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AS TO THE ADMISSIBILITY OF

Application No. 25186/94

by Euan SUTHERLAND

against the United Kingdom

The European Commission of Human Rights sitting in private on

21 May 1996, the following members being present:

MM. S. TRECHSEL, President

C.L. ROZAKIS

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

MM. F. MARTINEZ

J.-C. GEUS

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

D. SVÁBY

A. PERENIC

K. HERNDL

E. BIELIUNAS

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 8 June 1994 by

Euan SUTHERLAND against the United Kingdom and registered on

19 September 1994 under file No. 25186/94;

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 5 May

1995 and the observations in reply submitted by the applicant on

24 August 1995;

- the parties' submissions at the hearing on 21 May 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a United Kingdom citizen born in 1977. He lives

in London and is represented before the Commission by Mr. S. Grosz,

solicitor with Messrs. Bindmans, London, together with 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, as submitted by the parties, may be

summarised as follows.

The particular circumstances of the case

The applicant became aware of attraction to other boys at about

the age of 12. As his contemporaries became more interested in girls,

he became more aware that he was sexually attracted to boys. From

around that time, he felt sure that his sexual orientation was

homosexual. He tried going out with a girl when he was 14. They are

still friends, but there was no sexual attraction with her, and the

experience confirmed for the applicant that he could only find a

fulfilling relationship with another man.

The applicant had his first homosexual encounter when he was 16,

with another person of his own age who was also homosexual. They had

sexual relations, but both worried about the law.

The Relevant domestic law

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 shall not be criminal offences.

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). In 1990 455 prosecutions gave rise to 342

convictions. In 1991 213 prosecutions gave rise to 169 convictions.

The consent of the DPP is now required for prosecutions of males aged

16 and 17.

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.

COMPLAINTS

The applicant alleges violation of Articles 8 and 14 of the

Convention.

He considers that although the minimum age for lawful homosexual

acts has been reduced from 21 to 18, the requirements of the Convention

are still not complied with. He points out that he, as a homosexual

male, has the only sexual orientation under which he is precluded from

any lawful possibility of expressing an important and intimate aspect

of his personality. He remains at risk of prosecution if he has a

relationship with a man only a little younger than he is.

He underlines that the unequal age of consent is enforced by

imposing criminal liability and sanctions on those under that unequal

age of consent, whilst in other countries only an older person who has

relations with the person under the age of consent will be

criminalised.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 8 June 1994 and registered on

19 September 1994

On 10 January 1995 the Commission decided to communicate the

application to the respondent Government, pursuant to Rule 48

para. 2 (b) of the Rules of Procedure.

The Government's written observations were submitted on

5 May 1995, after an extension of the time-limit fixed for that

purpose. The applicant replied on 24 August 1995, also after an

extension of the time-limit.

On 27 November 1995 the Commission decided to hold an oral

hearing on the admissibility and merits of the application.

On 19 April 1996 the Commission granted the applicant legal aid.

At the hearing which was held on 21 May 1996, the parties were

represented as follows:

The Government :

Ms. Susan J. DICKSON, Agent of the Government

Mr. David PANNICK QC, Counsel

Mr. Steven BRAMLEY, Home Office, Adviser

Mr. Chris HUDSON, Home Office, Adviser

The applicant :

Mr. Peter DUFFY, Counsel

Ms. Clare MONTGOMERY QC, Counsel

Mr. Stephen GROSZ, Solicitor

Ms. Angela MASON, Executive Director, STONEWALL

Mr. Matthew HEIM, Pupil barrister

Mr. Euan SUTHERLAND, Applicant

Mr. Norman SUTHERLAND, Applicant's father

THE LAW

The applicant alleges violation of Articles 8 and 14

(Art. 8, 14) of the Convention, which provide in their relevant parts

as follows.

Article 8 (Art. 8)

"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 ... 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 (Art. 14)

"The enjoyment of the rights and freedoms set forth in this

Convention shall be secured without discrimination on any ground

such as sex ... or other status."

The Government recall the well-established case law to the effect

that contracting states are entitled to prohibit consensual homosexual

acts involving young persons in order to protect the rights of others

and to protect morals, in particular to protect young men from conduct

by which they will set themselves apart form the rest of society and

which they may well regret when they reach greater maturity. They

refer to the margin of appreciation allowed to states in determining

the appropriate age for this purpose, and consider that the Commission

should not depart from its existing case-law. Given the entitlement

to prohibit consensual homosexual acts involving young persons, the

Government consider that they are also entitled to take the view that

such aims justify special measures in relation to homosexuals by

comparison with young heterosexuals, and that such aims justify the

possible application of criminal law against the young person, and not

merely against an older partner.

The applicant considers that the margin of appreciation is

particularly narrow in cases involving an obligation to refrain from

interference rather than the imposition of positive obligations on the

state, and contends that no justification at all has been advanced for

the different treatment of gays and lesbians, and that the

justifications tendered for the difference between gays and

heterosexuals are inadequate and fall outside the margin of

appreciation. In particular, he considers that most of them amount to

a bald assertion based on the fact that the current age limit results

from a vote of both Houses of Parliament. He also points out that the

evidence on which the Wolfenden Report (1957), the Policy Advisory

Committee on Sexual Offences (1981) and the Criminal Law Revision

Committee (1984) based themselves is no longer reliable and have been

superseded by modern professional opinion and the particular issues

raised by the need to prevent HIV infection. As an example, the

British Medical Association, to whose views the Policy Advisory

Committee paid particular attention, now advocates an equal age of

consent of 16.

The Commission finds, in the light of the parties' submissions,

that the application raises serious and complex issues of fact and law

which require determination on the merits. It follows that the

application cannot be dismissed as being manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No

other ground for declaring it inadmissible has been established.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION ADMISSIBLE,

without prejudging the merits of the case.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (S. TRECHSEL)

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SUTHERLAND v. THE UNITED KINGDOM

SUTHERLAND v. THE UNITED KINGDOM

LEXI