CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 19 janvier 1995

.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 }                            Application No. 22382/93                       by Ralph WILDE, Hugo GREENHALGH and                          William PARRY                       against the United Kingdom        The European Commission of Human Rights sitting in private on 19 January 1995, the following members being present:              MM.    C.A. NØRGAARD, President                  H. DANELIUS                  C.L. ROZAKIS                  E. BUSUTTIL                  G. JÖRUNDSSON                  S. TRECHSEL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H.G. SCHERMERS            Mrs.   G.H. THUNE            Mr.    F. MARTINEZ            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  D. SVÁBY                  E. KONSTANTINOV                  G. RESS              Mr.    H.C. KRÜGER, Secretary to the Commission        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 5 April 1993 by Ralph WILDE, Hugo GREENHALGH and William PARRY against the United Kingdom and registered on 29 July 1993 under file No. 22382/93;        Having regard to :   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on      28 March 1994 and the observations in reply submitted by the      applicant on 29 June 1994;   -     the Government's further submissions of 10 November 1994;        Having deliberated;        Decides as follows:   THE FACTS        The applicants are three homosexual men.   The first applicant was born in 1973 and lives and studies in London.   The second applicant, also born in 1973, is of English origin and is a student in Edinburgh, in Scotland.   Whilst in Edinburgh, the second applicant met and began a relationship with the third applicant, who was born in 1968 and works in London.   The applicants are represented by Ms. Angela Mason, of Stonewall, a non-governmental organisation which works for lesbian and gay equality, and Mr. Peter Duffy, a barrister in London.   The facts of the application may be summarised as follows.   The particular circumstances of the case        The first applicant suffered a homophobic attack in the village where he lived in the winter of 1991.   He was attacked in the early evening by a group of young boys and, when the police answered a telephone call he had been able to put through, he did not dare tell them that he had been attacked because he was gay.   Since the incident he has felt upset and vulnerable.   He considers that the higher age of consent for male homosexuals which is meant to protect young men like himself actually made him more vulnerable to physical attack and inhibited him from cooperating with the police to apprehend his attackers.        The second and third applicants met in February 1992.   On 23 April 1993 they were leaving a fair in Edinburgh when a group of boys aged fifteen and sixteen started hitting them and shouting abuse, calling them "queers", "poofs" and "cock suckers".   One of them pulled the third applicant to the ground and kicked him in the face.   When the second applicant tried to defend him, they picked on him.   The second applicant's mouth was cut and he had several stitches.   The third applicant was very shocked and had severe bruising on his face and body.   The second and third applicants, too, feel that far from protecting young men, the criminalisation of homosexual activity for people of their age creates a climate of hostility to homosexual men.        On 20 May 1993 the second applicant took part in a radio discussion in which he referred to his sexual relationship with the third applicant.   A member of the public has since written to the Director of Public Prosecutions to ask for criminal proceedings to be brought.   The BBC have confirmed that the police asked for a copy of the programme.   The applicants were then interviewed by the police on 21 July 1993.   It appears that proceedings were not ultimately brought against them.   The relevant domestic law   (i) England        Section 12(1) of the Sexual Offences Act 1956 ("the 1956 Act") makes it an offence to commit buggery with another person.   Consent is not a defence.   Section 13 of the 1956 Act makes it an offence for a man to commit an act of "gross indecency" with another man.   Section 1 of the Sexual Offences Act 1967 ("the 1967 Act") provided that buggery and acts of gross indecency in private between consenting males aged twenty-one or over should not be criminal offences.        In   England and Wales, the consent of the Director of Public Prosecutions was required for criminal proceedings in relation to homosexual acts "where either of those men was at the time of its commission under the age of 21" (Section 8 of the 1967 Act). Prosecutions were brought, however, and in 1990 455 prosecutions gave rise to 342 convictions.   In 1991 213 prosecutions gave rise to 169 convictions.        The Policy Advisory Committee on Sexual Offences, reporting to the Home Secretary in 1981, recommended that the minimum age for homosexual relations between men should be reduced to 18.   The Committee accepted that the sexual pattern of the overwhelming majority of young men is fixed by the age of 18, and that whilst young men of between 16 and 18 could still benefit from the protection of the criminal law, by the age of 18 the overwhelming majority of young men are mature enough to assume the responsibility of deciding their reaction to homosexual advances.   A minority of the Committee considered that the minimum age should be reduced to 16.        The Criminal Justice and Public Order Act 1994 replaced the word "twenty-one" in Section 1 of the Sexual Offences Act 1967 with the word "eighteen".   The Act entered into force on 3 November 1994.   (ii)   Scotland        The substantive law in Scotland is similar to that in England and Wales and is contained largely in the Criminal Justice (Scotland) Act 1980.   The common law also provides a range of crimes.        A Crown Office Circular of November 1991 indicated that the public interest was not served by routinely prosecuting all persons who participated in unlawful homosexual acts.   The circular was succeeded in December 1991 by a Circular which stated:        "Where both of the participants are over 18 years but one or both      are under 21 years and the act has taken place in private and      where there are circumstances pointing to exploitation,      corruption, or breach of trust, prosecution would be      appropriate."        The Criminal Justice and Public Order Act 1994 also reduced the minimum age for homosexual acts in Scotland from 21 to 18.   COMPLAINTS        The applicants allege violations of Articles 8 and 14 of the Convention.        The applicants acknowledge that the Commission has had occasion to consider the age of consent for male homosexual activities in the United Kingdom in the case of X v. the United Kingdom (No. 7215/75, Comm. Rep. 12.10.78, D.R. 19 p. 66).   They consider, however, that attitudes have changed fundamentally since then, and point inter alia to the report of the Policy Advisory Committee of 1981, to the fact that the first and second applicants are deemed adult for all purposes in the United Kingdom except applying for a Heavy Goods Vehicle Driving Licence and for standing as a Member of Parliament, to the fact that the United Kingdom now has the highest homosexual age of consent in Europe, and to the fact that the World Health Organisation has removed homosexuality from the international list of diseases.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 5 April 1993 and registered on 29 July 1993.        On 17 January 1994 the Commission decided to communicate the application to the respondent Government and to request the parties to submit their observations on the admissibility and merits of the application.        The Government submitted their observations on 28 March 1994 and the applicants submitted their observations in reply on 29 June 1994. On 10 November 1994 the Government informed the Commission that the Criminal Justice and Public Order Act 1994 had entered into force on 3 November 1994, and requested the Commission to strike the application off its list of cases.   REASONS FOR THE DECISION        The applicants allege a violation of Articles 8 and 14 of the Convention by virtue of legislation which prohibited buggery or acts of gross indecency except those which took place in private between males aged 21 or over.   They consider that, given their particular relationship and ages, this legislation constituted a disproportionate interference with their private lives, and that it was in no way justified on any of the grounds set out in Article 8 para. 2 of the Convention.   They see the difference in the age of consent for homosexual relations as it applied to them as in violation of Article 14 of the Convention.   They accept that the minimum age has now been reduced to 18, but consider that for the period whilst the first and second applicants were under 21 and the old legislation was in force, they remain victims of these alleged violations.        Article 8 of the Convention provides as follows:        "1.    Everyone has the right to respect for his private and      family life, his home and his correspondence.        2.     There shall be no interference by a public authority with      the exercise of this right except such as is in accordance with      the law and is necessary in a democratic society in the interests      of national security, public safety or the economic well-being      of the country, for the prevention of disorder or crime, for the      protection of health or morals, or for the protection of the      rights and freedoms of others."        Article 14 of the Convention provides as follows:        "The enjoyment of the rights and freedoms set forth in this      Convention shall be secured without discrimination on any ground      such as sex, race, colour, language, religion, political or other      opinion, national or social origin, association with a national      minority, property, birth or other status."        The Government submit that the applicants are not victims of any alleged violations of the Convention as the Criminal Justice and Public Order Act 1994 has now entered into force and the minimum age for homosexual acts has been reduced from 21 to 18.   They have formally invited the Commission to strike the application out of its list of cases under Article 30 para. 1 (b) or (c) of the Convention.   In connection with the substantive issues in the case, the Government consider that a minimum age of 18 for homosexual acts is in any event in conformity with Articles 8 and 14 of the Convention, but do not accept that a minimum age of 21 is in breach of Articles 8 and 14.        The Government have requested the Commission to find that the applicants are no longer victims of the violations of the Convention they allege, and to strike the application out of its list of cases. Article 30 para. 1 of the Convention provides, so far as relevant, as follows:        "The Commission may at any stage of the proceedings decide to      strike a petition out of its list of cases where the      circumstances lead to the conclusion that:        ...      (b)    the matter has been resolved, or        (c)    for any other reason established by the Commission, it is      no longer justified to continue the examination of the petition.        However, the Commission shall continue the examination of a      petition if respect for human rights as defined in this      Convention so requires."        The Commission finds that the aim of the applicants in bringing the present application was to have a reduction of the minimum age for homosexual acts from 21 to 18.   It regards the incidents they cite of homophobic behaviour as arguments in support of their having capacity to claim to be victims of the state of the law complained of, rather than specific complaints of alleged violations of the Convention.        The Commission next notes that the Criminal Justice and Public Order Act 1994, which reduced the age for consensual homosexual acts from 21 to 18, entered into force on 3 November 1994.   The age was not reduced to 16, as Stonewall (the non-governmental organisation for which one of the applicants' representatives works) had wished.        Given that the thrust of the present application is to challenge the age limit of 21 for homosexual acts in the context of males aged 18 and over, the Commission finds that the entry into force of the relevant parts of the Criminal Justice and Public Order Act 1994 on 3 November 1994 has resolved the matter within the meaning of Article 30 para. 1 (b) of the Convention.   Questions concerning a minimum age of 16 for engaging in homosexual acts are not affected by this finding.        The Commission also finds no reasons within the meaning of the final sentence of Article 30 para. 1 which could require the Commission to continue the examination of the application.        It follows that the application must be struck off the Commission's list of cases in accordance with Article 30 para. 1 of the Convention.        For these reasons, the Commission unanimously         DECIDES TO STRIKE THE APPLICATION OFF ITS LIST OF CASES.   Secretary to the Commission              President of the Commission        (H. C. KRÜGER)                             (C.A. NØRGAARD)