ADT v United Kingdom [2000] ECHR 402

The applicant, a homosexual man, was convicted of gross indecency for engaging in consensual sexual acts with up to four other adult men in his home, recorded on videotape. The European Court of Human Rights held that his prosecution and conviction violated Article 8, finding no pressing social need to criminalise private consensual homosexual acts between more than two men.

Facts

The applicant, a practising homosexual identified only as A.D.T., had his home searched by police on 1 April 1996 under warrant. During the search, videotapes and photographs were seized. The applicant admitted during police interview that some videotapes contained footage of himself and up to four other adult men engaging in acts of oral sex and mutual masturbation in his home.

The applicant was charged with gross indecency between men contrary to section 13 of the Sexual Offences Act 1956. The charge related to the sexual acts depicted on one videotape, not to the making or distribution of the tapes. All participants were consenting adults, the acts took place in private, and there was no element of sado-masochism or physical harm. On 30 October 1996, the applicant was convicted and subsequently given a conditional discharge for two years, with confiscation and destruction of seized material ordered.

Issues

Primary Issue

Whether the applicant’s conviction for gross indecency, under legislation criminalising homosexual acts between more than two men in private, violated his right to respect for private life under Article 8 of the European Convention on Human Rights.

Secondary Issue

Whether there was discrimination contrary to Article 14 taken together with Article 8, given that no equivalent provisions regulated heterosexual or lesbian sexual conduct.

Judgment

Interference with Private Life

The Court found that the applicant had been victim of an interference with his right to respect for private life, both through the existence of the prohibiting legislation and through his conviction. The Court noted:

“the mere existence of legislation prohibiting male homosexual conduct in private may continuously and directly affect a person’s private life”

Regarding the Government’s argument that the videotaping removed the activities from the scope of private life, the Court stated:

“No evidence has been put before the Court to indicate that there was any actual likelihood of the contents of the tapes being rendered public, deliberately or inadvertently. In particular, the applicant’s conviction related not to any offence involving the making or distribution of the tapes, but solely to the acts themselves.”

Necessity in a Democratic Society

The Court applied principles from previous case law, particularly Dudgeon v. United Kingdom, finding that:

“Although members of the public who regard homosexuality as immoral may be shocked, offended or disturbed by the commission by others of private homosexual acts, this cannot on its own warrant the application of penal sanctions when it is consenting adults alone who are involved.”

The Court concluded:

“The applicant was involved in sexual activities with a restricted number of friends in circumstances in which it was most unlikely that others would become aware of what was going on.”

Given the narrow margin of appreciation applicable to intimate aspects of private life, the Court held:

“the reasons submitted for the maintenance in force of legislation criminalising homosexual acts between men in private, and a fortiori the prosecution and conviction in the present case, are not sufficient to justify the legislation and the prosecution.”

Implications

This judgment extended the protection afforded to homosexual conduct in Dudgeon to situations involving more than two participants. The decision confirmed that purely private, consensual, non-violent sexual activities between adults cannot be criminalised solely because more than two persons participate. It reinforced that a narrow margin of appreciation applies to intimate aspects of private life, limiting State interference. The case contributed to subsequent reform of sexual offences legislation in the United Kingdom and strengthened the protection of sexual autonomy under Article 8.

Verdict: The Court unanimously held that there had been a violation of Article 8 of the Convention. It was not necessary to examine the case under Article 14. The United Kingdom was ordered to pay the applicant GBP 20,929.05 in damages and GBP 13,771.28 for costs and expenses.

Source: ADT v United Kingdom [2000] ECHR 402