Dudgeon v. UK (application No. 7525/76)

Facts

Mr. Dudgeon, a homosexual, alleged that the existence in Northern Ireland of laws which have the effect of making certain homosexual acts between consenting adult males criminal offences, violated his right to respect for his private life.

Held

The laws prohibiting certain homosexual acts between consenting adult males constituted an unjustified interference with Dudgeon’s right to respect for his private life (Art. 8 ECHR). The Court did not find a “pressing social need” to make such acts criminal offences, “there being no sufficient justification provided by the risk of harm to vulnerable sections of society requiring” (§ 60).

Key jurisprudence

• The Court clarifies that any interference must be “necessary in a democratic society”, a condition which does not have the flexibility of such expressions as “useful”, “reasonable”, or “desirable”, but implies the existence of a “pressing social need” for the interference in question. (§ 51)
• While it is for the national authorities to make the initial assessment of the pressing social need in each case; “their decision remains subject to review by the Court”. (§ 52)
• As Dudgeon concerned a “most intimate aspect of private life”, there must exist “particularly serious reasons before interferences” can be legitimate for the purposes of paragraph 2 of Article 8 .(§ 52)

Analysis

Dudgeon summarises the jurisprudence of Handyside (App. No. 5493/72, § 48-50), namely that “necessary in a democratic society” implies the existence of a “pressing social need” for the interference in question (§ 51). Notwithstanding the margin of appreciation left to the national authorities, it is for the Court to evaluate “whether the interference complained of was proportionate to the social need claimed for it” (§ 59).

The “detrimental effects” that the “very existence of the legislative provisions” could have on the life of a person of homosexual orientation, were fundamental to the Court finding the Government’s justifications insufficient (§ 60).

The phrase “most intimate aspect of private life” is explored further in the dissenting opinion to Hatton, which argued that it was illogical that this phrase “be limited to sexual intimacy” (§ 9, Dissenting Opinion to Hatton).

Since the Court found a breach of Article 8 there was no need to examine a breach of Article 14 (non-discrimination) taken with Article 8. Such an examination is only taken “if a clear inequality of treatment in the enjoyment of the right in question is a fundamental aspect of the case” (§ 67).

Nevertheless, it is feasible that a case could be argued on the grounds that an applicant was discriminated against in respect of a “most intimate aspect of [their] private life”.

Related cases

• ‘Belgian Linguistic’ case
• Handyside
• Hatton