CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 17 juillet 1986

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  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)