Lexploria

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

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P.L. v. IRELAND

P.L. v. IRELAND

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