Dudgeon v United Kingdom
This article includes a list of generalreferences,butit lacks sufficient correspondinginline citations.(May 2009) |
Dudgeon v United Kingdom | |
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Decided 22 October 1981 | |
Full case name | Dudgeon v United Kingdom |
Chamber | Grand Chamber |
Language of proceedings | English |
Nationality of parties | British |
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Dudgeon v United Kingdom(1981) was aEuropean Court of Human Rights(ECtHR) case, which held thatSection 11of theCriminal Law Amendment Act 1885,which criminalised male homosexual acts in England, Wales and Northern Ireland, breached the defendant's rights under Article 8 of theEuropean Convention on Human Rights.[1]
The case was significant
- as the first successful case before the ECtHR on the criminalisation of male homosexuality;
- as the case which led to legislation in 1982 bringing the law on male homosexuality in Northern Ireland into line with that in Scotland (since 1980) and in England and Wales (since 1967);
- as a lead-in toNorris v. Ireland,a later case before the ECtHR argued byMary Robinson,which challenged the continued application of the same 1885 law in theRepublic of Ireland;and
- for setting the legal precedent that ultimately resulted in theCouncil of Europerequiring that no member state could criminalise male or female homosexual behaviour.
Facts
[edit]Jeff Dudgeonwas a shipping clerk and gay activist inBelfast,Northern Ireland,when he was interrogated by theRoyal Ulster Constabularyabout his sexual activities. He filed a complaint with theEuropean Commission of Human Rightsin 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 barristersLord Gifford,Terry Munyard, and solicitor Paul Crane.
Judgment
[edit]On 22 October 1981, the Court agreed with the Commission that Northern Ireland's criminalisation of homosexual acts between consenting adults was a violation ofArticle 8 of the European Convention on Human Rightswhich 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 isnecessary in a democratic society... for the protection of health or morals ". Judgment 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 theage of consentin relation to such conduct. "
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
[edit]This was the first case at the European Court of Human Rights to be decided in favour of LGBT 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 judgment, male homosexual sex wasdecriminalisedin 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.
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.
A Freedom of Information Request later revealed a note from a Conservative minister from that time, saying, "Put this to one side; Strasbourg will do the needful." This implied that although sympathetic to Dudgeon's case, the UK government preferred using the European Court of Human Rights to change the law in Northern Ireland rather than intervene itself.[2]
The same provision of the 1885 Act was still in force in theRepublic of Ireland,and upheld by theSupreme Court of Irelandin 1983.Norris v. Ireland(1988), successfully challenged this in the ECtHR, withDudgeonserving as the key precedent. This led to decriminalisation in the Republic of Ireland in 1993. It was similarly followed inModinos v. Cyprus(1993), finding an equivalent law to be a violation.
Dudgeon v. United Kingdomwas cited by JusticeAnthony KennedyinLawrence v. Texas(2003), theUS Supreme Courtdecision which found anti-sodomy laws in 14 remaining states to be unconstitutional.
See also
[edit]- LGBT rights in Northern Ireland
- List of LGBT-related cases before international courts and quasi-judicial bodies
- Privacy law
- Laskey, Jaggard and Brown v United Kingdom
- Smith and Grady v United Kingdom
- Sutherland v United Kingdom
- 1981 in LGBT rights
Notes
[edit]- ^"Man persecuted for his sexuality wins landmark judgment – transforming the law in Northern Ireland and beyond".Council of Europe.Retrieved3 March2024.
- ^Meredith, Fiona (21 February 2015)."Jeffrey Dudgeon: 'A reformer, not a revolutionary'".The Irish Times
External links and related literature
[edit]- "Full text ofDudgeon v. the United Kingdom(1981) ".European Court of Human RightsHUDOC Portal.Retrieved27 March2008.
- Micheal T McLoughlin MA (December 1996)."Crystal or Glass?: A Review ofDudgeon v. United Kingdomon the Fifteenth Anniversary of the Decision ".ELaw Journal.3(4). Murdoch: Murdoch University.Retrieved27 March2008.
- 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.
- J. DudgeonSpeechto theILGAconference in Turin, 2011
- Article 8 of the European Convention on Human Rights
- Article 14 of the European Convention on Human Rights
- Discrimination in the United Kingdom
- European Court of Human Rights cases decided by the Grand Chamber
- European Court of Human Rights cases involving the United Kingdom
- United Kingdom LGBTQ rights case law
- 1981 in Northern Ireland
- 1981 in LGBTQ history
- 1981 in United Kingdom case law
- LGBTQ rights in Northern Ireland