PARTIALLY DISSENTING OPINION OF JUDGE WALSH

Is the applicant a "victim" w ithin the meaning of Article 25 (art. 25)?

1. The law of Northern Ireland does not make homosexuality a crime nor does it make all homosexual activities criminal. The 1885 Act is the only one of the two legislative provisions attacked in these present proceedings that can be described as dealing solely with homosexual activities. The Act of 1885 makes criminal the commission of acts of gross indecency between male persons whether in private or in public. The provisions of the Act of 1861 which is also impugned by the applicant applies equally to heterosexual activities and homosexual activities. The applicant ’ s complaint is directed only towards the application of the provision of the 1861 Act to homosexual activities of the type mentioned in the section impugned. Of these, the Court is in reality concerned with but one, namely sodomy between male persons.

2. The Act of 1885 does not specifically designate any p articular acts of gross indecency but simply prohibits "gross indecency". Acts of indecency between male persons are not per se criminal offences but only such of them as amount to "gross indecency". What particular acts in any given case may be held to amount to gross indecency is a matter for the court, which means in effect the jury, to decide on the particular facts of each case.

3. The applicant did not claim t hat he had at any time indulged in any of the activities prohibited either by the law of 1861 or by the law of 1885, nor has he stated that he desires to indulge in them or that he intends to do so. In effect his case is that if he should choose to engage in any of the prohibited activities the effect of the law, if enforced, would be to violate the protection of his private life which is guaranteed by Article 8 (art. 8) of the Convention. In fact no action has been taken against him by the authorities under either of the legislative provisions referred to.

4. It is true that the police displayed an interest in the question of whether or not he had indulge d in homosexual activities. It is not known to the Court whether or not the activities in question constituted offences under either of the impugned legislative provisions. The documentary material which gave rise to this police interest came to light during the execution by the police of a search warrant issued pursuant to the laws which prohibit the misuse of drugs. The applicant was requested to accompany the police to the police station for the purpose, inter alia, of continuing inquiries into his suspected homosexual activities. The applicant voluntarily agreed to go to the police station. If he had been brought there against his will solely for the purpose of being interrogated about his alleged homosexual activities, he would have been the victim of false imprisonment and under the law of Northern Ireland he would have had an action for damages in the ordinary civil courts. So far as is disclosed by the evidence in the application, no such action has ever been brought or contemplated and it has not been suggested that the applicant ’ s visit to the police station was other than purely voluntary. It is common case that at the police station he was informed by the police that he was under no obligation to answer any questions or to make any statement. Notwithstanding this, the applicant voluntarily made a statement the contents of which have not been disclosed to the Court. The Court does not know whether the statement was incriminatory or exculpatory. No prosecution was ever instituted against the applicant either by the police or by the Director of Public Prosecutions in respect of any alleged illegal homosexual activities.

No question of the privacy of the applicant ’ s home being i nvaded arises as the entry to his house was carried out under a valid search warrant dealing with the abuse of drugs and no complaint has been made about the warrant or the entry. Some personal papers, including correspondence and diaries belonging to the applicant in which were described homosexual activities, were taken away by the police. The Court has not been informed whether the papers were irrelevant to the suspected drug offences being investigated and in respect of which there has been no complaint.

5. It is clear that the applica nt ’ s case is more in the nature of a "class action". In so far as he is personally concerned, it scarcely amounts to a quia timet action. Having suffered no prosecution himself he is in effect asking the Court to strike down two legislative provisions of a member State . The Court has no jurisdiction of a declaratory character in this area unrelated to an injury actually suffered or alleged to have been suffered by the applicant. In my view, if the Court were to under take any such competence in cases where the applicant has neither been a victim nor is imminently to be a victim, the consequences would be far-reaching in every member State .

6. In my opinion the applicant has not established that he is a victim within the meaning of Article 25 (art. 25) of the Convention and he is therefore not entitled to the ruling he seeks.

Alleged breach of Article 8 (art. 8)

7. If the applicant is to be re garded as being a victim within the meaning of Article 25 (art. 25), then the applicability of Article 8 (art. 8) to his case falls to be considered.

Paragraph 1 of Article 8 (art. 8 -1) provides that "everyone has the right to respect for his private and family life, his home and his correspondence". There is no suggestion that any point relating to family life arises in this case. Therefore the complaint is in reality one to a claim of right to indulge in any homosexual activities in the course of his private life and, presumably, in private.

8. The first matter to conside r is the meaning of paragraph 1 of Article 8 (art. 8-1). Perhaps the best and most succinct legal definition of privacy is that given by Warren and Brandeis – it is "the right to be let alone". The question is whether under Article 8 § 1 (art. 8-1), the right to respect for one ’ s private life is to be construed as being an absolute right irrespective of the nature of the activity whi ch is carried on as part of the private life and no interference with this right under any circumstances is permitted save within the terms of paragraph 2 of Article 8 (art. 8-2). This appears to be the interpretation put upon it by the Court in its judgment.

It is not essentially different to describe the "private life" protected by Article 8 § 1 (art. 8-1) as being confined to the private manifestation of the human personality. In any given case the human personality in question may in private life manifest dangerous or evil tendencies calculated to produce ill-effects upon himself or upon others. The Court does not appear to consider as a material factor that the manifestation in question may involve more than one person or participation by more than one person provided the manifestation can be characterised as an act of private life. If for the purposes of this case this assumption is to be accepted, one proceeds to the question of whether or not the interference complained of can be justified under paragraph 2 (art. 8-2). This in turn begs the question that under Article 8 (art. 8) the inseparable social dimensions of private life or "private morality" are limited to the confines of paragraph 2 of Article 8 (art. 8-2). It is beyond question that the interference, if there was such, was in accordance with the law. The question posed by paragraph 2 (art. 8-2) is whether the interference permitted by the law is necessary in a democratic society in the interests of the protection of health or morals or the rights and freedoms of others.

9. This raises the age-old ph ilosophical question of what is the purpose of law. Is there a realm of morality which is not the law ’ s business or is the law properly concerned with moral principles? In the context of United Kingdom jurisprudence and the true philosophy of law this debate in modern times has been between Professor H. L. A. Hart and Lord Devlin. Generally speaking the former accepts the philosophy propounded in the last century by John Stuart Mill while the latter contends that morality is properly the concern of the law. Lord Devlin argues that as the law exists for the protection of society it must not only protect the individual from injury, corruption and exploitation but it

"must protect also the instituti ons and the community of ideas, political and moral, without which people cannot live together. Society cannot ignore the morality of the individual any more than it can his loyalty; it flourishes on both and without either it dies".

He claims that the criminal law of England not only "has from the very first concerned itself with moral principles but continues to concern itself with moral principles". Among the offences which he pointed to as having been brought within the criminal law on the basis of moral principle, notwithstanding that it could be argued that they do not endanger the public, were euthanasia, the killing of another at his own request, suicide pacts, duelling, abortion, incest between brother and sister. These are acts which he viewed as ones which could be done in private and without offence to others and need not involve the corruption or exploitation of others. Yet, as he pointed out, no one has gone so far as to suggest that they should all be left outside the criminal law as matters of private morality.

10. It would appear that the United Kingdom does claim that in principle it can legislate against immorality. In modern United Kingdom legislation a number of penal statutes appear to be based upon moral principles and the function of these penal sanctions is to enforce moral principles. Cruelty to animals is illegal because of a moral condemnation of enjoyment derived from the infliction of pain upon sentient creatures. The laws restricting or preventing gambling are concerned with the ethical significance of gambling which is confined to the effect that it may have on the character of the gambler as a member of society. The legislation against racial discrimination has as its object the shaping of people ’ s moral thinking by legal sanctions and the changing of human behaviour by having the authority to punish.

11. The opposite view, traceable in E nglish jurisprudence to John Stuart Mill, is that the law should not intervene in matters of private moral conduct more than necessary to preserve public order and to protect citizens against what is injurious and offensive and that there is a sphere of moral conduct which is best left to individual conscience just as if it were equitable to liberty of thought or belief. The recommendations of the Wolfenden Committee relied partly upon this view to favour the non-intervention of the law in case of homosexual activities between consenting adult males. On this aspect of the matter the Wolfenden Committee stated:

"There remains one additional count er-argument which we believe to be decisive, namely, the importance which society and the law ought to give to individual freedom of choice in action in matters of private morality. Unless a deliberate attempt is to be made by society, acting through the agency of the law, to equate the sphere of crime with that of sin, there must remain a realm of private morality and immorality which is, in brief and crude terms, not the law ’ s business. To say this is not to condone or encourage private immorality."

This aspect of the Wofenden Committ ee ’ s report apparently commends itself to the Court (see paragraphs 60 and 61 of the judgment).

12. The Court also agrees with the conclusion in the Wolfenden Report to the effect that there is a necessity for some degree of control even in respect of consensual acts committed in private notably where there is a call "to provide sufficient safeguards against exploitation and corruption of others, particularly those who are especially vulnerable because they are young, weak in body or mind, inexperienced, or in a state of special physical, official or economic dependence" (paragraph 49 of the judgment). Furthermore, the Court accepts that some form of legislation is necessary to protect not only particular sections of society but also the moral ethos of society as a whole (ibid.). However, experience has shown that exploitation and corruption of others is not confined to persons who are young, weak in body or mind or inexperienced or in a state of physical, moral or economic dependence.

13. The fact that a person consents to take part in the commission of homosexual acts is not proof that such person is sexually orientated by nature in that direction. A distinction must be drawn between homosexuals who are such because of some kind of innate instinct or pathological constitution judged to be incurable and those whose tendency comes from a lack of normal sexual development or from habit or from experience or from other similar causes but whose tendency is not incurable. So far as the incurable category is concerned, the activities must be regarded as abnormalities or even as handicaps and treated with the compassion and tolerance which is required to prevent those persons from being victimised in respect of tendencies over which they have no control and for which they are not personally responsible. However, other considerations are raised when these tendencies are translated into activities. The corruption for which the Court acknowledges need for control and the protection of the moral ethos of the community referred to by the Court may be closely associated with the translation of such tendencies into activities. Even assuming one of the two persons involved has the incurable tendency, the other may not. It is known that many male persons who are heterosexual or pansexual indulge in these activities not because of any incurable tendency but for sexual excitement. However, it is to be acknowledged that the case for the applicant was argued on the basis of the position of a male person who is by nature homosexually predisposed or orientated. The Court, in the absence of evidence to the contrary, has accepted this as the basis of the applicant ’ s case and in its judgment rules only in respect of males who are so homosexually orientated (see, for example, paragraphs 32, 41 and 60 of the judgment).

14. If it is accepted that the State has a valid interest in the prevention of corruption and in the preservation of the moral ethos of its society, then the State has a right to enact such laws as it may reasonably think necessary to achieve these objects. The rule of law itself depends on a moral consensus in the community and in a democracy the law cannot afford to ignore the moral consensus of the community, whether by being either too far below it or too far above it, the law is brought into contempt. Virtue cannot be legislated into existence but non-v irtue can be if the legislation renders excessively difficult the struggle after virtue. Such a situation can have an eroding effect on the moral ethos of the community in question. The ultimate justification of law is that it serves moral ends. It is true that many forms of immorality which can have a corrupting effect are not the subject of prohibitory or penal legislation. However such omissions do not imply a denial of the possibility of corruption or of the erosion of the moral ethos of the community but acknowledge the practical impossibility of legislating effectively for every area of immorality. Where such legislation is enacted it is a reflection of the concern of the "prudent legislator".

Moreover, it must not be overlo oked that much of the basis of the Wolfenden Committee ’ s recommendation that homosexual relations between adult males should be decriminalised was the belief that the law was difficult to enforce and that when enforced was likely to do more harm than good by encouraging other evils such as blackmail. This is obviously not necessarily of universal validity. The relevant conditions may vary from one community to another. Experience also shows that certain sexual activities which are not in themselves contraventions of the criminal law can also be fruitful subjects for blackmail when they offend the moral ethos of the community, e.g. adultery, female homosexuality and, even, where it is not illegal, male homosexuality.

15. Sexual morality is only one part o f the total area of morality and a question which cannot be avoided is whether sexual morality is "only private morality" or whether it has an inseparable social dimension. Sexual behaviour is determined more by cultural influences than by instinctive needs. Cultural trends and expectations can create drives mistakenly thought to be intrinsic instinctual urges. The legal arrangement and prescriptions set up to regulate sexual behaviour are very important formative factors in the shaping of cultural and social institutions.

16. In my view, the Court ’ s ref erence to the fact that in most countries in the Council of Europe homosexual acts in private between adults are no longer criminal (paragraph 60 of the judgment) does not really advance the argument. The twenty-one countries making up the Council of Europe extend geographically from Turkey to Iceland and from the Mediterranean to the Arctic Circle and encompass considerable diversities of culture and moral values. The Court states that it cannot overlook the marked changes which have occurred in the laws regarding homosexual behaviour throughout the member States (ibid.) It would be unfortunate if this should lead to the erroneous inference that a Euro-norm in the law concerning homosexual practices has been or can be evolved.

17. Religious beliefs in Northern Ireland are very firmly held and directly influence the views and outlook of the vast majority of persons in Northern Ireland on questions of sexual morality. In so far as male homosexuality is concerned, and in particular sodomy, this attitude to sexual morality may appear to set the people of Northern Ireland apart from many people in other communities in Europe, but whether that fact constitutes a failing is, to say the least, debatable. Such view s on unnatural sexual practices do not differ materially from those which throughout history conditioned the moral ethos of the Jewish, Christian and Muslim cultures.

18. The criminal law at no time has been uniform throughout the several legal systems within the United Kingdom . The Court recognises that where there are disparate cultural communities residing within the same State it may well be that different requirements, both moral and social, will face the governing authorities (paragraph 56 of the judgment). The Court also recognises that the contested measures must be seen in the context of Northern Ireland society (ibid.). The United Kingdom Government, having responsibility for statutory changes in any of the legal systems which operate within the United Kingdom, sounded out opinion in Northern Ireland on this question of changing the law in respect of homosexual offences. While it is possible that the United Kingdom Government may have been mistaken in its assessment of the effect the sought-after change in the law would have on the community in Northern Ireland , nevertheless it is in as good, if not a better, position than is the Court to assess that situation. Criminal sanctions may not be the most desirable way of dealing with the situation but again that has to be assessed in the light of the conditions actually prevailing in Northern Ireland . In all cultures matters of sexual morality are particularly sensitive ones and the effects of certain forms of sexual immorality are not as susceptible of the same precise objective assessment that is possible in matters such as torture or degrading and inhuman treatment. To that extent the Court ’ s reference in its judgment (paragraph 60) to Tyrer ’ s case is not really persuasive in the present case. It is respectfully suggested that the Marckx judgment is not really relevant in the present case as that concerned the position of an illegitimate child whose own actions were not in any way in question.

19. Even if it should be thought, and I do not so think, tha t the people of Northern Ireland are more "backward" than the other societies within the Council of Europe because of their attitude towards homosexual practices, that is very much a value judgment which d epends totally upon the initial premise. It is difficult to gauge what would be the effect on society in Northern Ireland if the law were now to permit (even with safeguards for young people and people in need of protection) homosexual practices of the type at present forbidden by law. I venture the view that the Government concerned, having examined the position, is in a better position to evaluate that than this Court, particularly as the Court admits the competence of the State to legislate in this matter but queries the proportionality of the consequences of the legislation in force.

20. The law has a role in inf luencing moral attitudes and if the respondent Government is of the opinion that the change sought in the legislation would have a damaging effect on moral attitudes then in my view it is entitled to maintain the legislation it has. The judgment of the Court does not constitute a declaration to the effect that the particular homosexual practices which are subject to penalty by the legislation in question virtually amount to fundamental human rights. However, that will not prevent it being hailed as such by those who seek to blur the essential difference between homosexual and heterosexual activities.

21. Even the Wolfenden Report felt that one of the functions of the criminal law was to preser ve public order and decency and to provide sufficient safeguards against the exploitation and corruption of others and therefore recommended that it should continue to be an offence "for a third party to procure or attempt to procure an act of gross indecency between male persons whether or not the act to be procured c onstitutes a criminal offence". Adults, even consenting adults, can be corrupted and may be exploited by reason of their own weaknesses. In my view this is an area in which the legislature has a wide discr etion or margin of appreciation which should not be encroached upon save where it is clear beyond doubt that the legislation is such that no reasonable community could enact. In my view no such proof has been established in this case.

22. In the United States of America there has been considerable litigation concerning the question of privacy and the guarantees as to privacy enshrined in the Constitution of the United States . The United States Supreme Court and other United States courts have upheld the right of privacy of married couples against legislation which sought to control sexual activities within marriage, including sodomy. However, these courts have refused to extend the constitutional guarantee of privacy which is available to married couples to homosexual activities or to heterosexual sodomy outside marriage. The effect of this is that the public policy upholds as virtually absolute privacy within marriage and privacy of sexual activity within the marriage.

It is a valid approach to hold that, a s the family is the fundamental unit group of society, the interests of marital privacy would normally be superior to the State ’ s interest in the pursuit of certain sexual activities which would in themselves be regarded as immoral and calculated to corrupt. Outside marriage there is no such compelling interest of privacy which by its nature ought to prevail in respect of such activities.

23. It is to be noted that Article 8 § 1 (art. 8-1) of the Convention speaks of "private and family life". If the ejusdem generis rule is to be applied, then the provision should be interpreted as relating to private life in that context as, for example, the right to raise one ’ s children according to one ’ s own philosophical and religious tenets and generally to pursue without interference the activities which are akin to those pursued in the privacy of family life and as such are in the course of ordinary human and fundamental rights. No such claim can be made for homosexual practices.

24. In my opinion there has been no breach of Article 8 (art. 8) of the Convention.

Article 14 (art. 14)

25. I agree with the judg ment of the Court in respect of Article 14 (art. 14).