Application No. 22382/93
by Ralph WILDE, Hugo GREENHALGH and
William PARRY
against the United Kingdom
The European Commission of Human Rights sitting in private on
19 January 1995, the following members being present:
MM. C.A. NØRGAARD, President
H. DANELIUS
C.L. ROZAKIS
E. BUSUTTIL
G. JÖRUNDSSON
S. TRECHSEL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
E. KONSTANTINOV
G. RESS
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 5 April 1993 by
Ralph WILDE, Hugo GREENHALGH and William PARRY against the United
Kingdom and registered on 29 July 1993 under file No. 22382/93;
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
28 March 1994 and the observations in reply submitted by the
applicant on 29 June 1994;
- the Government's further submissions of 10 November 1994;
Having deliberated;
Decides as follows:
THE FACTS
The applicants are three homosexual men. The first applicant was
born in 1973 and lives and studies in London. The second applicant,
also born in 1973, is of English origin and is a student in Edinburgh,
in Scotland. Whilst in Edinburgh, the second applicant met and began
a relationship with the third applicant, who was born in 1968 and works
in London. The applicants are represented by Ms. Angela Mason, of
Stonewall, a non-governmental organisation which works for lesbian and
gay equality, and Mr. Peter Duffy, a barrister in London. The facts
of the application may be summarised as follows.
The particular circumstances of the case
The first applicant suffered a homophobic attack in the village
where he lived in the winter of 1991. He was attacked in the early
evening by a group of young boys and, when the police answered a
telephone call he had been able to put through, he did not dare tell
them that he had been attacked because he was gay. Since the incident
he has felt upset and vulnerable. He considers that the higher age of
consent for male homosexuals which is meant to protect young men like
himself actually made him more vulnerable to physical attack and
inhibited him from cooperating with the police to apprehend his
attackers.
The second and third applicants met in February 1992. On
23 April 1993 they were leaving a fair in Edinburgh when a group of
boys aged fifteen and sixteen started hitting them and shouting abuse,
calling them "queers", "poofs" and "cock suckers". One of them pulled
the third applicant to the ground and kicked him in the face. When the
second applicant tried to defend him, they picked on him. The second
applicant's mouth was cut and he had several stitches. The third
applicant was very shocked and had severe bruising on his face and
body. The second and third applicants, too, feel that far from
protecting young men, the criminalisation of homosexual activity for
people of their age creates a climate of hostility to homosexual men.
On 20 May 1993 the second applicant took part in a radio
discussion in which he referred to his sexual relationship with the
third applicant. A member of the public has since written to the
Director of Public Prosecutions to ask for criminal proceedings to be
brought. The BBC have confirmed that the police asked for a copy of
the programme. The applicants were then interviewed by the police on
21 July 1993. It appears that proceedings were not ultimately brought
against them.
The relevant domestic law
(i) England
Section 12(1) of the Sexual Offences Act 1956 ("the 1956 Act")
makes it an offence to commit buggery with another person. Consent is
not a defence. Section 13 of the 1956 Act makes it an offence for a
man to commit an act of "gross indecency" with another man. Section
1 of the Sexual Offences Act 1967 ("the 1967 Act") provided that
buggery and acts of gross indecency in private between consenting males
aged twenty-one or over should not be criminal offences.
In England and Wales, the consent of the Director of Public
Prosecutions was required for criminal proceedings in relation to
homosexual acts "where either of those men was at the time of its
commission under the age of 21" (Section 8 of the 1967 Act).
Prosecutions were brought, however, and in 1990 455 prosecutions gave
rise to 342 convictions. In 1991 213 prosecutions gave rise to 169
convictions.
The Policy Advisory Committee on Sexual Offences, reporting to
the Home Secretary in 1981, recommended that the minimum age for
homosexual relations between men should be reduced to 18. The
Committee accepted that the sexual pattern of the overwhelming majority
of young men is fixed by the age of 18, and that whilst young men of
between 16 and 18 could still benefit from the protection of the
criminal law, by the age of 18 the overwhelming majority of young men
are mature enough to assume the responsibility of deciding their
reaction to homosexual advances. A minority of the Committee
considered that the minimum age should be reduced to 16.
The Criminal Justice and Public Order Act 1994 replaced the word
"twenty-one" in Section 1 of the Sexual Offences Act 1967 with the word
"eighteen". The Act entered into force on 3 November 1994.
(ii) Scotland
The substantive law in Scotland is similar to that in England and
Wales and is contained largely in the Criminal Justice (Scotland) Act
1980. The common law also provides a range of crimes.
A Crown Office Circular of November 1991 indicated that the
public interest was not served by routinely prosecuting all persons who
participated in unlawful homosexual acts. The circular was succeeded
in December 1991 by a Circular which stated:
"Where both of the participants are over 18 years but one or both
are under 21 years and the act has taken place in private and
where there are circumstances pointing to exploitation,
corruption, or breach of trust, prosecution would be
appropriate."
The Criminal Justice and Public Order Act 1994 also reduced the
minimum age for homosexual acts in Scotland from 21 to 18.
COMPLAINTS
The applicants allege violations of Articles 8 and 14 of the
Convention.
The applicants acknowledge that the Commission has had occasion
to consider the age of consent for male homosexual activities in the
United Kingdom in the case of X v. the United Kingdom (No. 7215/75,
Comm. Rep. 12.10.78, D.R. 19 p. 66). They consider, however, that
attitudes have changed fundamentally since then, and point inter alia
to the report of the Policy Advisory Committee of 1981, to the fact
that the first and second applicants are deemed adult for all purposes
in the United Kingdom except applying for a Heavy Goods Vehicle Driving
Licence and for standing as a Member of Parliament, to the fact that
the United Kingdom now has the highest homosexual age of consent in
Europe, and to the fact that the World Health Organisation has removed
homosexuality from the international list of diseases.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 5 April 1993 and registered on
29 July 1993.
On 17 January 1994 the Commission decided to communicate the
application to the respondent Government and to request the parties to
submit their observations on the admissibility and merits of the
application.
The Government submitted their observations on 28 March 1994 and
the applicants submitted their observations in reply on 29 June 1994.
On 10 November 1994 the Government informed the Commission that the
Criminal Justice and Public Order Act 1994 had entered into force on
3 November 1994, and requested the Commission to strike the application
off its list of cases.
REASONS FOR THE DECISION
The applicants allege a violation of Articles 8 and 14 of the
Convention by virtue of legislation which prohibited buggery or acts
of gross indecency except those which took place in private between
males aged 21 or over. They consider that, given their particular
relationship and ages, this legislation constituted a disproportionate
interference with their private lives, and that it was in no way
justified on any of the grounds set out in Article 8 para. 2 of the
Convention. They see the difference in the age of consent for
homosexual relations as it applied to them as in violation of Article
14 of the Convention. They accept that the minimum age has now been
reduced to 18, but consider that for the period whilst the first and
second applicants were under 21 and the old legislation was in force,
they remain victims of these alleged violations.
Article 8 of the Convention 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."
Article 14 of the Convention provides as follows:
"The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any ground
such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national
minority, property, birth or other status."
The Government submit that the applicants are not victims of any
alleged violations of the Convention as the Criminal Justice and Public
Order Act 1994 has now entered into force and the minimum age for
homosexual acts has been reduced from 21 to 18. They have formally
invited the Commission to strike the application out of its list of
cases under Article 30 para. 1 (b) or (c) of the Convention. In
connection with the substantive issues in the case, the Government
consider that a minimum age of 18 for homosexual acts is in any event
in conformity with Articles 8 and 14 of the Convention, but do not
accept that a minimum age of 21 is in breach of Articles 8 and 14.
The Government have requested the Commission to find that the
applicants are no longer victims of the violations of the Convention
they allege, and to strike the application out of its list of cases.
Article 30 para. 1 of the Convention provides, so far as relevant, as
follows:
"The Commission may at any stage of the proceedings decide to
strike a petition out of its list of cases where the
circumstances lead to the conclusion that:
...
(b) the matter has been resolved, or
(c) for any other reason established by the Commission, it is
no longer justified to continue the examination of the petition.
However, the Commission shall continue the examination of a
petition if respect for human rights as defined in this
Convention so requires."
The Commission finds that the aim of the applicants in bringing
the present application was to have a reduction of the minimum age for
homosexual acts from 21 to 18. It regards the incidents they cite of
homophobic behaviour as arguments in support of their having capacity
to claim to be victims of the state of the law complained of, rather
than specific complaints of alleged violations of the Convention.
The Commission next notes that the Criminal Justice and Public
Order Act 1994, which reduced the age for consensual homosexual acts
from 21 to 18, entered into force on 3 November 1994. The age was not
reduced to 16, as Stonewall (the non-governmental organisation for
which one of the applicants' representatives works) had wished.
Given that the thrust of the present application is to challenge
the age limit of 21 for homosexual acts in the context of males aged
18 and over, the Commission finds that the entry into force of the
relevant parts of the Criminal Justice and Public Order Act 1994 on
3 November 1994 has resolved the matter within the meaning of Article
30 para. 1 (b) of the Convention. Questions concerning a minimum age
of 16 for engaging in homosexual acts are not affected by this finding.
The Commission also finds no reasons within the meaning of the
final sentence of Article 30 para. 1 which could require the Commission
to continue the examination of the application.
It follows that the application must be struck off the
Commission's list of cases in accordance with Article 30 para. 1 of the
Convention.
For these reasons, the Commission unanimously
DECIDES TO STRIKE THE APPLICATION OFF ITS LIST OF CASES.
Secretary to the Commission President of the Commission
(H. C. KRÜGER) (C.A. NØRGAARD)
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