Lexploria

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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WILDE, GREENHALGH AND PARRY v. THE UNITED KINGDOM

WILDE, GREENHALGH AND PARRY v. THE UNITED KINGDOM

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