# Smith and Grady v United Kingdom

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Timeline 342 MSM activity made illegal 1533 Death penalty introduced for MSM activity 1543 Buggery Act extended to Wales 1828 Offences Against the Person Act 1828 1835 James Pratt and John Smith executed 1861 Death penalty for buggery abolished 1885 Labouchere Amendment introduced 1889 Cleveland Street scandal 1895 Oscar Wilde found guilty of gross indecency 1912 The Cave of the Golden Calf opens 1921 Plans to make lesbian activity illegal defeated 1936 Mark Weston transitions 1952 John Nott-Bower begins crackdown 1954 Pitt-Rivers, Montagu, Wildeblood imprisoned 1954 Alan Turing commits suicide 1957 Wolfenden report released 1967 MSM activity made legal (England & Wales) 1972 First British Gay Pride Rally 1976 Jeremy Thorpe resigns as Liberal leader 1981 MSM activity made legal (Scotland) 1981 First case of AIDS reported in the UK 1982 MSM activity made legal (NI) 1983 Gay men barred from donating blood 1984 Chris Smith elected as first openly gay MP 1987 Operation Spanner begins 1988 Section 28 comes into force 1989 Stonewall UK forms 1994 Age of consent for MSM becomes 18 1997 Angela Eagle becomes first openly lesbian MP 1998 Bolton 7 found guilty 1998 Lord Alli becomes first openly gay Lord 1999 Admiral Duncan bombing 2000 Gay men allowed in HM Armed Forces 2001 Age of consent equalised to 16 2001 MSM activity involving multiple men legal 2002 Same sex couples granted equal rights to adopt 2003 Section 28 repealed 2004 Civil partnerships introduced 2004 Gender Recognition Act 2004 2006 Discrimination made illegal 2008 Equalised access to IVF for lesbian couples 2008 Incitement to homophobic hatred made a crime 2009 Public apology to Alan Turing 2010 Equality Act 2010 2011 Gay men allowed to donate blood (1 yr deferral) 2013 Nikki Sinclaire becomes first openly trans MEP 2013 Marriage (Same Sex Couples) Act 2013 2014 First same-sex marriages take place 2016 MSM activity not grounds for military discharge 2017 Turing law implemented 2017 Blood donation deferral 3 months (excl. NI) 2019 MPs legislate for gay marriage in NI 2020 Gay marriage legal across UK, incl. NI 2020 Blood donation deferral 3 months (incl. NI) 2021 Blood donation deferral equalised :
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Smith and Grady v UK (1999) 29 EHRR 493 was a notable decision of the European Court of Human Rights that unanimously found that the investigation into and subsequent discharge of personnel from HM Forces on the basis they were homosexual was a breach of their right to a private life under Article 8 of the European Convention on Human Rights. The decision, which caused widespread controversy at the time led the UK to adopt a revised sexual-orientation-free Armed Forces Code of Social Conduct in January 2000. In UK law the decision is notable because the applicants' case had previously been dismissed in both the High Court and Court of Appeal, who had found that the authorities' actions had not violated the principles of legality including Wednesbury unreasonableness, thus highlighting the difference in approach of the European Court of Human Rights and the domestic courts.

## Facts

Smith had been a member of the Royal Air Force since 1989. In June 1994 a woman telephoned the air force alleging that Smith was a lesbian and had been sexually harassing the caller. Smith was questioned by the service police and admitted that she was gay and that she had a same-sex relationship while in the RAF. The service police asked her intimate questions on the details of her sexual life, asking for the names of previous partners, her HIV status and other details. A few months later Smith was given an administrative discharge from the Royal Air Force. Grady had been a member of the Armed forces since 1980 but was discharged following disclosures of a nanny working for the British Defence Liaison Service. The applicants sought to challenge their discharges first through a domestic judicial review, and when this was unsuccessful they launched an application to the European Court of Human Rights.

## Judgment

The British government conceded that there had been an interference with the applicants' right to a private life under article 8 of the European Convention. The issue for the court was therefore whether such an interference could be justified. In order for an interference under article 8 to be justified it is necessary that it is in accordance with the law, in the pursuit of a legitimate aim, and must be considered necessary in a democratic society. The government policy had been given both statutory recognition and recognition by the lower courts and the court considered that the policy could be said to be in the pursuit of the legitimate aim interests of national security" and "the prevention of disorder". However, the court was not satisfied that the policy could be considered "necessary in a democratic society". The court was not satisfied that the government had provided credible justification for its treatment of homosexual personnel. Observing that:
   ”these attitudes, even if sincerely felt by those who expressed them, ranged from stereotypical expressions of hostility to those of homosexual orientation, to vague expressions of unease about the presence of homosexual colleagues. To the extent that they represent a predisposed bias on the part of a heterosexual majority against a homosexual minority, these negative attitudes cannot, of themselves, be considered by the Court to amount to sufficient justification for the interferences with the applicants' rights outlined above any more than similar negative attitudes towards those of a different race, origin or colour".
The court considered that the government had not offered convincing and weighty reasons for the investigation of the applicants sexual orientation or their subsequent discharge and therefore considered that there had been a breach of their right to a private life under Article 8 of the European Convention.
Mowbray has suggested that the court may have been influenced in its decision by the doubts expressed by some of the Obiter dicta of the domestic proceedings which expressed doubts about the durability of the armed forces policy towards homosexuals.

## Significance

The decision was initially controversial, with gay rights advocates arguing that it represented a breakthrough but some politicians and commentators expressing concerns that the decision would disrupt Armed Forces morale. Today, such fears are widely regarded as having been proven unfounded. The Ministry of Defence has concluded that the policy had "been hailed as a solid achievement" and that "there has been no perceived effect on morale, unit cohesion or operational effectiveness".
The decision has come to be widely accepted both within the military and outside it with Wing Commander Phil Sagar of the armed forces' joint equality and diversity training centre issuing a formal apology on behalf of the Ministry of Defence in 2007 to those affected by the MOD's former policy. The current attitude of the Armed Forces was demonstrated in October 2008 when the outgoing head of the British Army, General Sir Richard Dannatt told delegates at a lesbian, gay, bisexual and transgender conference that "respect for others is not an optional extra" and in July 2009 diversity within the armed services was actively celebrated with the first openly gay serviceman featured on the front cover of the armed forces' Soldier magazine. In 2015 following the fifteenth anniversary of the lifting of the gay ban the Ministry of Defence announced changes to its equal opportunities policy which allowed new recruits to disclose their sexuality.