The European Commission of Human Rights sitting in private on

17 July 1986, the following members being present:

                    MM. C.A. NØRGAARD, President

                        J.A. FROWEIN

                        F. ERMACORA

                        G. TENEKIDES

                        S. TRECHSEL

                        B. KIERNAN

                        A.S. GÖZÜBÜYÜK

                        A. WEITZEL

                        J.C. SOYER

                        H.G. SCHERMERS

                        H. DANELIUS

                        G. BATLINER

                        J. CAMPINOS

                        H. VANDENBERGHE

                    Mrs G.H. THUNE

                    Sir Basil HALL

                    Mr. J. RAYMOND, Deputy Secretary to the Commission

Having regard to Art. 25 (Art. 25) of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 8 April 1983 by

Martin Johnson against the United Kingdom and registered on 9 May 1983

under file No. 10389/83;

Having regard to the report provided for in Rule 40 of the Rules of

Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British citizen, born on 1 October 1954 and

resident in London.  The facts, as submitted by the applicant, may be

summarised as follows.

The applicant is represented before the Commission by

Mr. Peter Ashman, a barrister.

On the night of 3 October 1982, the applicant held a party, to which

he had invited some 40 people, all of whom were homosexual as was the

applicant himself.  The applicant states that no persons under the age

of 21 were invited and that to his knowledge none were present.

Between 02.00 hrs and 02.30 hrs the police entered the flat where the

party was still in progress.  Various items were removed from the

applicant's bedroom and the applicant and 37 guests were arrested and

taken to the police station.

On being arrested, the applicant was accused of permitting homosexual

acts to take place at the party contrary to the Sexual Offences

Act 1956, as amended by the Sexual Offences Act 1967.  The police

carried out the raid under their general powers to enforce legislation

on reasonable suspicion of offences, in this case offences against

these Acts.  The 1956 Act, an Act consolidating the existing statute

law made it an offence for any person to commit buggery with another

person or an animal (section 12) and an offence for a man to commit an

act of gross indecency with another man (section 13). Section 1 (1) of

the 1967 Act provides that:

"... a homosexual act in private shall not be an offence provided that

the parties consent thereto and have attained the age of 21 years."

By Section 1 (2) it is provided that:

"An act which would otherwise be treated for the purposes of this Act

as being done in private shall not be so treated if done -

a)      when more than two persons take part or are present; or

b)      in a lavatory to which the public are permitted to have

access, whether on payment or otherwise."

The applicant was questioned about his homosexuality and detained

until 11.30 hrs the same morning.

No prosecutions were subsequently brought, the applicant being

informed in December 1982 by his solicitors that the police would not

press charges.  The applicant and his guests however had been upset

and frightened by events and the publicity in the press caused further

distress.  The applicant believes the publicity surrounding the raid

played a decisive part in the withdrawal of an offer of permanent

employment at the firm of travel agents with which he was on

probationary service.

COMPLAINTS

Article 8 para. 1 (Art. 8-1) of the Convention

The applicant submits that the raid on his home was an interference by

a public authority with his right to respect for his private life and

his home.  The party was a private social occasion which took place in

his home and to which the general public had no access.  This

interference was authorised by the Sexual Offences Act 1956, as

amended by the Sexual Offences Act 1967.

The applicant submits that this legislation puts him at risk of

interference with his private life and is thus in violation of

Article 8 para. 1 (Art. 8-1).  He accepts that the police raid was and

would be "in accordance with the law" but contends that the law is

"not necessary in a democratic society" for any of the exceptions

contained in Article 8 para. 2 (Art. 8-2).

Article 14 (Art. 14) of the Convention

The applicant complains that there is clear inequality of treatment in

his enjoyment of the right to respect for his private life and home

since the legislation only applies to male homosexuals. Adult male and

female heterosexuals and adult female homosexuals may conduct

themselves in the privacy of their own homes as regards their

consensual sexual activities, without such risk of interference.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 8 April 1983 and registered on

9 May 1983.  The Commission examined its admissibility on

7 October 1985 and decided, in accordance with Rule 42 (2) b of its

Rules of Procedure, to invite the United Kingdom to submit written

observations on its admissibility and merits.  After one extension of

the time limit originally set, the Government's observations were

submitted on 29 January 1986.  The applicant's observations in reply

were submitted on 25 April 1986, similarly after one extension of the

time limit originally set.

OBSERVATIONS OF THE PARTIES

1.      The respondent Government

a)      The facts

At approximately 2.25 a.m. on 3 October 1982, acting on information

received that acts of buggery and gross indecency were taking place at

the applicant's address between groups of men some of whom were under

21, a number of police officers went to investigate. Finding the door

open, they entered and found a party going on. Groups of men were in

all the rooms, talking, holding hands and cuddling.  The police

officers entered the bedroom, where they saw six men, naked or only

partly clothed, two of whom were getting up from one of the mattresses

lying on the floor.  The guests of whom there were about 30 were

interviewed.  A number of them gave false details and in consequence

all were arrested and taken to Acton Police Station.  Although one of

the guests was under 21, he took no part in any sexual activity.

The applicant was questioned at the police station and was then

released pending further enquiries.  The applicant was not charged.

The Government originally stated in their observations that the

applicant was charged under section 13 with procuring other men to

commit acts of gross indecency but the Government have since stated

this to be an error.  Two months later, after the police had put the

case to their solicitor and been advised as to the difficulties of

proof, the applicant was informed no further action would be taken in

respect of the incident.

b)      Domestic law and practice

i.  Homosexual acts between males

In England and Wales, the current law on male homosexual acts is

contained in the Sexual Offences Act 1956 ("the 1956 Act") as amended

by the Sexual Offences Act 1967 ("the 1967 Act").

The 1956 Act, an Act consolidating the existing statute law, makes it

an offence for any person to commit buggery with another person or

animal (section 12).  Section 13 makes it an offence for a man to

commit an act of gross indecency with another man or to procure the

commission of such an act.  Section 13 in full provides as follows:

"It is an offence for a man to commit an act of gross indecency with

another man, whether in public or private, or to be a party to the

commission by a man of an act of gross indecency with another man, or

to procure the commission by a man of an act of gross indecency with

another man."

The 1967 Act qualified sections 12 and 13 of the 1956 Act by providing

that, subject to certain exceptions concerning the mentally

disordered, members of the armed forces and merchant seamen, buggery

and acts of gross indecency in private between consenting males aged

21 years or over should not be criminal offences.

Parliament did not, however, accept the Wolfenden Committee's

recommendation as to leaving the words "in private" without any

definition; and section 1 (2) of the 1967 Act provides as follows:

"An act which would otherwise be treated for the purposes of this Act,

as being done in private shall not be so treated if done

a)  when more than two persons take part or are present...."

Under section 13 of the 1956 Act it was an offence for a man to

procure an act of gross indecency between males.  Section 4 (3) of the

1967 Act however amended the section as follows:

"It shall not be an offence under section 13 of the Act of 1956 for a

man to procure the commission by another man of an act of gross

indecency with the first-mentioned man which by reason of section 1 of

this Act is not an offence under the said section 13."

It therefore remains an offence under section 13 of the 1956 Act for a

man to procure the commission of an act of gross indecency between two

other men whether that act itself is an offence or not.

Where a consensual homosexual act occurs between males over 16 and

amounts to an offence, the maximum penalty for committing the act or

procuring its commission is normally two years' imprisonment.  Where,

however, a male of or over 21 commits such an act, or procures a male

of or over 21 to commit such an act, with a male under 21, the older

man is liable to a maximum of 5 years' imprisonment.  In 1982 any

offence punishable with 5 years' imprisonment or more was, under

section 2 (1) of the Criminal Law Act 1967, an "arrestable offence".

By section 2 (4) of that Act:

"Where a constable, with reasonable cause, suspects that an arrestable

offence has been committed, he may arrest without warrant anyone whom

he, with reasonable cause, suspects to be guilty of the offence."

Section 2 (6) of that Act provided a constable with a power of entry

of any premises without a warrant for the purpose of arresting a

person under inter alia section 2 (4).  (Section 2 of the 1967 Act has

been replaced with effect from 1 January 1986 by a substantially

similar provision in the Police and Criminal Evidence Act 1984.)

ii.  Heterosexual acts and acts between female homosexuals

In England and Wales the age of consent for girls is 16.  It is an

offence for a man to have unlawful sexual intercourse with a girl

under 16 (section 6 of the 1956 Act).  Section 14 of the 1956 Act

makes it an offence for a male or female to indecently assault a

female but where she consents no offence can in general arise.  There

is, however, protection for a girl under 16, in that section 14 (2)

provides that a girl under that age cannot in law give any consent

which would prevent an act being an assault for the purposes of

section 14.  Section 14 also provides the age of consent for female

homosexual acts because the offence may be committed by females as

well as males.

As regards procuring, it is an offence at common law to procure any

person to commit an offence known to law.  Thus a person who procures

either of the offences mentioned in the previous paragraph is guilty

of an offence.  The 1956 Act also contains specific offences of

procuring heterosexual acts, mostly in the field of prostitution.

iii.  15th Report of the Criminal Law Revision Committee (April 1984

Cmnd 9213)

This report, submitted by the applicant in support of his application,

reviews the law relating to sexual offences.  Inter alia, the

committee recommended that section 1 (2) a) of the 1967 Act be

repealed so that as a general rule homosexual acts occurring between

adult males where more than two take part or are present should cease

to be criminal; but that a homosexual act of such a kind should remain

an offence where it was likely to be seen by "members of the public."

The committee also recommended that the "age of consent" for

homosexual acts between women should remain at 16.  In their

17th report, they dealt also with procuring and recommended that

procuring homosexual acts between others should remain an offence,

whether or not the acts procured are themselves illegal.

It is also relevant to note that the Policy Advisory Committee on

Sexual Offences appointed by the Home Secretary to advise him as to

the age of consent reported that they recommended the age of consent

for girls to remain at 16 and the age for male homosexual relations to

be reduced from 21 to 18.

c)      Admissibility and merits

Article 8 para. 1 (Art. 8-1)

The Government submits that none of the matters complained of amounted

to a breach of Article 8 para. 1 (Art. 8-1).  It is essential to bear

in mind that the police entered the applicant's flat because they

suspected with reasonable cause that arrestable offences were being

committed there, i.e. males of or over 21 were committing homosexual

acts with males under 21.  The police arrested the applicant because

they reasonably suspected him of procuring such offences.

The Government submits that the desire of a person to provide on his

premises facilities for persons (of whatever age) invited there to

commit homosexual acts is not an aspect of "his private life" and is

certainly not an aspect of "his private life" or "home" for which

Article 8 (Art. 8) gives him right to respect.  The Government refers

to X. v. United Kingdom (Application No. 7215/75, D.R. 19 p. 76) where

it was stated:

"not all regulation of sexual behaviour could be considered to be an

interference with the right to respect for private life."

This case concerned X's desire to have homosexual relations with

another man aged 18-21 in private and the Commission found the

prohibition was an aspect of X's private life under Article 8

(Art. 8).  This case however differs in that the applicant's

activities concerned a large number of other men and also the

applicant's own sex life is not concerned.  The application of the

criminal law to the applicant and to the use of his house in these

circumstances does not constitute an interference with his right to

respect for private life.

Article 8 para. 2 (Art. 8-2)

If, contrary to this submission, the Commission finds there is an

interference contrary to Article 8 para. 1 (Art. 8-1), the Government

submits that it is justified under Article 8 para. 2 (Art. 8-2).

The applicant does not contend that the entry and arrest were not in

accordance with law.

Further the Government argues that any interference is justified as

being aimed at the prevention of crime, the protection of health or

the protection of the rights and freedoms of others.  The Convention

refer to the DUDGEON case where the Court acknowledged that some

degree of regulation of male homosexual conduct can be justified as

necessary in a democratic society and that it is for the state

authorities to make the initial assessment of the pressing social need

in each case.

The Government submits that the powers of entry and arrest were

exercised in relation to the arrestable offences of committing a

homosexual act and the procuring of such acts and therefore were

clearly for the twin aims of "protection of morals" and the

"protection of the rights and freedoms of other", in particular of

males under 21.  The Government refers to the case of X. v. United

Kingdom and DUDGEON, where the Commission and Court accepted that the

prohibition of homosexual relations with males under 21 may be

considered necessary for these reasons.  A new consideration has

emerged recently with the spread of the disease AIDS, which makes it

clear that on the grounds of protection of health, the procuring of

promiscuous homosexual acts should remain discouraged by the criminal

law.

Article 14  (Art. 14)

The entry and arrest were dependent on the fact that it is an

arrestable offence for a male to have sexual relations with a male

under 21 and that the procuring of such an act is also an offence.

This protection of young men under 21 has already been considered by

the Commission in respect of heterosexuals and female homosexuals.

i.  Heterosexuals

In England and Wales the "age of consent" for homosexual relations

between males is 21; for heterosexual relations it is 16. In its

examination in X. v. United Kingdom of the difference between the two

ages the Commission found that an objective and reasonable

justification existed for the higher age in respect of male

homosexuals in the criterion of "social protection" (i.e. protection

of the rights of others).  It found too that the threat and employment

of criminal sanctions in that case were not disproportionate to the

aim of protection.  There was accordingly no breach of Article 14

(Art. 14) in that respect.  The Government would submit that the

social protection argument remains just as valid today and that there

is no reason for the Commission to alter its opinion of 1978 in the

case of X. v. United Kingdom.

ii.  Female homosexuals

The age of consent for female homosexuals is 16.  This difference in

treatment has already been considered by the Commission in X. v.

United Kingdom, where a previous Application No. 5935 was cited to the

effect that a specific social danger exists in the case of masculine

homosexuality since "masculine homosexuals often constitute a distinct

socio-cultural group with a clear tendency to proselytise adolescents

and that the social isolation in which it involves the latter is

particularly marked."

The Commission concluded that the difference in treatment was

justified by the different nature of the social problem and that the

test of proportionality was met in this regard.  The Government refers

also to the Report of the Criminal Law Revision Committee published in

April 1984 which stated that the phenomenon of lesbianism and the

social problems it generates are sufficiently different to justify a

lower age of consent.  The Government therefore submits there is no

reason why the Commission should depart from its previous view that

difference in age of consent for male and female homosexual behaviour

does not amount to a violation of Article 14 (Art. 14).

2.      The applicant

a)      The facts

The police decided to raid the applicant's home on the basis of

information from an anonymous telephone caller.  This caller had in

fact been evicted from the applicant's party because of his rude,

aggressive behaviour: he admitted to a friend of the applicant that he

had made the call in order to get his revenge.

The applicant disputes the Government's description of the scene in

his bedroom.  His own subsequent enquires suggested that one person

was on the bed, undressed but all the others clothed.  There was only

one mattress in the room.

The applicant states that he did not invite anyone under the age

of 21.  He has since learned that an Italian man aged 20 had been

brought along to the party by one of those invited.

The applicant denies that he was charged before release.  He was not

provided with a written statement of charge nor was he bailed by the

police as would normally be the case.  The applicant invites the

Government to supply proof that he was so charged.  (The Government

has subsequently accepted that the applicant was not charged.)

After his release, the applicant contacted his solicitor who advised

him immediately to prepare a record of what had transpired, which the

applicant did that same day.  The applicant recorded that all the

questions of the police were directed towards his own sexual

activities, what activities had been going on or would be allowed at

his party.  He was not asked about the ages of the people at the

party.

b)      Domestic law

Procuring

The offence of procuring acts of gross indecency as governed by

section 13 of the Sexual Offences Act 1956 can only be committed by a

man.  A woman commits no offence if she procures such an act, whether

that act is legal or illegal.  The applicant refers to the definition

of procuring set out in R. v. Broadfoot (1977 64 Cr. App. Rep. 71).

In this case Mr. Justice Cusack stated that it had been properly

defined as to produce by endeavour, to recruit, to bring about a cause

of conduct which the person in question would not have embarked

spontaneously of their own volition.  In this case, all of the persons

at the applicant's party were there of their own free will and none

had been persuaded to participate in unlawful homosexual acts against

their will.  Therefore, the applicant could not have been convicted of

procurement if everyone was a willing participant.  The reason why the

police raided the applicant's party was not because of any suspicion

of a possible offence of procurement, but because of suspicions about

illegal homosexual acts, i.e. more than two persons engaging in

homosexual acts, some of whom were under 21.

c)      Admissiblity and merits

Article 8 para. 1 (Art. 8-1)

It is submitted that the entry by police officers into a private home

to arrest all the persons at a private social gathering amounts to a

far more direct and open interference with the rights guaranteed under

Article 8 para. 1 (Art. 8-1) than the interference by telephone

surveillance found in the KLASS (Eur. C. judgment of 6 September 1978)

and MALONE cases (Eur. C. judgment of 2 August 1984).  There was no

judicial authorisation for the raid, which was carried out under

legislation permitting entry and arrest without warrant.  The police

also directed the major part of their questioning to the applicant's

own sex life.

Article 8 para. 2 (Art. 8-2)

The applicant submits that the legislation and the police enforcement

of it were not justified under any of the heads set out in Article 8

para. 2 (Art. 8-2).  He accepts that they were in accordance with

domestic law, but disputes that they are necessary in a democratic

society.

The prohibition on more than two persons engaging in homosexual acts

Both the Wolfenden Committee in 1957 and the Criminal Law Revision

Committee (CLRC) in 1984 regarded the use of the criminal law to

regulate the private conduct of adult male homosexuals as being

unjustified.  Wolfenden said such conduct was "outside the proper

purview of the criminal law."  The CLRC described the existing

situation as "an unjustified interference with the privacy of

homosexuals in their own homes."

The House of Commons has not been given the opportunity to re-consider

the provision since 1967.  The number of prosecutions has been

negligible but the existence of the law and the wide powers of

enforcement of the police enable the public authorities to interfere

with the private lives of homosexual men on the merest of suspicions.

In the present case, it was a disgruntled guest: it could equally have

been a hostile neighbour or passing police officer who peeked through

the window and saw men dancing and cuddling.

The offence of procuring

The applicant submits that it was not suspicion of such an offence

which led the police to raid his home, since no information concerning

any alleged act of procurement had been given.

The applicant does not dispute that where there is a genuine case of

procuring an offence i.e. persuading someone to commit a criminal

offence which he would not normally be willing to commit, then the

enforcement of the law may be justified under Article 8 para. 2

(Art. 8-2).  However, there is no pressing social need for a separate

offence under section 13.  There have hardly been any prosecutions, it

can be committed only by a man and its existence can be used by the

public authorities to interfere with the private lives of homosexual

men whenever more than two gather for a social occasion in their

homes. But since in this application, no offence of procuring had been

committed and none suspected before the raid, the question of

procuring is largely irrelevant.

The presence of a man under 21

The only guest under 21 was a visitor from Italy.  Italian law does

not discriminate in respect of the age of consent for sexual activity,

the age of 16 being fixed as the age of consent for all consensual

sexual acts, heterosexual or homosexual.  Neither does Italian law

prohibit private sexual acts involving more than two people.  It is

illogical to argue that the police raid aimed at protecting his health

or morals or his rights and freedoms by preventing him doing what his

national law had permitted him freely to do for several years and what

he would be able to do in almost every other member state of the

Council of Europe.

The Commission decided in the case of X., Application No. 7215/75,

that an age of consent of 21 for male homosexuals was permissible

under the doctrine of the margin of appreciation for English males.

The applicant also notes that, in deciding Application No. 9721/82

v. United Kingdom, the Commission chose to ignore the recommendations

of the Council of Europe's own criminological experts in this field,

as expressed at the 15th Criminological Research Conference, and the

views expressed by the Council of Europe's Parliamentary Assembly, in

recommendation No. 924 (1981) concerning, inter alia, the minimum age

of consent for homosexual acts.  The Commission further ignored the

views of all the English experts, medical, legal and sociological,

expressed in their various evidences to the CLRC, and subsequently

endorsed by the body, that the age of consent should be reduced to at

least 18 for homosexual acts between males.

In the applicant's view, it is illogical that the Government, and the

Commission, should rely on expert medical, psychological and

sociological studies from the 1950s and 1960s to provide the basis for

a finding that there is objective and reasonable justification for

restricting rights under the Convention, yet should refuse to rely on

studies of a similar expert nature from the 1970s and 1980s when these

all concur that the extent of such restrictions is no longer

necessary.

The House of Commons has not been allowed to re-consider the age of

consent since 1967 and opinion has evolved considerably since then.

This failure to keep old laws under periodic Parliamentary review

where their effect amounts to restrictions on a most intimate aspect

of private life is incompatible with the obligation to respect the

right guaranteed by Article 8 (Art. 8) and not merely to refrain from

interfering with it; especially where the powers exercised can have

such drastic consequences as loss of liberty, loss of employment, loss

of home and break-up of the family, both for males over 21 and those

under 21, whom the restrictions are ostensibly designed to protect.

Such interference with ordinary private and home life which is

possible under the legislation is totally disproportiate to the aims

advanced by the Government to justify such interference.

Aids

The Government further suggests that interference is justified by

seeking to prevent the spread of AIDS, yet the Government's own

advertising makes it clear that AIDS is transmitted by a variety of

means.  It is found to a considerable degree amongst drug addicts and

haemophiliacs, yet there are no special legal restrictions on their

sexual acts.  Concern for the health of the persons at the applicant's

party was not one of the police considerations in raiding it.

Article 14 (Art. 14)

The applicant submits that he has suffered clear discrimination in the

enjoyment of his rights under Article 8 (Art. 8), taken together with

Article 14 (Art. 14), which has no reasonable or objective

justification.

(i)     Only homosexual men may be prosecuted for engaging in sexual

relations in private with more than two persons present in the room.

(ii)    Only men, whether hetero- or homosexual, may be prosecuted for

procuring homosexual acts, whether such acts are legal or illegal.

All of the expert bodies which have considered the law relating to

privacy regard it as anomalous.  It leaves homosexual men at risk of

interference by the public authorities whenever three or more gather

together socially.  There have scarcely been any prosecutions since it

was enacted, yet its existence enables the public authorities to

interfere in private lives in such a way that, as in the present

application, it can result in loss of liberty, loss of employment,

loss of friends and loss of reputation.  For these reasons, the

applicant submits that his rights under the Convention have been

violated.

THE LAW

1.      The applicant complains that the police entry into his home

was an interference with his right to respect for his private life and

his home.  He also complains that the legislation which authorised the

police action puts him at risk of interference with his private life.

Article 8 (Art. 8) provides that:

"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."

The Commission will consider in turn whether the entry and arrests

which followed or the legislation constitute an interference with the

applicant's rights under Article 8 (Art. 8).

The raid

The Commission recalls that on the morning of 3 October 1982 a number

of police officers entered the applicant's flat, where he was holding

a "gay" party, seized items from his bedroom and after arresting the

applicant and his guests took them to the police station, where they

were questioned about their activities.

However, the Commission is not required to decide whether or not the

facts alleged by the applicant disclose any appearance of a violation

of this provision, as Article 26 (Art. 26) of the Convention provides

that the Commission "may only deal with the matter... within a period

of six months from the date on which the final decision was taken."

Since however it is accepted that the entry and arrests were lawfully

carried out, the applicant had no effective remedy open to him in the

English courts.  Where no domestic remedy is available, the six months

period runs from the date of the act which is itself alleged to be in

violation of the Convention (cf. Application No. 8077/77,

Dec. 10.7.78, D.R. 13 p. 153).

In the present case the incidents complained of took place on

3 October 1982 whereas the application was submitted to the Commission

on 8 April 1983, that is more than six months after the date of the

incident.  Furthermore, an examination of the case does not disclose

the existence of any special circumstances which might have

interrupted or suspended the running of that period.

It follows that this part of the application has been introduced out

of time and must be rejected under Article 27 para. 3 (Art. 27-3)

of the Convention.

The legislation

The applicant however also complains that the legislation governing

homosexual activities puts him at risk of interference with his

private life.  In particular, he complains of the law which retains an

offence where homosexual acts are committed and more than two adult

males are present.  He relies on the events of 3 October 1982 to

illustrate the potential threat to which he is vulnerable.

a) The Government submits that the applicant's home was raided and the

arrests took place on suspicion of men under 21 being involved in

homosexual acts and that the applicant was in fact arrested on

suspicion of procuring such acts.  On investigation, it was found that

these offences had not taken place and the applicant was released.

The European Court of Human Rights stated in the DUDGEON case:

"In the personal circumstances of the applicant, the very existence of

this legislation continuously and directly affects his private

life...."

(Eur. Court H.R., judgment of 22 October 1981, Series A no. 45

para. 41, p. 18)

The first question is then whether the existence of legislation

prohibiting homosexual acts with consenting males under 21, with the

consequence that a suspected offender is liable to arrest, in the

personal circumstances of the applicant, continuously and directly

affects his private life.  It is not however contended before the

Commission that the applicant has, has had or wishes to have

homosexual relations with a male under 21 and that being so the

legislation does not continuously and directly affect his private

life.  Accordingly, the Commission finds that on the facts of the

present case the existence of this legislation does not present any

appearance of an interference with the applicant's rights under

Article 8 (Art. 8) of the Convention.

It follows that this part of the application is manifestly ill-founded

within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

b) The applicant however also complains of the provision which makes

it illegal for homosexual acts to be committed when more than two

persons take part or are present.

The Commission notes that a person who commits homosexual acts in such

circumstances or procures others to do so would be liable on first

conviction to a maximum sentence of two years imprisonment. These

offences were therefore not "arrestable offences" within the meaning

of section 2 of the Criminal Law Act 1967 and the police do not have

the power to arrest without warrant or to enter a home for that

purpose.  It would have been necessary for the police to have laid an

information before a magistrate, who would decide whether or not a

warrant should be issued.

The Commission further notes that the entry into the applicant's

apartment was not made on the suspicion that an offence against this

provision was being committed.  The Commission recalls that the

applicant has not alleged that he is disposed to the commission of

homosexual acts when more than two persons take part or are present.

Nor is there evidence that such acts took place in the applicant's

home on 3 October 1982.

The Commission therefore concludes that there is no indication that in

the personal circumstances of the applicant the existence of the

legislative provision making it an offence to commit a homosexual act

when more than two persons take part or are present continuously and

directly affects his private life or his home.  Accordingly, the

existence of this legislation does not constitute an interference with

his right to respect for his private life or his home.

It therefore follows that this part of the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2)

of the Convention.

2.      The applicant further complains that he suffers discrimination

in his enjoyment of the right to respect for his private life and home

since the legislation only applies to male homosexuals.  He complains

that adult heterosexuals and female homosexuals may conduct themselves

in the privacy of their homes as regards consensual sexual activities

without such risk of interference.

Article 14 (Art. 14) provides:

"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."

In examining this complaint, the Commission recalls the principles

established by the European Court of Human Rights in the BELGIAN

LINGUISTIC case (Eur. Court H.R., Belgian Linguistic judgment of

9 February 1967, Series A no. 5) where it was stated that a difference

in treatment should have an objective and reasonable justification and

that there should be a relationship of proportionality between the

means employed and the end sought to be realised.

a) The Commission recalls that the entry into the applicant's home was

made under section 2 of the Criminal Law Act 1967 which enables entry

into a home without warrant to effect the arrest of persons suspected

of having committed a criminal offence punishable with imprisonment of

five years or more.  The criminal offence in question was that of a

male committing a homosexual act with another male under

21.  However, the Commission recalls that it considered this issue in

the cases of X. v. United Kingdom, Application No. 7215/75 (loc. cit)

and in X. v. Federal Republic of Germany, Application No. 5935/72,

Dec. 30.9.75, D.R. 3 p. 46, and concluded that the difference in

treatment between male homosexuals and heterosexuals and female

homosexuals found an objective and reasonable justification in the

criterion of social protection as described and developed in those

cases.  The Commission notes in this context that the Criminal Law

Revision Committee in its Fifteenth Report considered the question of

whether the age of consent for lesbian acts should in fact be raised

to bring it more into line with the age of consent for male

homosexuals.  The Committee however agreed with the Policy Advisory

Committee which recommended that 16 remain the age of consent for

females.  It was found that

"... homosexual relationships tended to arise later in life among

women than among men; that there was no comparable group of 16 to

18 year old girls whose sexual orientation had not yet become fixed

and who were consequently in need of protection by the criminal law;

and that adolescent girls did not seem especially attractive to older

women in search of a partner of the same sex, there being greater

emphasis in male homosexual culture on this age group."

Again, the Commission, while recognising the changing and developing

views on the issue of the age of consent for male homosexuals, sees no

reason to depart from its previous decisions and is of the opinion

that the test of proportionality is satisfied in the facts of the

present application.

Accordingly the Commission finds that the difference in treatment

resulting from legal provisions prohibiting homosexual relations under

the age of 21 does not constitute discrimination under Article 14

(Art. 14) of the Convention.  It follows that this part of the

application must be dismissed as manifestly ill-founded within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

b) The applicant has also complained of discrimination in relation to

the legislation which makes it an offence for homosexual acts to be

committed in the presence of more than two adult males, no analogous

provisions applying to adult female homosexuals or heterosexuals.

The Commission refers again to its previous case-law (Applications

No. 7215/75 and 5935/72 loc. cit) and would apply the same reasoning,

namely, that heterosexuality and lesbianism do not give rise to

comparable social problems.  Accordingly, the Commission finds that

any difference in treatment resulting from this legislation would also

have an objective and reasonable justification in the need to protect

the individual particularly the young and vulnerable.  The Commission

further recalls that the police could not act on suspicion of such

offences involving more than two adult males without first gaining a

warrant from a magistrate.  The Commission finds that the measures of

enforcement which can be taken in relation to such offences are

proportional to the end sought to be realised.

It follows that on the facts of the present case there is no

appearance of a violation of Article 14 (Art. 14) read in conjunction

with Article 8 (Art. 8) and this part of the application must also be

dismissed as manifestly ill-founded within the meaning of Article 27

para. 2 (Art. 27-2).

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE.

        Deputy Secretary                      President

       to the Commission                  of the Commission

         (J. RAYMOND)                      (C.A. NØRGAARD)