Dudgeon v. United Kingdom
Encyclopedia
Dudgeon v the United Kingdom was a European Court of Human Rights
(ECtHR) case, which held that legislation passed in the nineteenth century to criminalise male homosexual acts in England, Wales and Ireland - in 1980, still in force in Northern Ireland - violated the European Convention on Human Rights
. The case was significant, 1) as the first successful case before the ECHR on the criminalisation of male homosexuality; 2) as the case which, in 1982, made the law on male homosexuality in Northern Ireland the same as it was in Scotland (since 1980) and in England and Wales (since 1967); 3) as a lead-in to Norris v. Ireland
, a later case before the ECHR argued by Mary Robinson
, which challenged the continued application of the same nineteenth century law in the Republic of Ireland
; and, 4) for setting the legal precedent that ultimately resulted in the Council of Europe
requiring that no member state could criminalise male or female homosexual behaviour.
, Northern Ireland
, when he was interrogated by the Royal Ulster Constabulary
about his sexual activities. He filed a complaint with the European Commission of Human Rights
in 1975, which after a hearing in 1979 declared his complaint admissible to the European Court of Human Rights. The Court hearing was in April 1981 before a full panel of 19 judges. Dudgeon was represented by barristers Lord Gifford, Terry Munyard and solicitor Paul Crane.
On 22 October 1981, the Court agreed with the Commission that Northern Ireland's criminalisation of homosexual acts between consenting adults was a violation of Article 8 of the European Convention on Human Rights
which says: “Everyone has the right to respect for his private and family life, his home and his correspondence. 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 …for the protection of health or morals...” Judgement was given in Dudgeon's favour on that aspect by 15 votes to 4.
It stated the “restriction imposed on Mr. Dudgeon under Northern Ireland law, by reason of its breadth and absolute character, is, quite apart from the severity of the possible penalties provided for, disproportionate to the aims sought to be achieved.” However, the ruling continued, "it was for countries to fix for themselves...any appropriate extension of the age of consent
in relation to such conduct."
As a consequence of the judgement, male homosexual sex was decriminalised in Northern Ireland in October 1982. Female homosexual behaviour was never criminal anywhere in the United Kingdom.
The MPs from Northern Ireland who voted on the proposed decriminalising Order were universally opposed, including Gerry Fitt of the SDLP, and Enoch Powell who opposed on the basis of the legislation being in the form of an Order in Council and externally imposed. Just after his death, he was reported as having had a significant homosexual friendship while a university student about which he had written several poems.(See Times letter from Canon Eric James, 'Hidden nature of Powell's first love', 10 February 1998.) James Kilfedder, the Unionist MP for North Down abstained. He was to die of a heart attack in 1995, the very day Outrage was reported in the Belfast Telegraph as being about to out a gay Unionist MP.
In the Article 50 settlement of 24 February 1983, no damages were awarded, the verdict being seen as sufficient reward for the hurt and pain suffered. Costs of £3,315 were awarded towards Dudgeon's legal fees but he was denied the remaining £1,290 because of a view by the Court that his then lawyers were operating on a contingency basis. Three of the five judges who voted against him on the main case and the British judge constituted a majority of the seven judges on the settlement court panel.
Male homosexual behaviour was previously decriminalised in England
and Wales
in 1967, in Scotland
in 1980, and in Northern Ireland
in 1982. It remained illegal in neighbouring Republic of Ireland
, however until 1993, following the ECHR decision in Norris v. Ireland
(1988), for which Dudgeon was the keystone precedent. This occurred later in the Alexander Modinos case when the Cyprus law was also found to be in violation of the Convention.
Dudgeon v. United Kingdom was cited by Justice Anthony Kennedy
in his 2003 opinion in the Lawrence v. Texas
decision of the Supreme Court of the United States
.
European Court of Human Rights
The European Court of Human Rights in Strasbourg is a supra-national court established by the European Convention on Human Rights and hears complaints that a contracting state has violated the human rights enshrined in the Convention and its protocols. Complaints can be brought by individuals or...
(ECtHR) case, which held that legislation passed in the nineteenth century to criminalise male homosexual acts in England, Wales and Ireland - in 1980, still in force in Northern Ireland - violated the European Convention on Human Rights
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...
. The case was significant, 1) as the first successful case before the ECHR on the criminalisation of male homosexuality; 2) as the case which, in 1982, made the law on male homosexuality in Northern Ireland the same as it was in Scotland (since 1980) and in England and Wales (since 1967); 3) as a lead-in to Norris v. Ireland
Norris v. Ireland
Norris v. Ireland was a 1988 case decided by the European Court of Human Rights. The case was brought against the Republic of Ireland by Senator David Norris, and his Senior Counsel was fellow member of the Campaign for Homosexual Law Reform, Mary Robinson, who later became the first female...
, a later case before the ECHR argued by Mary Robinson
Mary Robinson
Mary Therese Winifred Robinson served as the seventh, and first female, President of Ireland from 1990 to 1997, and the United Nations High Commissioner for Human Rights, from 1997 to 2002. She first rose to prominence as an academic, barrister, campaigner and member of the Irish Senate...
, which challenged the continued application of the same nineteenth century law in the Republic of Ireland
Republic of Ireland
Ireland , described as the Republic of Ireland , is a sovereign state in Europe occupying approximately five-sixths of the island of the same name. Its capital is Dublin. Ireland, which had a population of 4.58 million in 2011, is a constitutional republic governed as a parliamentary democracy,...
; and, 4) for setting the legal precedent that ultimately resulted in the Council of Europe
Council of Europe
The Council of Europe is an international organisation promoting co-operation between all countries of Europe in the areas of legal standards, human rights, democratic development, the rule of law and cultural co-operation...
requiring that no member state could criminalise male or female homosexual behaviour.
Facts
Jeffrey Dudgeon was a shipping clerk and gay activist in BelfastBelfast
Belfast is the capital of and largest city in Northern Ireland. By population, it is the 14th biggest city in the United Kingdom and second biggest on the island of Ireland . It is the seat of the devolved government and legislative Northern Ireland Assembly...
, Northern Ireland
Northern Ireland
Northern Ireland is one of the four countries of the United Kingdom. Situated in the north-east of the island of Ireland, it shares a border with the Republic of Ireland to the south and west...
, when he was interrogated by the Royal Ulster Constabulary
Royal Ulster Constabulary
The Royal Ulster Constabulary was the name of the police force in Northern Ireland from 1922 to 2000. Following the awarding of the George Cross in 2000, it was subsequently known as the Royal Ulster Constabulary GC. It was founded on 1 June 1922 out of the Royal Irish Constabulary...
about his sexual activities. He filed a complaint with the European Commission of Human Rights
European Commission of Human Rights
European Commission of Human Rights was a special tribunal.From 1954 to the entry into force of Protocol 11 of the European Convention on Human Rights, individuals did not have direct access to the European Court of Human Rights; they had to apply to the Commission, which if it found the case to be...
in 1975, which after a hearing in 1979 declared his complaint admissible to the European Court of Human Rights. The Court hearing was in April 1981 before a full panel of 19 judges. Dudgeon was represented by barristers Lord Gifford, Terry Munyard and solicitor Paul Crane.
On 22 October 1981, the Court agreed with the Commission that Northern Ireland's criminalisation of homosexual acts between consenting adults was a violation of Article 8 of the European Convention on Human Rights
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...
which says: “Everyone has the right to respect for his private and family life, his home and his correspondence. 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 …for the protection of health or morals...” Judgement was given in Dudgeon's favour on that aspect by 15 votes to 4.
It stated the “restriction imposed on Mr. Dudgeon under Northern Ireland law, by reason of its breadth and absolute character, is, quite apart from the severity of the possible penalties provided for, disproportionate to the aims sought to be achieved.” However, the ruling continued, "it was for countries to fix for themselves...any appropriate extension of the age of consent
Age of consent
While the phrase age of consent typically does not appear in legal statutes, when used in relation to sexual activity, the age of consent is the minimum age at which a person is considered to be legally competent to consent to sexual acts. The European Union calls it the legal age for sexual...
in relation to such conduct."
Judgment
The Court held by 14 votes to 5 that it was not necessary also to examine the case under Article 14 taken in conjunction with Article 8 which would otherwise have meant considering the aspect of discrimination. It stated that “once it has been held that the restriction on the applicant’s right to respect for his private sexual life give rise to a breach of Article 8 by reason of its breadth and absolute character, there is no useful legal purpose to be served in determining whether he has in addition suffered discrimination as compared with other persons.” Minority opinions were written on both aspects.Significance
This was the first successful gay case at the European Court of Human Rights. It was only the thirty-fifth case judged by the Court, and the fifth violation found against the UK. There have been upwards of ten thousand more cases judged at Strasbourg.As a consequence of the judgement, male homosexual sex was decriminalised in Northern Ireland in October 1982. Female homosexual behaviour was never criminal anywhere in the United Kingdom.
The MPs from Northern Ireland who voted on the proposed decriminalising Order were universally opposed, including Gerry Fitt of the SDLP, and Enoch Powell who opposed on the basis of the legislation being in the form of an Order in Council and externally imposed. Just after his death, he was reported as having had a significant homosexual friendship while a university student about which he had written several poems.(See Times letter from Canon Eric James, 'Hidden nature of Powell's first love', 10 February 1998.) James Kilfedder, the Unionist MP for North Down abstained. He was to die of a heart attack in 1995, the very day Outrage was reported in the Belfast Telegraph as being about to out a gay Unionist MP.
In the Article 50 settlement of 24 February 1983, no damages were awarded, the verdict being seen as sufficient reward for the hurt and pain suffered. Costs of £3,315 were awarded towards Dudgeon's legal fees but he was denied the remaining £1,290 because of a view by the Court that his then lawyers were operating on a contingency basis. Three of the five judges who voted against him on the main case and the British judge constituted a majority of the seven judges on the settlement court panel.
Male homosexual behaviour was previously decriminalised in England
England
England is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...
and Wales
Wales
Wales is a country that is part of the United Kingdom and the island of Great Britain, bordered by England to its east and the Atlantic Ocean and Irish Sea to its west. It has a population of three million, and a total area of 20,779 km²...
in 1967, in Scotland
Scotland
Scotland is a country that is part of the United Kingdom. Occupying the northern third of the island of Great Britain, it shares a border with England to the south and is bounded by the North Sea to the east, the Atlantic Ocean to the north and west, and the North Channel and Irish Sea to the...
in 1980, and in Northern Ireland
Northern Ireland
Northern Ireland is one of the four countries of the United Kingdom. Situated in the north-east of the island of Ireland, it shares a border with the Republic of Ireland to the south and west...
in 1982. It remained illegal in neighbouring Republic of Ireland
Republic of Ireland
Ireland , described as the Republic of Ireland , is a sovereign state in Europe occupying approximately five-sixths of the island of the same name. Its capital is Dublin. Ireland, which had a population of 4.58 million in 2011, is a constitutional republic governed as a parliamentary democracy,...
, however until 1993, following the ECHR decision in Norris v. Ireland
Norris v. Ireland
Norris v. Ireland was a 1988 case decided by the European Court of Human Rights. The case was brought against the Republic of Ireland by Senator David Norris, and his Senior Counsel was fellow member of the Campaign for Homosexual Law Reform, Mary Robinson, who later became the first female...
(1988), for which Dudgeon was the keystone precedent. This occurred later in the Alexander Modinos case when the Cyprus law was also found to be in violation of the Convention.
Dudgeon v. United Kingdom was cited by Justice Anthony Kennedy
Anthony Kennedy
Anthony McLeod Kennedy is an Associate Justice of the United States Supreme Court, having been appointed by President Ronald Reagan in 1988. Since the retirement of Sandra Day O'Connor, Kennedy has often been the swing vote on many of the Court's politically charged 5–4 decisions...
in his 2003 opinion in the Lawrence v. Texas
Lawrence v. Texas
Lawrence v. Texas, 539 U.S. 558 , is a landmark United States Supreme Court case. In the 6-3 ruling, the Court struck down the sodomy law in Texas and, by proxy, invalidated sodomy laws in the thirteen other states where they remained in existence, thereby making same-sex sexual activity legal in...
decision of the Supreme Court of the United States
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
.
See also
- List of LGBT-related European Court of Human Rights cases
- Right to privacy
- Laskey, Jaggard and Brown v. United Kingdom
- 1981 in LGBT rights
External links and related literature
- A people's history of the European Court of Human Rights, Michael D Goldhaber, Rutgers University Press, New Jersey, 2007. Chapter 3 'Gay in a Time of Troubles'.
- Human Rights Advocacy Stories, Foundation Press, New York, 2009, Chapter 3 'The Stories of Dudgeon and Toonen: Personal Struggles to Legalize Sexual Identities', Mark Bromley and Kristen Walker.