PROCEDURE

The case originated in two applications (nos. 43208/98 and 44875/98) against the United Kingdom lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two United Kingdom nationals, Mr Terence Perkins and Ms R. (“the applicants”), on 13 July 1998 and 15 September 1998, respectively.

The applicants were represented by Mr S. Grosz, a solicitor practising in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley, of the Foreign and Commonwealth Office.

The applicants alleged that an investigation into their sexuality and their discharge from the Royal Navy on the basis of their homosexuality as a result of the absolute policy against the presence of homosexuals in the armed forces that existed at the time violated their rights under Article 8, alone and in conjunction with Article 14 of the Convention.

The applications were transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11).

The applications were allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1 of the Rules of Court.

On 23 February 1999 the Chamber decided to join the proceedings in the applications (Rule 43 § 1). Following a request from the second applicant, the President of the Third Section decided that her identity should be kept confidential.

The applications were declared admissible by the Court on 5 September 2000.

The Chamber decided that no hearing on the merits was required (Rule 59 § 2 in fine).

The applicants’ claims for just satisfaction pursuant to Article 41 of the Convention were received on 6 November 2000 and on 16 January 2001 the Government’s observations on those claims were received. Thereafter there was a further exchange of comments between the parties in correspondence.

On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Fourth Section.

I. THE CIRCUMSTANCES OF THE CASE

The applicants were born in 1969 and 1972 and live in London and Surrey respectively.

A. The first applicant

On 11 February 1991 the first applicant joined the Royal Navy as a medical assistant and worked in a Royal Navy hospital. He signed on for 22 years of service. Between 1992 and 1995 he passed several professional examinations, described as being “for advancement and sub-specialisation”. His naval character was assessed as being “very good” for every year that he served in the Royal Navy and he was granted a good conduct badge on 11 February 1995. On his ‘Efficiency Record’ he was noted to have “made an excellent initial impression” and to be “very capable” during 1992; in 1993 it was noted that he “needs to show more initiative”; and in 1994 it was recorded that he was “still quiet but improving”, had “good computer skills” and was a “good worker”. His efficiency assessments between 1992 and 1995 rated him as “satisfactory” on four occasions and as “superior” on two occasions.

On 1 August 1995 the first applicant was interviewed by the Special Investigations Branch (“SIB”) of the Royal Navy, as a result of the receipt of information by the naval authorities that he was homosexual.

The first applicant confirmed at the outset that the interview took place with his consent and that he was homosexual. Thereafter, the interview continued for about a further 10 minutes. During that time the first applicant was questioned about his sexual practices with, and about the age of, his current partner. He was asked whether his partner was a civilian and about the identities of his former partners in the service (a number of questions were raised in this respect). The interviewers then explained to the first applicant that the purpose of the interview was to see if any ‘offences’ had been committed and they continued questioning him. He was asked, inter alia, whether he had committed sexual acts with anyone under 18 years of age, how long he had known that he was homosexual, how many relationships he had had, whether he had been induced to become a practising homosexual since he joined the navy and about his sexual practices with his past and current partners. The first applicant was further asked whether he was HIV positive and if he knew whether his current partner was HIV positive.

After the interview the first applicant was informed that he would be discharged pursuant to the Ministry of Defence’s policy against homosexuals serving in the armed forces. The discharge took effect on 24 October 1995. At the time of his discharge the first applicant held the position of leading medical assistant.

On 24 January 1996 the first applicant applied for leave to take judicial review proceedings on the basis that the blanket policy against homosexuals serving in the armed forces was “irrational”, that it was in breach of Articles 8 and 14 of the European Convention on Human Rights and that it was contrary to the EU Council Directive on the Implementation of the Principle of Equal Treatment for Men and Women as regards Access to Employment, Vocational Training and Promotion and Working Conditions 76/207/EEC (“the Equal Treatment Directive”).

His application was stayed pending the outcome of the case of R. v. Ministry of Defence, ex parte Smith and Others ([1996] 2 WLR 305) which raised similar issues and was determined on 19 March 1996, when the House of Lords dismissed petitions for leave to appeal.

The first applicant renewed his application for leave to take judicial review proceedings following the decision, on 30 April 1996, of the European Court of Justice (“ECJ”) that transsexuals were protected from discrimination on grounds of their transsexuality under European Community law (P. v. S. and Cornwall County Council [1996] Industrial Relations Law Reports 347).

On 3 July 1996 the applicant was granted leave to take judicial review proceedings.

On 7 March 1997, at the substantive judicial review application, the first applicant argued that a reference to the ECJ pursuant to former Article 177 of the Treaty of Rome should be made. In its judgment of 13 March 1997 the High Court stayed the first applicant’s judicial review application and referred questions to the ECJ on the Equal Treatment Directive. The High Court questioned whether Article 2.1 of that directive (prohibiting discrimination “on grounds of sex”) applied to discrimination on grounds of sexual orientation and, if so, whether the policy of the Ministry of Defence against homosexuals was capable in law of justification under Article 2.2 of that directive (R. v. the Secretary of State for Defence, ex parte Perkins, judgment of 13 March 1997).

On 17 February 1998 the ECJ found that Article 119 of the Treaty of Rome and the Equal Pay Directive (EU Council Directive 75/117/EEC, also prohibiting discrimination “on grounds of sex”) did not apply to discrimination on grounds of sexual orientation (Grant v. South West Trains Ltd [1998] ICR 449).

On 2 March 1998, in the light of the decision in Grant, the Administrator of the ECJ wrote to the High Court enquiring whether the High Court wished to withdraw its reference to the ECJ in the first applicant’s case. On 13 July 1998, following a hearing between the parties, the High Court ordered the withdrawal of its reference in the first applicant’s case. Leave to appeal that decision was refused by the High Court. On 15 July 1998, two Queen’s Counsel advised the first applicant against an appeal to the Court of Appeal on the grounds that such an appeal did not have any prospects of success.

B. The second applicant

On 30 July 1990 the second applicant joined the Royal Navy. She signed on for 22 years of service. Following basic training, she trained as a radio operator. In May 1991 she passed a course described as “specialist courses of civilian value” in basic ships fire fighting. In June 1992 she passed a professional qualifying examination for wren radio operator first class, described as a “highest service examination”. Her naval character was assessed as being “very good” for each year in which she served in the Royal Navy and her efficiency was noted to be “satisfactory”.

In or around September 1993, the second applicant, who was working on a submarine base in Scotland and was suffering from a great deal of emotional distress relating to her father’s illness, confided in a colleague that she had had a brief lesbian relationship with a civilian whilst on leave. The second applicant discussed this with no one else. That colleague reported the second applicant to the naval authorities.

On 10 September 1993 the second applicant was woken up and interrogated by an officer from the SIB for two hours. The interview focussed on matters of an intimate sexual nature. A thorough and intimate search of the second applicant’s personal belongings was then conducted. The second applicant was asked whether she had any electrical items. She understood the question to refer to particular items of a sexual nature, which understanding was not contradicted by the investigating officer. A number of the second applicant’s personal belongings, including personal letters, a video, a poster and a film, were confiscated. It is the second applicant’s belief that her personal letters were read by the officers investigating her case.

On 13 September 1993 she was sent home to inform her parents that she was being investigated with a view to being discharged and, on her return to base, she was moved to a different room so as not to share with the colleague who had informed on her. She was also moved out of direct working contact with that colleague. On 31 October 1993 she was informed that she was going to be discharged and that she had 48 hours to pack her belongings and leave the base. The second applicant was then interviewed by an official of the Ministry of Defence in London in order to assess whether or not she would be a security risk once she had left the armed forces. The second applicant also stated that she was obliged to read the statements of those persons who had been interviewed in connection with her and to sign those statements in order to indicate that she had read them.

The second applicant’s discharge came into effect on 26 November 1993. Her character on her ‘Certificate of Discharge’ was recorded to be “exemplary”. Her certificate of qualifications which she received on discharge pointed out that the second applicant had: “...displayed an above average level of intelligence and an ability to absorb and use new information quickly. She is of good appearance, has a sociable nature and works well as a member of a team. She has shown the potential to be considered for officer training and the drive required to learn and work under her own volition. She is a competent and reliable Communications rating with good keyboard skills and an understanding of Mainframe Computer Operations. [The second applicant] has potential and drive which should make her a sought after asset by a future employer.”

Given the second applicant’s distress relating to her discharge and to her father’s illness she did not immediately issue any domestic proceedings. The second applicant stated that, in any event, national law in relation to discrimination on grounds of sexual orientation was such that at that time she did not have any realistic prospect of succeeding in any such proceedings.

However, in view of, inter alia, the above-cited judgment of the ECJ on 30 April 1996 in the Cornwall County Council case and the reference under former Article 177 to the ECJ by the High Court in the first applicant’s case in March 1997, the second applicant lodged, on 27 January 1998, an application in the Industrial Tribunal alleging unfair dismissal (although this complaint was later withdrawn) and sexual discrimination contrary to the provisions of the Sex Discrimination Act 1975 and the Equal Treatment Directive. She also requested the Industrial Tribunal to stay her case pending the outcome of the afore-mentioned Article 177 reference in the first applicant’s case.

On 26 March 1998 the Chairman of the Industrial Tribunal, nevertheless, considered the second applicant’s case and found that, in the light of the subsequent above-cited decision of the ECJ on 17 February 1998 in the Grant case, the second applicant’s case did not appear to be very strong. He also decided, having regard to the judgment in the Grant case and because the second applicant could have lodged her proceedings earlier, that he would not extend time to allow the second applicant’s claim to proceed.

Since the Article 177 reference in the first applicant’s case had not yet been determined, the second applicant appealed that decision to the Employment Appeal Tribunal on 22 May 1998. However, following the withdrawal by the High Court of that Article 177 reference on 13 July 1998, the second applicant requested the withdrawal of her own appeal. On 23 July 1998 the Employment Appeal Tribunal dismissed her appeal on the basis that it had been withdrawn.