THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Applications nos. 48535/99, 48536/99, 48537/99 by John BECK, Howard COPP and Kevin BAZELEY against the United Kingdom

The European Court of Human Rights (Third Section) , sitting on 5 September 2000 as a Chamber composed of

Mr J.-P. Costa, President , Mr W. Fuhrmann, Mr P. Kūris, Mrs F. Tulkens, Mr K. Jungwiert, Sir Nicolas Bratza, Mr K. Traja, judges , and Mrs S. Dollé, Section Registrar ,

Having regard to the above applications introduced on 11, 12 and 13 January respectively and registered on 3 June 1999,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants are British nationals. The first applicant (Mr Beck) was born in 1959 and he is currently resident in Lancashire . The second applicant (Mr Copp ) was born in 1957 and he is currently resident in Tyne and Wear. The third applicant (Mr Bazeley ) was born in 1967 and he is currently resident in Worcester . All applicants are represented before the Court by Jean Gould, a solicitor practising in Birmingham .

A. The circumstances of the cases

The facts of the cases, as submitted by the parties, may be summarised as follows.

1. The first applicant

On 4 May 1976 the applicant joined the Royal Air Force. By 1993 he had reached the rank of sergeant in the Electronic Warfare Operational Support Establishment (“EWOSE”) where he was employed as a communications systems analyst and he submits that he was well placed for promotion. During his service he was awarded the Air Officer Commanding Commendation for Meritorious Service and the Long Service and Good Conduct medal. The applicant was divorced in 1988.

The applicant’s service evaluations covering the period June 1990 to January 1993 all recorded the applicant’s conduct as exemplary and, for the most part, his trade proficiency, supervisory ability and personal qualities were assessed at 8 out of 10. He was highly recommended for promotion during each assessment. The detailed evaluations were all positive. The first reporting officer (with whom the second and third reporting officers essentially agreed) noted, in his final evaluation, that the applicant was an intelligent, caring, self-assured and mature senior non-commissioned officer who continued to work extremely hard; while his forthright opinions could detract from his popularity, the applicant always seemed to have the best interests of his subordinates at heart and he was highly recommended for promotion without hesitation.

By 1993 the applicant was studying theology and was considering ordination. On 8 ‑ 9 May 1993 he attended a course designed to help individuals assess their suitability for ordination. During that course the applicant claims that he realised that he could no longer deny his homosexuality and that he felt morally bound to reveal his sexual orientation as he was aware of the policy against homosexuals in the armed forces. He discussed the matter with the Station Padre and had decided that he could no longer live a lie.

Accordingly, on 10 May 1993 the applicant informed an EWOSE security officer that he was homosexual and he made it clear that he had always been a celibate homosexual. Since he considered his discharge inevitable, he requested that it take place as soon as possible. Later that day he saw his immediate superior to whom he also admitted his homosexuality. On 11 May 1993 the applicant was interviewed by the officer commanding EWOSE. On 12 May 1993 security services were advised and a service police investigation commenced on 20 May 1993 which included their completing a Character Defect Enquiry (“CDE”) on the applicant. He was suspended from his duties from 17 May 1993.

The CDE report was dated 8 June 1993, briefly described the applicant and his service career noting that he was currently engaged to serve until February 2006 and outlined the detailed observations made by a number of persons to the service police.

The EWOSE security officer to whom the applicant had spoken on 10 May 1993 described the applicant’s visit to his Squadron Leader when the applicant had admitted his homosexuality. The security officer reported on information provided by the applicant on his family and on how he had lived his homosexuality in the armed forces and he proffered the view that the applicant was, in fact, homosexual and not attempting to secure early release. That officer also described the applicant’s visit to a medical officer and, on referral, to a visiting psychiatrist, the latter of whom had indicated that the applicant was not suffering from a clinical disorder.

The submissions of the officer who had interviewed the applicant on 11 May 1993 were also noted in the CDE report, the latter considering that the applicant was genuinely homosexual and was not making the claim in order to obtain early discharge. The report also recorded the information received from the applicant’s immediate superior who had described the applicant’s character and his interest in theology and who had proffered the view that he was not surprised that the applicant had claimed to be homosexual. That officer confirmed that the applicant had not given any indication that he was homosexual and that he had not seen or heard anything that would substantiate the applicant’s story. He also described the applicant’s admission to him that he was homosexual and the applicant’s reasons for his admitting his sexual identity at that stage.

The statements of two colleagues of the applicant were also recorded in the CDE report. The first had been a close friend of the applicant and the applicant had admitted his homosexuality to him two weeks before he did so to the armed forces’ authorities. That colleague described his relationship with the applicant and the applicant’s wish to be ordained and also spoke about the applicant’s financial problems. The second colleague described a striking change in the applicant’s personality a few weeks after he arrived in the sergeant’s mess (he had become miserable and withdrawn). This change could now be explained, according to that colleague, by the applicant’s admission. Both colleagues described the applicant as a ‘man’s man’ who gave no indication of his homosexuality.

The Station Padre’s evidence to the service police was also recorded in the CDE report. The latter’s meeting with the applicant on 9 May 1993 was detailed in the report, the applicant’s religious studies and ambitions were also outlined as was the Station Padre’s conversation about the applicant with another Padre who had been involved in the course on 8-9 May 1993. The Station Padre’s views on the likelihood of the applicant being accepted into the priesthood were also set out together with the latter’s opinion that the applicant was a clever individual who would attempt to get what he wanted, the way he wanted.

The applicant’s wife (also in the armed forces) also provided a detailed statement to the service police which was recorded in the CDE report. She described her hesitations in marrying the applicant, their marital difficulties, their financial difficulties, their separation in 1987 and their divorce in 1988.

The CDE report concluded that no signs of homosexual tendencies were identified by the applicant’s ex-wife, colleagues or friends, that the only evidence was the applicant’s own admission and that the enquiry had not revealed anything to rebut the applicant’s submissions that he had not had a homosexual physical relationship. Various identified matters could imply that the applicant had mercenary reasons for wishing to be discharged and it was noted that he had threatened to go to the press if he was not treated properly. It was recommended that the applicant’s financial problems should be included in any further personal security report.

The Unit Commander’s recommendation for administrative disposal of the matter was dated 18 June 1993 and included the applicant’s conduct and trade assessments since 1982 to January 1993. His conduct was consistently marked as excellent and he was highly recommended for promotion since October 1996. It dealt briefly with his relationships with his family members, noting that his brother was a practising homosexual. It went on to record that:

“. Despite grave emotional and personal problems, performance as a tradesman and supervisor has remained unaffected until his disclosure on 10 May 1993 ... Despite the devious and deliberate concealment of his homosexual tendencies, honesty and character have caused him finally to admit to the truth. is five years away from a substantial gratuity and pension, which he has now lost together with his career .. The fact that has lost so much in material terms to gain some inner personal peace should be seen as a mitigating factor. ... has few friendships outside his working environment and those remaining will now be under much strain. He has nowhere to live outside the Sergeant’s Mess ... As such this lonely and solitary individual, who has had to face up to a situation not of his own making, deserves to be treated in a compassionate and dignified manner. ... has had to cope with extreme personal difficulties which have not previously impacted on the Service. These difficulties, which have been beyond his control, have caused him to become a lonely and solitary man, and finally to admit to his true personality. His homosexual tendencies cannot be reconciled easily in the Royal Air Force and his continued retention is not consistent with good discipline or morale. Nevertheless, has earned the right to be treated in a dignified manner and should be given all possible assistance in reconciling his situation.”

A statement of the applicant was attached to the above recommendation in which he took exception to the reference to the sexual orientation of his brother which he considered to be of no concern to the Royal Air Force and which he found offensive. He also objected to the reference to “devious and deliberate concealment” which he regarded as a disgraceful attack on his personal integrity. He also noted that since the outset of the case he had been treated “with very considerable kindness by all concerned” and that “it would be quite wrong if I did not mention this fact”, the applicant commending in particular the EWOSE security officer (to whom he had spoken on 10 May 1993) for his kindness and human approach to the matter. In his additional remarks, the Unit Commander noted:

“With the current policy on homosexuality, the simple fact is that cannot be retained. This is a sad case and I am very keen to see that is treated fairly and with as much dignity as can be afforded. He should be discharged as soon as is administratively possible and hence I strongly advise that his case is processed with all haste. Furthermore, I believe very strongly that he should receive his full entitlement of resettlement training/leave, and terminal leave. His dedicated and diligent service over many years warrants a sympathetic and understanding approach to his final weeks in the Service.”

Further to the intervention of the applicant’s Member of Parliament, the Parliamentary under Secretary of State for Defence apologised for the delay in processing the applicant’s case and, on 27 November 1993, the applicant was discharged from the air force on grounds of his homosexuality. His certificate of discharge indicated that his services were no longer required, the applicant being unable to meet his service obligations because of circumstances beyond his control.

2. The second applicant

The applicant joined the Royal Army Medical Corps on 1 June 1978 and was indexed as a pupil nurse on 12 November 1979. He passed his autumn assessment in 1981. At the time of his discharge in 1982 he was a private, training as a pupil nurse in a military hospital.

In his assessment dated 14 January 1982 he was recommended for promotion and rated above the standard required of his rank and service. The reporting officer in that evaluation noted that he was a conscientious and reliable young man with good nursing potential, that he had a polite and cheerful manner and got on well with his colleagues. It was considered that he carried out his regimental duties satisfactorily and was ready for promotion.

In June 1981 the applicant commenced a homosexual relationship with a civilian. Six months later the applicant received a posting order to Germany and applied for a home posting as he wished to remain in the United Kingdom with his partner. His application was refused. The applicant submits that he then realised that he could not lead a double life or face separation from his partner. Although he knew that revealing his homosexuality would lead to his discharge, he informed his nurse tutor. The latter informed the personnel officer who conducted four interviews with the applicant on the subject of his homosexuality.

The applicant was then required to undergo a psychiatric assessment and was advised that this was necessary in order to ascertain whether he was, in fact, homosexual. The psychiatrist’s clinical notes dated 25 January 1982 indicated that it was felt that the applicant was not suffering from any psychiatric disorder, that there were no reasons to doubt the applicant’s allegation that he was homosexual and that there was, therefore, no psychiatric contra-indication to the applicant being discharged on grounds of homosexuality. The applicant was discharged from the army on 29 January 1982 on grounds of his homosexuality.

The reasons for discharge were outlined in a note from the applicant’s commanding officer dated 26 January 1982 where it was confirmed that the applicant had admitted to homosexual acts with civilians. It was also noted that there was no evidence of such activity with soldiers and it was considered that at no time had good order and military discipline been affected. It was felt that, while his “work has as yet not deteriorated”, the “problems of his relationship” would affect his work and reliability in the near future. It was further noted that the applicant had not yet lost the respect of his superiors nor suffered ridicule at the hands of his contemporaries but that this could well be so if his “problem” were to become common knowledge.

The assessment of his military conduct and character contained in his certificate of service signed on his discharge noted his conduct as exemplary, describing the applicant as conscientious and reliable with good nursing potential. A letter dated 7 December 1984 from Army Medical Services noted that ward reports throughout the applicant’s training showed that the applicant was an “above average nurse” who was well liked by his colleagues and patients. He was described as a keen and intelligent worker who applied himself well to all aspects of nursing.

3. The third applicant

The applicant joined the Royal Air Force on 10 November 1985. He commenced officer training at the Royal Air Force college on 10 November 1985, he was commissioned as Acting Petty Officer on 27 March 1986 and he subsequently achieved the rank of Flight Lieutenant and served as a second navigator at a Royal Air Force base in Scotland .

In his evaluation covering the period July 1993 to March 1994, the first reporting officer pointed out that the applicant, who had recently changed posting, was progressing satisfactorily in his current post and that, with more experience, the applicant should be a contender to become a first navigator in due course. Although he was not yet recommended for further promotion, he was considered to have good potential for the future if he could resolve his domestic difficulties. The second and third reporting officers also spoke of the impact on the applicant of the breakdown of his marriage, considering that he should rather consolidate his current position. Accordingly, none of the three reporting officers recommended the applicant for further promotion.

In August 1994 the applicant’s card holder, which he had previously lost, was found by an officer of the service police in the latter’s internal mail and its contents aroused suspicion that the applicant might be homosexual. On 3 August 1994 the applicant was interviewed by an officer of the service police and he was shown two membership cards of homosexual clubs which were in the applicant’s name. The applicant confirmed that the cards were his and that he was homosexual. During that interview the applicant was pressed to give names of service personnel with whom he had had a sexual relationship. The applicant stated that his homosexual activity was limited to members of the civilian population and that he had never had a sexual relationship with a member of the service.

A report dated August 1994 from the service police described the above interview and indicated that there was no evidence whatsoever to suggest that there was an abuse of rank, that the circumstances were particularly “deviant, sordid or persistent” or that “assault, violence, ill-treatment or other criminal or disciplinary offences” were involved. Accordingly, the applicant had not been interviewed under caution and was “content to make a voluntary statement”. That statement of the applicant, dated 3 August 1994, confirmed that he was homosexual and pointed out that he had realised he was homosexual in 1992 and that, in hindsight, this was a major contributory factor in the break-up of his marriage. He indicated that his wife knew at that stage of his homosexuality and he confirmed the statements made during his interview as to his previous homosexual relationships. He made it clear that he did not wish to provide the names of those persons with whom he had had a homosexual relationship and stated that he had not made the statement to get a discharge from service.

On 24 August 1994 the applicant was suspended from his normal primary duties with immediate effect. A report was prepared recommending that the applicant be ordered to resign his commission on the grounds of unsuitability.

On 31 August 1994 the applicant lodged a petition challenging this recommendation. On 6 January 1995 the decision of the Air Force Board, rejecting the applicant’s petition, was promulgated. On 19 May 1995 the applicant was informed that the decision of the Air Force Board would not be reviewed. On 4 September 1995 the applicant was discharged from the air force on grounds of his homosexuality.

4. The applicants’ Industrial Tribunal Proceedings and associated proceedings

On 24 January 1996 Mr Perkins, who had also been dismissed from the Royal Navy in 1995 on grounds of his homosexuality, applied to the High Court for leave to take judicial review proceedings on the basis that the Ministry of Defence policy was “irrational”, that it was in breach of Articles 8 and 14 of the Convention and that it was contrary to the EU Council Directive on the Implementation of the Principle of Equal Treatment for Men and Women as regards Access to Employment, Vocational Training and Promotion and Working Conditions 76/207/EEC (“the Equal Treatment Directive”).

On 30 April 1996 the European Court of Justice (“ECJ”) decided that transsexuals were protected from discrimination on grounds of their transsexuality under European Community law ( P. v. S. and Cornwall County Council [1996] Industrial Relations Law Reports 347). On 3 July 1996 Mr Perkins was granted leave by the High Court.

On 13 March 1997 the High Court referred to the ECJ pursuant to Article 177 of the Treaty of Rome the question of the applicability of the Equal Treatment Directive to differences of treatment based on sexual orientation (R. v. Secretary of State for Defence, ex parte Perkins , 13 March 1997).

On 17 February 1998 the ECJ found that the Equal Pay Directive 75/117/EEC did not apply to discrimination on grounds of sexual orientation ( Grant v. South West Trains Ltd [1998] Industrial Cases Reports 449). Consequently, on 2 March 1998 the ECJ enquired of the High Court in the Perkins’ case whether it wished to maintain the Article 177 reference. After a hearing between the parties, the High Court decided to withdraw the question from the ECJ (R. v. Secretary of State for Defence, ex parte Perkins , 13 July 1998). Leave to appeal was refused.

The applicants issued proceedings, along with a number of other individuals, in the Industrial Tribunal claiming unfair dismissal and sexual discrimination on 10 August 1995, in September 1995 and in October 1995, respectively. They argued, inter alia , in favour of the applicability of the Equal Treatment Directive to a difference of treatment based on sexual orientation. Following a hearing before the Tribunal in August 1996, their cases together with a series of similar cases, were stayed pending the outcome of the above-described Perkins’ case then pending before the High Court, the tribunal rejecting an application by the Ministry of Defence that the applications should be struck out on the basis that they were frivolous, vexatious and had no reasonable prospects of success. That stay was renewed in May 1997 and in June 1998. However, further to the High Court decision of 13 July 1998 in the Perkins’ case, the applicants, following legal advice, withdrew their applications before the Industrial Tribunal, which tribunal consequently dismissed their applications on 23 December 1998.

B. Relevant domestic law and practice

The domestic law and practice relevant to the present applications is described in the judgments of the Court in the cases of Lustig - Prean and Beckett v. the United Kingdom, nos. 31417/96 and 32377/96, 27.9.1999, and Smith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, 27.9.1999.

The time-limit for making a complaint of sex discrimination to the Industrial Tribunal is three months from the date of the action of which the individual complains (section 76(1) of the Sex Discrimination Act 1975). That time-limit can be extended if the tribunal considers it “just and equitable” to do so.

COMPLAINTS

1. The applicants complain under Article 8, alone and in conjunction with Article 14 of the Convention, in relation to the intrusive investigation into a most intimate part of their private lives and in relation to their subsequent discharge from the armed forces pursuant to the absolute policy against homosexuals in the armed forces.

2. They also complain under Article 3, alone and in conjunction with Article 14 of the Convention, about those investigations. They further submit that their being singled out for investigation and discharge because of their homosexuality constituted blatant discrimination based on crude stereotyping (nos. 4403/70 et subs, East African Asians v. the United Kingdom, Comm. report 14.12.1973, D.R. 78-A, p. 5).

3. They further complain under Article 10, alone and in conjunction with Article 14 of the Convention, about the decision to adopt and apply the policy against homosexuals in the armed forces, about the investigations conducted into their private lives and about their having been discharged because of their homosexuality.

4. Finally, the applicants invoke Article 13 of the Convention, arguing that they had no effective domestic remedy in these respects.

THE LAW

The applicants complain about both the investigation into their private lives and about their subsequent discharge from the armed forces pursuant to the policy of the Ministry of Defence against homosexuals in the armed forces. They invoke Article 8, both alone and in conjunction with Article 14 of the Convention. They also consider that they were treated in a manner inconsistent with Article 3, either taken alone or conjunction with Article 14 of the Convention, referring both to the investigations into their private lives and to their being singled out for investigation and discharge because of their homosexuality.

They further complain about the decision to adopt and apply the policy against homosexuals in the armed forces, about the investigations conducted and about their having been discharged because of their homosexuality, invoking Article 10 both alone and in conjunction with Article 14 of the Convention. Finally, they applicants invoke Article 13 of the Convention, arguing that they had no effective domestic remedy in relation to the above violations of the Convention.

The relevant Articles of the Convention read, in so far as relevant, as follows:

Article 3: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 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 in the interests of national security, public safety...”

Article 10: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ...

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, ...”

Article 13: “Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority ...”

Article 14: “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.”

By letter dated 14 January 2000 the Government stated that they did not believe that consideration by the Court of the present cases should lead to conclusions different to those which it had reached in the above-cited cases of Lustig-Prean and Beckett v. the United Kingdom , and Smith and Grady v. the United Kingdom . By letter dated 18 February 2000 the applicants confirmed that there were in agreement with the Government on this point.

The Court recalls that, in its judgment in the above-cited case of Lustig-Prean and Beckett v. the United Kingdom, it found that the investigations of the applicants’ sexual orientation and their discharge from the armed forces on the grounds of their homosexuality pursuant to the absolute policy of the Ministry of Defence against homosexuals in the armed forces amounted to a violation of Article 8 of the Convention. It considered that the complaints under Article 14 of the Convention did not give rise to any separate issue.

In its judgment in the similar case (also cited above) of Smith and Grady v. the United Kingdom, the Court reached the same conclusions under Articles 8 and 14 as regards those applicants’ complaints about the investigation of their sexual orientation and about their discharge from the armed forces on grounds of homosexuality. The Court found no violation in respect of the applicants’ further complaints under Article 3, taken either alone or in conjunction with Article 14 of the Convention. It considered that, while the policy of the Ministry of Defence together with the investigation and discharge which ensued, were undoubtedly distressing and humiliating for the applicants, the treatment did not reach, in the circumstances of the cases, the minimum level of severity which would bring it within the scope of Article 3 of the Convention.

The Court further considered in its Smith and Grady v. the United Kingdom judgment that it was not necessary to examine Ms Smith and Mr Grady’s complaints under Article 10 of the Convention, either alone or in conjunction with Article 14. It did not rule out that the policy of the Ministry of Defence could constitute an interference with the applicants’ freedom of expression. However, it noted that the sole ground for the investigation and discharge of the applicants was their sexual orientation which was “an essentially private manifestation of human personality” and it considered that the freedom of expression element of the present case was subsidiary to the applicants’ right to respect for their private lives which was principally at issue. Moreover, having reviewed the domestic remedies available to the applicants including judicial review proceedings, the Court found that the applicants had no effective remedy in relation to the violation of their right to respect for their private lives guaranteed by Article 8 of the Convention and that there had been, accordingly, a violation of Article 13 of the Convention.

The Court notes that the Government do not contest that, in bringing proceedings raising, inter alia , the applicability of the Equal Treatment Directive to a difference of treatment on grounds of sexual orientation, the applicants were exhausting their domestic remedies for the purposes of Article 35 § 1 of the Convention. Indeed it is noted that the Industrial Tribunal stayed those proceedings pending the outcome of the Perkins’ case then pending before the High Court in which the same question arose and rejected a Ministry of Defence application to the effect that the applications had no reasonable chance of success. Neither does the Government argue that the fact that the applicants withdrew their Industrial Tribunal proceedings in light of the judgment of the High Court of 13 July 1998 in the Perkins’ case amounted to a failure to exhaust their domestic remedies. It is further noted that the applications were introduced within six months of that High Court judgment. In such circumstances, the Court does not consider that the applications can be considered inadmissible by reason of a failure to comply with Article 35 § 1 of the Convention.

The Court further notes that the sexual orientation of the present applicants was investigated and that they were discharged from the armed forces on the sole ground of their homosexuality pursuant to the Ministry of Defence policy against the presence of homosexuals in the armed forces.

Accordingly, the Court considers that the applications raise serious issues under Articles 3, 8, 10, 13 and 14 of the Convention which require determination on the merits. It follows that these complaints cannot be dismissed as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATIONS ADMISSIBLE , without prejudging the merits of the case.

S. Dollé J.-P. Costa Registrar President