PROCEDURE

The case originated in three applications (nos. 48535/99, 48536/99 and 48537/99) against the United Kingdom lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three United Kingdom nationals, Mr John Beck, Mr Howard Copp and Mr Kevin Bazeley (“the applicants”), on 11, 12 and 11 January 1999, respectively.

The applicants were represented by Ms J. Gould, a solicitor practising in Birmingham, England. 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 armed forces 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 Articles 3, 8 and 10 of the Convention, read on their own and in conjunction with Article 14. They further contended that they did not have any effective remedy in the domestic courts in relation to those violations, in violation of Article 13 of the Convention.

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 5 October 1999 the Chamber decided to join the proceedings in the applications (Rule 43 § 1).

Legal aid was granted to the first applicant on 31 January 2000.

By a decision of 5 September 2000 the Court declared the applications admissible.

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 15 January 2001 and on 13 March 2001 the Government’s observations on those claims were received.

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 1959, 1957 and 1967 and live in Lancashire, Tyne and Wear and Worcester, respectively.

A. The first applicant

On 4 May 1976 the first applicant joined the Royal Air Force (“RAF”). By 1993 he had reached the rank of sergeant in the Electronic Warfare Operational Support Establishment (“EWOSE”) where he was employed as a communications systems analyst and he submitted that he was well placed for promotion. During his service he was awarded the Air Officer Commanding Commendation for Meritorious Service and the Long Service and Good Conduct medal. The first applicant was divorced in 1988.

The first applicant’s service evaluations covering the period June 1990 to January 1993 all recorded his conduct as exemplary and, for the most part, his trade proficiency, supervisory ability and personal qualities were assessed at 8 out of 10. He was highly recommended for promotion during each assessment. The detailed evaluations were all positive. In a report in early 1993, the first reporting officer (with whom the second and third reporting officers essentially agreed) noted, in his final evaluation, that the first applicant was an intelligent, caring, self-assured and mature senior non-commissioned officer who continued to work extremely hard; while his forthright opinions could detract from his popularity, the first applicant always seemed to have the best interests of his subordinates at heart and he was highly recommended for promotion without hesitation. He was said to be “widely recognised as one of the most experienced [senior non-commissioned officers] in the trade”.

By 1993 the first applicant was studying theology and was considering ordination. From 7 to 9 May 1993 he attended a course designed to help individuals assess their suitability for ordination. During that course the first applicant claimed that he realised that he could no longer deny his homosexuality and that he felt morally bound to reveal his sexual orientation as he was aware of the policy against homosexuals in the armed forces. He discussed his homosexuality with the Station Padre and told him that he had decided that he could no longer live a lie.

Accordingly, on 10 May 1993 the first applicant informed the EWOSE security officer that he was homosexual and he made it clear that he had always been a celibate homosexual. Since he considered his discharge inevitable, he requested that it take place as soon as possible. Later that day he saw his immediate superior to whom he also admitted his homosexuality. On 11 May 1993 the first applicant was interviewed by the officer commanding EWOSE. On 12 May 1993 security services were advised. He was suspended from his duties from 17 May 1993.

A service police investigation commenced on 20 May 1993 which included their completing a Character Defect Enquiry (“CDE”) on the first applicant. The CDE report was dated 8 June 1993, briefly described the first applicant and his service career noting that he was currently engaged to serve until February 2006 and outlined the detailed observations made by a number of persons to the service police, which are summarised below.

The EWOSE security officer to whom the first applicant had spoken on 10 May 1993 described the first applicant’s visit to his Squadron Leader when the first applicant had admitted his homosexuality. The security officer reported on information provided by the first applicant on his family and on how he had lived his homosexuality in the armed forces and he proffered the view that the first applicant was, in fact, homosexual and not attempting to secure early release. That officer also described the first applicant’s visit to a medical officer, said to be as a result of being in a highly charged emotional state, and, on referral, to a visiting psychiatrist, the latter of whom had indicated that the first applicant was not suffering from a clinical disorder.

The submissions of the officer who had interviewed the first applicant on 11 May 1993 were also noted in the CDE report. He considered that the first applicant was genuinely homosexual and was not making the claim in order to obtain early discharge. The report also recorded the information received from the first applicant’s immediate superior who had described the first applicant’s character and his interest in theology and who had proffered the view that he was not surprised that the first applicant had claimed to be homosexual. However, that officer confirmed that the first applicant had not given any indication that he was homosexual and that, while he believed him, he had not seen or heard anything that would substantiate the first applicant’s story. He also described the first applicant’s admission to him that he was homosexual and the first applicant’s reasons for his admitting his sexual identity at that stage.

The statements of two colleagues of the first applicant were also recorded in the CDE report. The first had been a close friend of the first applicant and the first applicant had admitted his homosexuality to him two weeks before he did so to the armed forces’ authorities. That colleague described his relationship with the first applicant and the first applicant’s wish to be ordained and also spoke about the first applicant’s financial problems. The second colleague described a striking change in the first applicant’s personality a few weeks after he arrived in the Sergeant’s Mess (he had become miserable and withdrawn). This change could now be explained, according to that colleague, by the first applicant’s admission. Both colleagues described the first applicant as a ‘man’s man’ who gave no indication of his homosexuality.

The Station Padre’s evidence to the service police was also recorded in the CDE report. His meeting with the first applicant on 9 May 1993 was detailed in the report, the first applicant’s religious studies and ambitions were also outlined as was the Station Padre’s conversation about the first applicant with another Padre who had been involved in the course from 7 to 9 May 1993. The Station Padre’s views on the likelihood of the first applicant being accepted into the priesthood were also set out together with the opinion that the first applicant was a clever individual who would attempt to get what he wanted, the way he wanted.

The first applicant’s ex-wife (also in the armed forces) provided a detailed statement to the service police which was recorded in the CDE report. She described her hesitations in marrying the first applicant, their marital difficulties, their financial difficulties, their separation in 1987 and their divorce in 1988.

The CDE report concluded that no signs of homosexual tendencies were identified by the first applicant’s ex-wife, colleagues or friends, that the only evidence was the first applicant’s own admission and that the enquiry had not revealed anything to rebut the first applicant’s submissions that he had not had a homosexual physical relationship. Various identified matters could imply that the first applicant had mercenary reasons for wishing to be discharged and it was noted that he had threatened to go to the press if he was not treated properly. It was recommended that the first applicant’s financial problems should be included in any further personal security report.

The Unit Commander’s recommendation for administrative disposal of the matter was dated 18 June 1993 and included the first applicant’s conduct and trade assessments from 1982 to January 1993. His conduct throughout his career was recorded as exemplary and he had been highly recommended for promotion since October 1986. It dealt briefly with his relationships with his family members, noting that his brother was a practising homosexual. It went on to record that: “[The first applicant] has been a loyal and trustworthy serviceman for 17 years and has worked hard to become a [senior non-commissioned officer]. Despite grave emotional and personal problems, [the first applicant’s] performance as a tradesman and supervisor has remained unaffected until his disclosure on 10 May 1993 ... Despite the devious and deliberate concealment of his homosexual tendencies, [the first applicant’s] honesty and character have caused him finally to admit to the truth. [The first applicant] is five years away from a substantial gratuity and pension, which he has now lost together with his career ... The fact that [the first applicant] has lost so much in material terms to gain some inner personal peace should be seen as a mitigating factor. ... [The first applicant] has few friendships outside his working environment and those remaining will now be under much strain. He has nowhere to live outside the Sergeant’s Mess ... As such this lonely and solitary individual, who has had to face up to a situation not of his own making, deserves to be treated in a compassionate and dignified manner. ... [The first applicant] has had to cope with extreme personal difficulties which have not previously impacted on the Service. These difficulties, which have been beyond his control, have caused him to become a lonely and solitary man, and finally to admit to his true personality. His homosexual tendencies cannot be reconciled easily in the Royal Air Force and his continued retention is not consistent with good discipline or morale. Nevertheless, [the first applicant] has earned the right to be treated in a dignified manner and should be given all possible assistance in reconciling his situation.”

A statement of the first applicant was attached to the above recommendation in which he took exception to the reference to the sexual orientation of his brother which he considered to be of no concern to the RAF and which he found offensive. He also objected to the reference to “devious and deliberate concealment” which he regarded as a disgraceful attack on his personal integrity. He also noted that since the outset of the case he had been treated “with very considerable kindness by all concerned” and that “it would be quite wrong if I did not mention this fact”, the first applicant commending in particular the EWOSE security officer (to whom he had spoken on 10 May 1993) for his kindness and human approach to the matter. In his additional remarks, the Unit Commander noted: “With the current official policy on homosexuality, the simple fact is that [the first applicant] cannot be retained. This is a sad case and I am very keen to see that [the first applicant] is treated as fairly and with as much dignity as can be afforded. He should be discharged as soon as is administratively possible and hence I strongly advise that this case is processed with all haste. Furthermore, I believe very strongly that he should receive his full entitlement of resettlement training/leave, and terminal leave. His dedicated and diligent service over many years warrants a sympathetic and understanding approach to his final weeks in the Service.”

On 10 August 1993, a Board of the RAF, two of whose members thought it apt to liken the first applicant’s case to “a murder inquiry without a body” in that he confessed to being a homosexual “without any evidence to confirm or deny his claim”, recommended his administrative discharge on grounds of his homosexuality.

Further to the intervention of the first applicant’s Member of Parliament, the Parliamentary Under-Secretary of State for Defence apologised for the delay in processing the first applicant’s case and, on 27 November 1993, the first applicant was discharged from the RAF on grounds of his homosexuality. His certificate of discharge indicated that his services were no longer required, the first applicant being unable to meet his service obligations because of circumstances beyond his control.

B. The second applicant

The second applicant joined the Royal Army Medical Corps on 1 June 1978 and was indexed as a pupil nurse on 12 November 1979. He passed his autumn assessment in 1981. At the time of his discharge on 29 January 1982 he was a Private, training as a pupil nurse in a military hospital.

In his assessment dated 14 January 1982 he was recommended for promotion and rated above the standard required of his rank and service. The reporting officer in that evaluation noted that he was a conscientious and reliable young man with good nursing potential, that he had a polite and cheerful manner and got on well with his colleagues. It was considered that he carried out his regimental duties satisfactorily and was ready for immediate promotion.

In June 1981 the second applicant commenced a homosexual relationship with a civilian. Six months later he received a posting order to Germany and applied for a home posting as he wished to remain in the United Kingdom with his partner. His application was refused. He submitted that he then realised that he could not lead a double life or face separation from his partner. Although he knew that revealing his homosexuality would lead to his discharge, he informed his nurse tutor. The latter informed the personnel officer who conducted four interviews with the second applicant on the subject of his homosexuality.

The second applicant was then required to undergo a psychiatric assessment and was advised that this was necessary in order to ascertain whether he was, in fact, homosexual. The psychiatrist’s clinical notes dated 25 January 1982 indicated that it was felt that the second applicant was not suffering from any psychiatric disorder, that there were no reasons to doubt his allegation that he was homosexual and that there was, therefore, no psychiatric contra-indication to his being discharged on grounds of homosexuality. He was discharged from the army on 29 January 1982 on grounds of his homosexuality.

The reasons for discharge were outlined in a note from the second applicant’s commanding officer dated 26 January 1982 where it was confirmed that the second applicant had admitted to homosexual acts with civilians. It was also noted that there was no evidence of such activity with soldiers and it was considered that at no time had good order and military discipline been affected. It was felt that, while his “work has as yet not deteriorated”, the “problems of his relationship” would affect his work and reliability in the near future. It was further noted that he had not yet lost the respect of his superiors nor suffered ridicule at the hands of his contemporaries but that this could well be so if his “problem” were to become common knowledge.

The assessment of his military conduct and character contained in his certificate of service signed on his discharge noted his conduct as exemplary, describing the second applicant as conscientious and reliable with good nursing potential. A letter dated 7 December 1984 from Army Medical Services noted that ward reports throughout the second applicant’s training showed that he was an “above average nurse” who was well liked by his colleagues and patients. He was described as a keen and intelligent worker who applied himself well to all aspects of nursing.

C. The third applicant

The third applicant joined the RAF on 10 November 1985 and commenced officer training at the RAF college. He was commissioned as Acting Petty Officer on 27 March 1986, achieved the rank of Flight Lieutenant in September 1991 and served as a second navigator at a RAF base in Scotland.

In his evaluation covering the period July 1993 to March 1994, the first reporting officer pointed out that the third applicant, who had recently changed posting, was progressing satisfactorily in his current post and that, with more experience, he should be a contender to become a first navigator in due course. Although he was not yet recommended for further promotion, he was considered to have good potential for the future if he could resolve his domestic difficulties. The second and third reporting officers also spoke of the impact on the third applicant of the breakdown of his marriage, considering that he should rather consolidate his current position. Accordingly, none of the three reporting officers recommended him for further promotion. Two out of the three reporting officers referred to him as being prone to air sickness in the posting that he held at that time.

In August 1994 the third applicant’s credit card holder, which he had previously lost, was found by an officer of the service police in the latter’s internal mail and its contents aroused suspicion that the third applicant might be homosexual. On 3 August 1994 the third applicant was interviewed by an officer of the service police and he was shown two membership cards of homosexual clubs which were in his name. The third applicant confirmed that the cards were his and that he was homosexual. During that interview he was pressed to give names of service personnel with whom he had had a sexual relationship. He stated that his homosexual activity was limited to members of the civilian population and that he had never had a sexual relationship with a member of the service.

A report dated August 1994 from the service police described the above interview and indicated that there was no evidence whatsoever to suggest that there was an abuse of rank, that the circumstances were particularly “deviant, sordid or persistent” or that “assault, violence, ill-treatment or other criminal or disciplinary offences” were involved. Accordingly, the third applicant had not been interviewed under caution and was “content to make a voluntary statement”. That statement, dated 3 August 1994, confirmed that he was homosexual and pointed out that he had realised he was homosexual in 1992 and that, in hindsight, this was a major contributory factor in the break-up of his marriage. He indicated that his wife knew at the time of his statement of his homosexuality and he confirmed the statements made during his interview as to his previous homosexual relationships. He made it clear that he did not wish to provide the names of those persons with whom he had had a homosexual relationship and stated that he had not made the statement to get a discharge from service.

On 24 August 1994 the third applicant was suspended from his normal primary duties with immediate effect. A report was prepared recommending that he be ordered to resign his commission on the grounds of unsuitability.

On 31 August 1994 the third applicant lodged a petition challenging this recommendation. On 6 January 1995 the decision of the Air Force Board, rejecting the third applicant’s petition, was promulgated. On 19 May 1995 he was informed that the decision of the Air Force Board would not be reviewed. On 4 September 1995 he was discharged from the RAF on grounds of his homosexuality.

D. The domestic proceedings

On 24 January 1996 Mr Perkins, who had also been dismissed from the Royal Navy in 1995 on grounds of his homosexuality, applied to the High Court for leave to take judicial review proceedings on the basis that the Ministry of Defence 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”).

On 30 April 1996 the European Court of Justice (“ECJ”) decided 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 Mr Perkins was granted leave by the High Court.

On 13 March 1997 the High Court referred the question of the applicability of the Equal Treatment Directive to differences of treatment based on sexual orientation to the ECJ pursuant to former Article 177 of the Treaty of Rome (R. v. Secretary of State for Defence, ex parte Perkins, 13 March 1997).

On 17 February 1998 the ECJ found that the Equal Pay Directive 75/117/EEC (which, like the Equal Treatment Directive, prohibited discrimination “on grounds of sex”) did not apply to discrimination on grounds of sexual orientation (Grant v. South West Trains Ltd [1998] ICR 449). Consequently, on 2 March 1998 the ECJ enquired of the High Court in the Perkins case whether it wished to maintain the Article 177 reference. After a hearing between the parties, the High Court decided to withdraw the question from the ECJ (R. v. Secretary of State for Defence, ex parte Perkins, 13 July 1998). Leave to appeal was refused.

The applicants issued proceedings, along with a number of other individuals, in the Industrial Tribunal claiming unfair dismissal and sexual discrimination on 10 August 1995, in September 1995 and in October 1995 respectively. They argued, inter alia, in favour of the applicability of the Equal Treatment Directive to a difference of treatment based on sexual orientation. Following a hearing before the Industrial Tribunal in August 1996, their cases together with a series of similar cases, were stayed pending the outcome of the above-described Perkins case then pending before the High Court. That stay was renewed in May 1997 and in June 1998. However, further to the High Court decision of 13 July 1998 in the Perkins case, the applicants, following legal advice, withdrew their applications before the Industrial Tribunal, which tribunal consequently dismissed their applications on 23 December 1998.