deteriorated
and she eventually obtained in court in the United Kingdom the custody
of T. The applicant was granted access to T.
In August 1990 the complainant returned to Dublin with her
daughter, leaving the applicant in the United Kingdom. Two weeks later
the applicant arrived in Dublin and sought to see his daughter. The
applicant eventually took T. for a holiday, the complainant having
remained at her mother's home in Dublin. The applicant then allegedly
refused to return T. unless he was allowed to live with the complainant
and their daughter in Dublin. The complainant apparently agreed and
the three of them returned to Dublin and resided at her mother's house
until the applicant's arrest.
On 11 November 1990 the applicant and the complainant had a
quarrel, following which the applicant took T. and went out. After the
complainant found him at her sister's home, at about 6 p.m. they went
to a bar, taking T. with them. After consuming some beer they left.
As regards the events which followed it was submitted at the
trial that at some time in the evening the applicant had oral, anal and
vaginal sex with the complainant, the modalities thereof however having
been disputed.
The complainant stated that after having driven her for some time
around Dublin, shouting at her and not letting her go, the applicant
had stopped the car at a deserted place somewhere at the docks area of
Dublin, had pulled the complainant out of the car, had forced her to
undress and had raped her.
The applicant submitted at the trial that he had stopped the car
at the docks, that he and the complainant had gone outside for a walk
to continue to discuss their problems, and that they had had sex with
the complainant's full consent.
After the incident the applicant was arrested when he stopped the
car shortly after driving away from the docks. On the back seat of the
car was the complainant naked, wrapped in a blanket and holding their
daughter. Two police officers approached the stopped car. Thereupon
the complainant knocked on the window and told the police officers that
she had been raped.
The applicant was indicted on three counts: indecent assault,
rape and buggery.
At the trial he maintained that in the course of their
relationship the complainant had been the initiator of anal intercourse
before and that such acts had been a normal, albeit not regular, part
of their sexual life as a couple. This was rejected by the
complainant.
On the first day of the trial the applicant's lawyers made an
application to the trial judge stating that following the judgments of
the European Court of Human Rights in the Dudgeon and Norris cases
(Eur. Court HR, Dudgeon v. the United Kingdom judgment of 22 October
1981, Series A, No. 45; Norris v. Ireland judgment of 26 October 1988,
Series A, No. 142), Ireland was under an obligation to change its law
on buggery so that consensual anal intercourse between males, or
between a male and a female, could not be subject of a criminal
sanction. The lawyers requested that the count of buggery be removed
or examined at a separate trial.
The trial judge noted that there were some differences between
the Dudgeon and Norris cases and the case before him. Thus, the facts
of the case, as alleged by the prosecution, clearly concerned forced
acts committed without consent. As under the law both participants in
a buggery are criminally liable, the complainant would have been
prosecuted also if it were the opinion of the prosecution that she had
consented to the anal intercourse. The judge also stated that in any
event he was bound by the law as it was. As a result the trial
proceeded on the three counts.
Evidence was given inter alia by several police officers, by the
complainant and by the applicant, by medical personnel and by forensic
scientists. The latter provided evidence of ripped and mud-stained
undergarment, as well as of bruises and scratches on the complainant.
After all submissions of the parties the trial judge summed up
the evidence in the case and gave directions to the jury. He stated
inter alia:
"It seems to me to all intents and purposes on the admitted
evidence on both sides, ladies and gentlemen, inevitable that
you should convict Mr. Leonard on Count 3, the offence of
buggery, but there is a very considerable measure of difference
between buggery on a consensual basis between two persons who
had been having a lengthy, albeit turbulent, relationship and
forced sexual activities of that particular nature.
If your verdict, ladies and gentlemen, was to the effect
that the accused was guilty on Count No. 3 of buggery but not
guilty in respect of Counts 1 and 2, that is to say, rape and
indecent assault, I cannot inquire as to what went on in your
jury room or in your deliberations, but I am also bound in that
contingency of acting on the version of events that could
reasonably be true that is most favourable to the accused man,
and if your verdict was one of guilty on Count No. 3 but not
guilty on the other two counts, whilst it would still be a
matter of significance, it would be a very much less grave
finding than a version which indicated that the particular
sodomitical act was forced upon [the complainant]. You may take
it, ladies and gentlemen, from my experience, and I have no
doubt from that of the various counsel in the case, that you
have not been here over the past week dwelling on an allegation
of consensual anal sex between two persons who had been having
a lengthy relationship. Had the case involved an allegation of
consensual buggery, you may take it would be most unlikely that
evidence would have come to light, and you may also take it ...
that it would be rather improbable that the prosecution would
have instituted a prosecution on the basis of such a consensual
act, or that if the prosecution had instituted a prosecution, it
would have also joined [the complainant] on a basis of being
somebody equally involved in it, because in law if there is
consensual buggery carried out between consenting adults - and
it matters not whether this is in a heterosexual or homosexual
context - if the persons are of full age, then both the active
and the passive partner are equally liable. But I think you can
take it, ladies and gentlemen, from the fact that [the
complainant] was not charged and from all the circumstances of
the case that the real allegation is that there was forced
buggery along with the forced indecent assault and forced
vaginal intercourse or rape alleged by the prosecution.
Accordingly, if you saw fit to return a verdict on Count
3 only but not guilty on the other counts, it seems to me that
in fairness I would have to assume, since neither [the
complainant] nor [the applicant] have alleged that there was any
difference as regards part of the sexuality being consensual and
part not consensual, it seems to me that I would have to find
that that was on the basis of it being at any rate capable of
being reasonably true, that it was a consensual act, and that I
would, accordingly, be constrained to look on the matter with
more leniency than normally so grave a charge as buggery would
require. Other than that, ladies and gentlemen, I am not going
to go into any possible aspects pertaining to sentence. It does
seem to me that the real case that the prosecution are alleging
before you is the contention that all three actions were carried
out on a forced basis in the particular circumstances relied
upon by the prosecution and that there was no question of
consent being a version that could reasonably have been true in
relation to any of them."
On 19 March 1991 the jury convicted the applicant on the count
of buggery and acquitted him on the counts of indecent assault and
rape. On 22 March 1991 the applicant was sentenced to two years'
imprisonment, the last eight months of which having been suspended.
On imposing sentence the judge stated inter alia:
"the jury verdict in no sense is to be interpreted as a
finding by the jury that [the complainant] consented to the
sequence of acts in question ... [I]t merely implies that the
jury, conscientiously interpreting the onus and standard of
proof, were unable to find that the prosecution version had been
proved to the requisite high degree."
The judge further stated:
"... whilst I in no sense interpret the jury's verdict as
meaning that [the complainant] consented to being sodomised ...,
for purposes of [the applicant's] sentence the law requires me,
as I, indeed, charged the jury, to interpret the finding as
meaning that I must approach [the] sentence on the basis of
consensual activity ... in the context of count 3. This still
remains a very serious and profoundly disturbing matter when one
considers the evidence as a whole, and whilst I am going to make
every conceivable allowance in your favour, I am nonetheless in
the course of the res gestae going to bear in mind that very
shortly after the incident, although you were not charged with
it, you made a wholly unwarranted and quite scurrilous assault
on [the complainant] on your own admission by striking her quite
forcibly with your fist. It is true that you were not charged
with this matter, but it seems to me that it is part of the res
gestae, and indeed I certainly do not think it would be a just
outcome if any further charges were to be brought by the
prosecution in relation to that, but I am going to bear it in
mind to a degree.
I have to deal greatly more leniently with your case in the
context of the jury's finding and the requirement that I have
referred to that I must deal with the matter as having been on
their finding as regards you consensual, albeit in circumstances
that were profoundly disturbing and that culminated in a most
unsavoury and unprovoked assault by you on [the complainant].
It seems to me that I am still constrained to a issue a
custodial sentence that cannot be trivial but that I must vastly
demarcate between the sentencing aura of ten to twelve years
that I undoubtedly would have imposed had you been found guilty
on all three counts."
On 13 February 1995 the Court of Appeal refused the applicant's
application for leave to appeal against conviction.
B. Relevant domestic law
The offence of buggery under Irish law, as it stood at the
relevant period of time and until 1993, was a felony under Section 61
of the Offences Against the Person Act, 1861. This provision read as
follows:
"Whoever shall be convicted of the abominable crime of
buggery, committed either with mankind or with any animal, shall
be liable to be kept in penal servitude for life".
The offence of buggery could be committed by male or female
persons. Consent was not a valid defence against the charge of
buggery.
Section 61 of the 1861 Act was to be read in conjunction with the
provisions of the Penal Servitude Act 1891, Section 1, by virtue of
which the court is empowered to impose a lesser sentence of penal
servitude than that mentioned in the 1861 Act or, in lieu thereof, a
sentence of imprisonment for a term not exceeding two years or a fine.
The provisions of the 1861 Act were also subject to the power given to
the court by Section 1(2) of the Probation of Offenders Act 1907, to
apply, by way of substitution, certain more lenient measures.
Section 2 of the Criminal Law (Sexual Offences) Act 1993
abolished the offence of buggery between persons and consequently
Section 61 of the 1861 Act was repealed. Section 4 of the same Act
created a new offence known as "rape under Section 4" meaning a sexual
assault which included anal penetration.
COMPLAINTS
The applicant complains under Article 8 of the Convention that
the very existence, as well as the application in the particular
circumstances of his case, of the legal provision which provided for
prosecution for buggery, was an interference with the applicant's
rights under Article 8 of the Convention. This interference was
neither lawful, nor justified under the second paragraph of this
provision.
Thus, what the law considered a criminal offence, and what the
applicant was convicted of, was a consensual anal intercourse with a
female adult. It is unnecessary in a democratic society for any of the
purposes set out in paragraph 2 of Article 8 of the Convention, to
regulate such a matter by the criminal law. Furthermore, even if such
regulation had a legitimate purpose, the interference with the
applicant's rights under Article 8 of the Convention, by the nature and
the scope of the offence in respect of which he was convicted and
sentenced, was wholly disproportionate to any conceivable legitimate
aim.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 28 July 1995 and registered on
3 August 1995.
On 16 October 1996 the Commission decided to communicate the
application to the respondent Government.
The Government's written observations were submitted on
18 December 1996. The applicant replied on 21 February 1997. The
Government submitted additional observations on 29 April 1997, to which
the applicant replied on 6 June 1997.
THE LAW
1. The applicant complains that the very existence, as well as the
application in the particular circumstances of his case, of the legal
provision which provided for prosecution for buggery, was an
unjustified interference with his rights under Article 8 (Art. 8) of
the Convention.
Article 8 (Art. 8) of the Convention, insofar as relevant,
provides as follows:
"1. Everyone has the right to respect for his private ... life
...
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."
The Government submit that the applicant has not exhausted the
domestic remedies within the meaning of Article 26 (Art. 26) of the
Convention as he has not claimed before the Irish courts that the
criminalisation of consensual buggery between heterosexual adults is
unconstitutional. The Norris judgment (Eur. Court HR, loc. cit.) upon
which he relied concerned only the criminalisation of such activities
between homosexuals.
The Government also maintain that the applicant cannot establish
that he has been affected by the law prohibiting consensual buggery
which was abolished in 1993. The applicant cannot establish that but
for this prohibition he would not have been convicted.
The Government argue that the Commission should not assume, as
is sought by the applicant, that the jury's verdict was based on a
finding of consent on the part of the complainant. There was ample
evidence upon which the jury were entitled to hold that the buggery
occurred without the consent of the complainant. As a jury does not
give reasons for their verdict the Government submit that neither the
Irish courts, nor the Commission has the power to enquire into the
basis for the decision arrived at by them.
The Government further submit that there is no issue of privacy
involved in the particular circumstances of the case as the facts which
form its basis concern a criminal sanction for sexual activities
occurring in a public place and in the presence of a very young child.
The applicant replies that he exhausted the domestic remedies by
applying to the trial judge for prohibitory relief in respect of the
prosecution on the count of buggery, by invoking the Irish Constitution
and the Convention in this respect, and by appealing against his
conviction and sentence. Also, no remedy could have been of any avail
in view of the Irish Supreme Court's judgment in the Norris case
[1984], where the Supreme Court found that Section 61 of the 1861 Act
was not unconstitutional.
The applicant submits that the law as such, as it stood at the
relevant time and until 1993, put him under the risk of prosecution for
consensual buggery. Indeed, the 1993 amendment is a further
indication, in his view, that Section 61 of the 1861 Act was regarded
as too broadly drafted. The applicant further contends that it is not
a question of what evidence was in the hands of the prosecution in his
case, which determines whether a violation of the Convention has
occurred. The problem lies in the fact that the statute was too widely
drafted, so as to encompass consensual buggery.
The applicant argues that in any event although he was charged
with rape and forced buggery, having been acquitted on the charge of
rape, it was clear that the buggery would have to be viewed as
consensual. It is no argument to say that it was impossible to know
the reasons for the jury's verdict, this very fact being in conflict
with Articles 5 and 6 (Art. 5, 6) of the Convention. Furthermore, it
was clear from the trial records that the only major issue which was
disputed was whether the sexual activity between the applicant and the
complainant in the evening of 11/12 November 1990 had been consensual.
The applicant finally submits that the case concerns the
applicant's private life, within the meaning of Article 8 (Art. 8) of
the Convention, the fact that the sexual activity was carried out in
the open not having any relevance. The area was isolated and the
couple were alone there. What is important is that the applicant was
convicted for an essentially intimate private act, there never having
been a charge that it had been performed in a public place.
2. The Commission need not decide whether the applicant has
exhausted all domestic remedies within the meaning of Article 26
(Art. 26) of the Convention as his application is in any event
inadmissible for the following reasons.
a) The Commission notes that the applicant complains in the first
place that the existence in Irish law until 1993 of the offence of
buggery constituted a breach of his rights under Article 8 (Art. 8) of
the Convention.
The Commission recalls the Convention organs' case-law according
to which the existence of a prohibition in criminal law of homosexual
conduct between adults in private may constitute a continuous situation
affecting directly a homosexual's private life. This is so because a
homosexual finds himself in a situation where he either respects the
law and refrains, even in private and with consenting partners, from
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. In particular, in the Norris case, the
continuous situation stemming from the existence of buggery as a felony
under Irish law and of Section 61 of the 1861 Act, the same provision
under which the applicant in the present case was convicted, was found
to be in breach of a homosexual's right to respect for his private life
(the Norris v. Ireland judgment, loc. cit.; cf. also the Dudgeon v. the
United Kingdom judgment, loc. cit., and Eur. Court HR, Modinos v.
Cyprus judgment of 22 April 1993, Series A no. 259).
However, the Commission notes that the applicant in the present
case is not in any way under the effects of a continuous situation
where he lives under constant fear of prosecution. Indeed, the
applicant has never claimed that he was disposed to a style of sexual
life which would have been interpreted as buggery under Irish law
before 1993, or that acts of such nature had become an indispensable
necessity for him. His only statement in this respect, made during his
trial, was that the complainant had introduced sexual acts of that
nature in their relations and that they had gradually become a normal,
albeit not regular, part of the couple's sexual life. Furthermore, the
Commission notes that the Irish law as regards buggery was changed in
1993, more than six months prior to the introduction of the present
application.
The Commission finds, therefore, that insofar as the applicant
complains of the very existence, until 1993, of the legislation
criminalising certain types of sexual activities, his application does
not disclose any appearance of a violation of the Convention and has
to be rejected under Article 27 (Art. 27) of the Convention.
b) The applicant also complains that he was convicted and sentenced
for having committed anal intercourse with an adult woman, with her
consent. He contends that this conviction and sentence constituted an
unjustified interference with his private life contrary to Article 8
(Art. 8) of the Convention.
However, the Commission considers that the jury's verdict and the
sentence in the applicant's case cannot be interpreted as a conviction
and sentence for a consensual sexual activity, as suggested by the
applicant.
The Commission recalls that in his directions to the jury the
trial judge emphasised that the jury could take it from the fact that
the complainant was not charged and from all the circumstances of the
case that the allegation was that the buggery which had taken place was
not consensual but was forced. It is true that the trial judge added
that if the jury saw fit to return a verdict of guilty on the count of
buggery alone, it seemed to mean that in fairness he would have to find
that the buggery was a consensual act and accordingly that he could be
constrained to look at the matter with more leniency than normally so
grave a charge as buggery would require. It is true, too, that in
imposing sentence the trial judge observed that he was required to
interpret the jury's finding as meaning that he should "approach ...
sentence on the basis of consensual activity ... in the context of
Count 3." However, it is clear from the remarks of the judge, read as
a whole, that he did not interpret the jury's verdict as meaning that
the complainant consented to the act of buggery on the occasion in
question but that in imposing sentence he was required to approach the
matter on the basis of a version of the facts favourable to the
applicant.
The Commission accordingly considers that the applicant was not
convicted or sentenced for an act of consensual buggery. Therefore,
the Commission finds that the applicant's conviction and sentence did
not constitute an unjustified interference with his private life within
the meaning of Article 8 (Art. 8) of the Convention.
It follows that the remainder of the application is manifestly
ill-founded and has to be rejected under Article 27 para. 2 (Art. 27-2)
of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO M.P. PELLONPÄÄ
Secretary Acting President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy