Dudgeon v United Kingdom

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.

Facts

Jeffrey Dudgeon was a shipping clerk and gay activist in Belfast, 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."

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 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.

See also

LGBT portal

• List of LGBT-related European Court of Human Rights cases
• Right to privacy
• Laskey, Jaggard and Brown v. United Kingdom
• 1981 in LGBT rights

Notes

External links and related literature

• "Full text of Dudgeon v. the United Kingdom (1981)". European Court of Human Rights HUDOC Portal. http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=695350&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649. Retrieved 2008-03-27. 
• Micheal T McLoughlin MA (December 1996). "Crystal or Glass?: A Review of Dudgeon v. United Kingdom on the Fifteenth Anniversary of the Decision". eLaw Journal (Murdoch: Murdoch University) 3 (4). http://www.murdoch.edu.au/elaw/issues/v3n4/mclough.html. Retrieved 2008-03-27. 
• 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.