The European Commission of Human Rights sitting in private on
17 July 1986, the following members being present:

                    MM. C.A. NØRGAARD, President
                        J.A. FROWEIN
                        F. ERMACORA
                        G. TENEKIDES
                        S. TRECHSEL
                        B. KIERNAN
                        A.S. GÖZÜBÜYÜK
                        A. WEITZEL
                        J.C. SOYER
                        H.G. SCHERMERS
                        H. DANELIUS
                        G. BATLINER
                        J. CAMPINOS
                        H. VANDENBERGHE
                    Mrs G.H. THUNE
                    Sir Basil HALL

                    Mr. J. RAYMOND, Deputy Secretary to the Commission

Having regard to Art. 25 (Art. 25) of the Convention for the
Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 8 April 1983 by
Martin Johnson against the United Kingdom and registered on 9 May 1983
under file No. 10389/83;

Having regard to the report provided for in Rule 40 of the Rules of
Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British citizen, born on 1 October 1954 and
resident in London.  The facts, as submitted by the applicant, may be
summarised as follows.

The applicant is represented before the Commission by
Mr. Peter Ashman, a barrister.

On the night of 3 October 1982, the applicant held a party, to which
he had invited some 40 people, all of whom were homosexual as was the
applicant himself.  The applicant states that no persons under the age
of 21 were invited and that to his knowledge none were present.

Between 02.00 hrs and 02.30 hrs the police entered the flat where the
party was still in progress.  Various items were removed from the
applicant's bedroom and the applicant and 37 guests were arrested and
taken to the police station.

On being arrested, the applicant was accused of permitting homosexual
acts to take place at the party contrary to the Sexual Offences
Act 1956, as amended by the Sexual Offences Act 1967.  The police
carried out the raid under their general powers to enforce legislation
on reasonable suspicion of offences, in this case offences against
these Acts.  The 1956 Act, an Act consolidating the existing statute
law made it an offence for any person to commit buggery with another
person or an animal (section 12) and an offence for a man to commit an
act of gross indecency with another man (section 13). Section 1 (1) of
the 1967 Act provides that:

"... a homosexual act in private shall not be an offence provided that
the parties consent thereto and have attained the age of 21 years."

By Section 1 (2) it is provided that:

"An act which would otherwise be treated for the purposes of this Act
as being done in private shall not be so treated if done -

a)      when more than two persons take part or are present; or

b)      in a lavatory to which the public are permitted to have
access, whether on payment or otherwise."

The applicant was questioned about his homosexuality and detained
until 11.30 hrs the same morning.

No prosecutions were subsequently brought, the applicant being
informed in December 1982 by his solicitors that the police would not
press charges.  The applicant and his guests however had been upset
and frightened by events and the publicity in the press caused further
distress.  The applicant believes the publicity surrounding the raid
played a decisive part in the withdrawal of an offer of permanent
employment at the firm of travel agents with which he was on
probationary service.

COMPLAINTS

Article 8 para. 1 (Art. 8-1) of the Convention

The applicant submits that the raid on his home was an interference by
a public authority with his right to respect for his private life and
his home.  The party was a private social occasion which took place in
his home and to which the general public had no access.  This
interference was authorised by the Sexual Offences Act 1956, as
amended by the Sexual Offences Act 1967.

The applicant submits that this legislation puts him at risk of
interference with his private life and is thus in violation of
Article 8 para. 1 (Art. 8-1).  He accepts that the police raid was and
would be "in accordance with the law" but contends that the law is
"not necessary in a democratic society" for any of the exceptions
contained in Article 8 para. 2 (Art. 8-2).

Article 14 (Art. 14) of the Convention

The applicant complains that there is clear inequality of treatment in
his enjoyment of the right to respect for his private life and home
since the legislation only applies to male homosexuals. Adult male and
female heterosexuals and adult female homosexuals may conduct
themselves in the privacy of their own homes as regards their
consensual sexual activities, without such risk of interference.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 8 April 1983 and registered on
9 May 1983.  The Commission examined its admissibility on
7 October 1985 and decided, in accordance with Rule 42 (2) b of its
Rules of Procedure, to invite the United Kingdom to submit written
observations on its admissibility and merits.  After one extension of
the time limit originally set, the Government's observations were
submitted on 29 January 1986.  The applicant's observations in reply
were submitted on 25 April 1986, similarly after one extension of the
time limit originally set.

OBSERVATIONS OF THE PARTIES

1.      The respondent Government

a)      The facts

At approximately 2.25 a.m. on 3 October 1982, acting on information
received that acts of buggery and gross indecency were taking place at
the applicant's address between groups of men some of whom were under
21, a number of police officers went to investigate. Finding the door
open, they entered and found a party going on. Groups of men were in
all the rooms, talking, holding hands and cuddling.  The police
officers entered the bedroom, where they saw six men, naked or only
partly clothed, two of whom were getting up from one of the mattresses
lying on the floor.  The guests of whom there were about 30 were
interviewed.  A number of them gave false details and in consequence
all were arrested and taken to Acton Police Station.  Although one of
the guests was under 21, he took no part in any sexual activity.

The applicant was questioned at the police station and was then
released pending further enquiries.  The applicant was not charged.
The Government originally stated in their observations that the
applicant was charged under section 13 with procuring other men to
commit acts of gross indecency but the Government have since stated
this to be an error.  Two months later, after the police had put the
case to their solicitor and been advised as to the difficulties of
proof, the applicant was informed no further action would be taken in
respect of the incident.

b)      Domestic law and practice

i.  Homosexual acts between males

In England and Wales, the current law on male homosexual acts is
contained in the Sexual Offences Act 1956 ("the 1956 Act") as amended
by the Sexual Offences Act 1967 ("the 1967 Act").

The 1956 Act, an Act consolidating the existing statute law, makes it
an offence for any person to commit buggery with another person or
animal (section 12).  Section 13 makes it an offence for a man to
commit an act of gross indecency with another man or to procure the
commission of such an act.  Section 13 in full provides as follows:

"It is an offence for a man to commit an act of gross indecency with
another man, whether in public or private, or to be a party to the
commission by a man of an act of gross indecency with another man, or
to procure the commission by a man of an act of gross indecency with
another man."

The 1967 Act qualified sections 12 and 13 of the 1956 Act by providing
that, subject to certain exceptions concerning the mentally
disordered, members of the armed forces and merchant seamen, buggery
and acts of gross indecency in private between consenting males aged
21 years or over should not be criminal offences.

Parliament did not, however, accept the Wolfenden Committee's
recommendation as to leaving the words "in private" without any
definition; and section 1 (2) of the 1967 Act provides as follows:

"An act which would otherwise be treated for the purposes of this Act,
as being done in private shall not be so treated if done

a)  when more than two persons take part or are present...."

Under section 13 of the 1956 Act it was an offence for a man to
procure an act of gross indecency between males.  Section 4 (3) of the
1967 Act however amended the section as follows:

"It shall not be an offence under section 13 of the Act of 1956 for a
man to procure the commission by another man of an act of gross
indecency with the first-mentioned man which by reason of section 1 of
this Act is not an offence under the said section 13."

It therefore remains an offence under section 13 of the 1956 Act for a
man to procure the commission of an act of gross indecency between two
other men whether that act itself is an offence or not.

Where a consensual homosexual act occurs between males over 16 and
amounts to an offence, the maximum penalty for committing the act or
procuring its commission is normally two years' imprisonment.  Where,
however, a male of or over 21 commits such an act, or procures a male
of or over 21 to commit such an act, with a male under 21, the older
man is liable to a maximum of 5 years' imprisonment.  In 1982 any
offence punishable with 5 years' imprisonment or more was, under
section 2 (1) of the Criminal Law Act 1967, an "arrestable offence".
By section 2 (4) of that Act:

"Where a constable, with reasonable cause, suspects that an arrestable
offence has been committed, he may arrest without warrant anyone whom
he, with reasonable cause, suspects to be guilty of the offence."

Section 2 (6) of that Act provided a constable with a power of entry
of any premises without a warrant for the purpose of arresting a
person under inter alia section 2 (4).  (Section 2 of the 1967 Act has
been replaced with effect from 1 January 1986 by a substantially
similar provision in the Police and Criminal Evidence Act 1984.)

ii.  Heterosexual acts and acts between female homosexuals

In England and Wales the age of consent for girls is 16.  It is an
offence for a man to have unlawful sexual intercourse with a girl
under 16 (section 6 of the 1956 Act).  Section 14 of the 1956 Act
makes it an offence for a male or female to indecently assault a
female but where she consents no offence can in general arise.  There
is, however, protection for a girl under 16, in that section 14 (2)
provides that a girl under that age cannot in law give any consent
which would prevent an act being an assault for the purposes of
section 14.  Section 14 also provides the age of consent for female
homosexual acts because the offence may be committed by females as
well as males.

As regards procuring, it is an offence at common law to procure any
person to commit an offence known to law.  Thus a person who procures
either of the offences mentioned in the previous paragraph is guilty
of an offence.  The 1956 Act also contains specific offences of
procuring heterosexual acts, mostly in the field of prostitution.

iii.  15th Report of the Criminal Law Revision Committee (April 1984
Cmnd 9213)

This report, submitted by the applicant in support of his application,
reviews the law relating to sexual offences.  Inter alia, the
committee recommended that section 1 (2) a) of the 1967 Act be
repealed so that as a general rule homosexual acts occurring between
adult males where more than two take part or are present should cease
to be criminal; but that a homosexual act of such a kind should remain
an offence where it was likely to be seen by "members of the public."
The committee also recommended that the "age of consent" for
homosexual acts between women should remain at 16.  In their
17th report, they dealt also with procuring and recommended that
procuring homosexual acts between others should remain an offence,
whether or not the acts procured are themselves illegal.

It is also relevant to note that the Policy Advisory Committee on
Sexual Offences appointed by the Home Secretary to advise him as to
the age of consent reported that they recommended the age of consent
for girls to remain at 16 and the age for male homosexual relations to
be reduced from 21 to 18.

c)      Admissibility and merits

Article 8 para. 1 (Art. 8-1)

The Government submits that none of the matters complained of amounted
to a breach of Article 8 para. 1 (Art. 8-1).  It is essential to bear
in mind that the police entered the applicant's flat because they
suspected with reasonable cause that arrestable offences were being
committed there, i.e. males of or over 21 were committing homosexual
acts with males under 21.  The police arrested the applicant because
they reasonably suspected him of procuring such offences.

The Government submits that the desire of a person to provide on his
premises facilities for persons (of whatever age) invited there to
commit homosexual acts is not an aspect of "his private life" and is
certainly not an aspect of "his private life" or "home" for which
Article 8 (Art. 8) gives him right to respect.  The Government refers
to X. v. United Kingdom (Application No. 7215/75, D.R. 19 p. 76) where
it was stated:

"not all regulation of sexual behaviour could be considered to be an
interference with the right to respect for private life."

This case concerned X's desire to have homosexual relations with
another man aged 18-21 in private and the Commission found the
prohibition was an aspect of X's private life under Article 8
(Art. 8).  This case however differs in that the applicant's
activities concerned a large number of other men and also the
applicant's own sex life is not concerned.  The application of the
criminal law to the applicant and to the use of his house in these
circumstances does not constitute an interference with his right to
respect for private life.

Article 8 para. 2 (Art. 8-2)

If, contrary to this submission, the Commission finds there is an
interference contrary to Article 8 para. 1 (Art. 8-1), the Government
submits that it is justified under Article 8 para. 2 (Art. 8-2).
The applicant does not contend that the entry and arrest were not in
accordance with law.

Further the Government argues that any interference is justified as
being aimed at the prevention of crime, the protection of health or
the protection of the rights and freedoms of others.  The Convention
refer to the DUDGEON case where the Court acknowledged that some
degree of regulation of male homosexual conduct can be justified as
necessary in a democratic society and that it is for the state
authorities to make the initial assessment of the pressing social need
in each case.

The Government submits that the powers of entry and arrest were
exercised in relation to the arrestable offences of committing a
homosexual act and the procuring of such acts and therefore were
clearly for the twin aims of "protection of morals" and the
"protection of the rights and freedoms of other", in particular of
males under 21.  The Government refers to the case of X. v. United
Kingdom and DUDGEON, where the Commission and Court accepted that the
prohibition of homosexual relations with males under 21 may be
considered necessary for these reasons.  A new consideration has
emerged recently with the spread of the disease AIDS, which makes it
clear that on the grounds of protection of health, the procuring of
promiscuous homosexual acts should remain discouraged by the criminal
law.

Article 14  (Art. 14)

The entry and arrest were dependent on the fact that it is an
arrestable offence for a male to have sexual relations with a male
under 21 and that the procuring of such an act is also an offence.
This protection of young men under 21 has already been considered by
the Commission in respect of heterosexuals and female homosexuals.

i.  Heterosexuals

In England and Wales the "age of consent" for homosexual relations
between males is 21; for heterosexual relations it is 16. In its
examination in X. v. United Kingdom of the difference between the two
ages the Commission found that an objective and reasonable
justification existed for the higher age in respect of male
homosexuals in the criterion of "social protection" (i.e. protection
of the rights of others).  It found too that the threat and employment
of criminal sanctions in that case were not disproportionate to the
aim of protection.  There was accordingly no breach of Article 14
(Art. 14) in that respect.  The Government would submit that the
social protection argument remains just as valid today and that there
is no reason for the Commission to alter its opinion of 1978 in the
case of X. v. United Kingdom.

ii.  Female homosexuals

The age of consent for female homosexuals is 16.  This difference in
treatment has already been considered by the Commission in X. v.
United Kingdom, where a previous Application No. 5935 was cited to the
effect that a specific social danger exists in the case of masculine
homosexuality since "masculine homosexuals often constitute a distinct
socio-cultural group with a clear tendency to proselytise adolescents
and that the social isolation in which it involves the latter is
particularly marked."

The Commission concluded that the difference in treatment was
justified by the different nature of the social problem and that the
test of proportionality was met in this regard.  The Government refers
also to the Report of the Criminal Law Revision Committee published in
April 1984 which stated that the phenomenon of lesbianism and the
social problems it generates are sufficiently different to justify a
lower age of consent.  The Government therefore submits there is no
reason why the Commission should depart from its previous view that
difference in age of consent for male and female homosexual behaviour
does not amount to a violation of Article 14 (Art. 14).

2.      The applicant

a)      The facts

The police decided to raid the applicant's home on the basis of
information from an anonymous telephone caller.  This caller had in
fact been evicted from the applicant's party because of his rude,
aggressive behaviour: he admitted to a friend of the applicant that he
had made the call in order to get his revenge.

The applicant disputes the Government's description of the scene in
his bedroom.  His own subsequent enquires suggested that one person
was on the bed, undressed but all the others clothed.  There was only
one mattress in the room.

The applicant states that he did not invite anyone under the age
of 21.  He has since learned that an Italian man aged 20 had been
brought along to the party by one of those invited.

The applicant denies that he was charged before release.  He was not
provided with a written statement of charge nor was he bailed by the
police as would normally be the case.  The applicant invites the
Government to supply proof that he was so charged.  (The Government
has subsequently accepted that the applicant was not charged.)

After his release, the applicant contacted his solicitor who advised
him immediately to prepare a record of what had transpired, which the
applicant did that same day.  The applicant recorded that all the
questions of the police were directed towards his own sexual
activities, what activities had been going on or would be allowed at
his party.  He was not asked about the ages of the people at the
party.

b)      Domestic law

Procuring

The offence of procuring acts of gross indecency as governed by
section 13 of the Sexual Offences Act 1956 can only be committed by a
man.  A woman commits no offence if she procures such an act, whether
that act is legal or illegal.  The applicant refers to the definition
of procuring set out in R. v. Broadfoot (1977 64 Cr. App. Rep. 71).
In this case Mr. Justice Cusack stated that it had been properly
defined as to produce by endeavour, to recruit, to bring about a cause
of conduct which the person in question would not have embarked
spontaneously of their own volition.  In this case, all of the persons
at the applicant's party were there of their own free will and none
had been persuaded to participate in unlawful homosexual acts against
their will.  Therefore, the applicant could not have been convicted of
procurement if everyone was a willing participant.  The reason why the
police raided the applicant's party was not because of any suspicion
of a possible offence of procurement, but because of suspicions about
illegal homosexual acts, i.e. more than two persons engaging in
homosexual acts, some of whom were under 21.

c)      Admissiblity and merits

Article 8 para. 1 (Art. 8-1)

It is submitted that the entry by police officers into a private home
to arrest all the persons at a private social gathering amounts to a
far more direct and open interference with the rights guaranteed under
Article 8 para. 1 (Art. 8-1) than the interference by telephone
surveillance found in the KLASS (Eur. C. judgment of 6 September 1978)
and MALONE cases (Eur. C. judgment of 2 August 1984).  There was no
judicial authorisation for the raid, which was carried out under
legislation permitting entry and arrest without warrant.  The police
also directed the major part of their questioning to the applicant's
own sex life.

Article 8 para. 2 (Art. 8-2)

The applicant submits that the legislation and the police enforcement
of it were not justified under any of the heads set out in Article 8
para. 2 (Art. 8-2).  He accepts that they were in accordance with
domestic law, but disputes that they are necessary in a democratic
society.

The prohibition on more than two persons engaging in homosexual acts

Both the Wolfenden Committee in 1957 and the Criminal Law Revision
Committee (CLRC) in 1984 regarded the use of the criminal law to
regulate the private conduct of adult male homosexuals as being
unjustified.  Wolfenden said such conduct was "outside the proper
purview of the criminal law."  The CLRC described the existing
situation as "an unjustified interference with the privacy of
homosexuals in their own homes."

The House of Commons has not been given the opportunity to re-consider
the provision since 1967.  The number of prosecutions has been
negligible but the existence of the law and the wide powers of
enforcement of the police enable the public authorities to interfere
with the private lives of homosexual men on the merest of suspicions.
In the present case, it was a disgruntled guest: it could equally have
been a hostile neighbour or passing police officer who peeked through
the window and saw men dancing and cuddling.

The offence of procuring

The applicant submits that it was not suspicion of such an offence
which led the police to raid his home, since no information concerning
any alleged act of procurement had been given.

The applicant does not dispute that where there is a genuine case of
procuring an offence i.e. persuading someone to commit a criminal
offence which he would not normally be willing to commit, then the
enforcement of the law may be justified under Article 8 para. 2
(Art. 8-2).  However, there is no pressing social need for a separate
offence under section 13.  There have hardly been any prosecutions, it
can be committed only by a man and its existence can be used by the
public authorities to interfere with the private lives of homosexual
men whenever more than two gather for a social occasion in their
homes. But since in this application, no offence of procuring had been
committed and none suspected before the raid, the question of
procuring is largely irrelevant.

The presence of a man under 21

The only guest under 21 was a visitor from Italy.  Italian law does
not discriminate in respect of the age of consent for sexual activity,
the age of 16 being fixed as the age of consent for all consensual
sexual acts, heterosexual or homosexual.  Neither does Italian law
prohibit private sexual acts involving more than two people.  It is
illogical to argue that the police raid aimed at protecting his health
or morals or his rights and freedoms by preventing him doing what his
national law had permitted him freely to do for several years and what
he would be able to do in almost every other member state of the
Council of Europe.

The Commission decided in the case of X., Application No. 7215/75,
that an age of consent of 21 for male homosexuals was permissible
under the doctrine of the margin of appreciation for English males.
The applicant also notes that, in deciding Application No. 9721/82
v. United Kingdom, the Commission chose to ignore the recommendations
of the Council of Europe's own criminological experts in this field,
as expressed at the 15th Criminological Research Conference, and the
views expressed by the Council of Europe's Parliamentary Assembly, in
recommendation No. 924 (1981) concerning, inter alia, the minimum age
of consent for homosexual acts.  The Commission further ignored the
views of all the English experts, medical, legal and sociological,
expressed in their various evidences to the CLRC, and subsequently
endorsed by the body, that the age of consent should be reduced to at
least 18 for homosexual acts between males.

In the applicant's view, it is illogical that the Government, and the
Commission, should rely on expert medical, psychological and
sociological studies from the 1950s and 1960s to provide the basis for
a finding that there is objective and reasonable justification for
restricting rights under the Convention, yet should refuse to rely on
studies of a similar expert nature from the 1970s and 1980s when these
all concur that the extent of such restrictions is no longer
necessary.

The House of Commons has not been allowed to re-consider the age of
consent since 1967 and opinion has evolved considerably since then.
This failure to keep old laws under periodic Parliamentary review
where their effect amounts to restrictions on a most intimate aspect
of private life is incompatible with the obligation to respect the
right guaranteed by Article 8 (Art. 8) and not merely to refrain from
interfering with it; especially where the powers exercised can have
such drastic consequences as loss of liberty, loss of employment, loss
of home and break-up of the family, both for males over 21 and those
under 21, whom the restrictions are ostensibly designed to protect.
Such interference with ordinary private and home life which is
possible under the legislation is totally disproportiate to the aims
advanced by the Government to justify such interference.

Aids

The Government further suggests that interference is justified by
seeking to prevent the spread of AIDS, yet the Government's own
advertising makes it clear that AIDS is transmitted by a variety of
means.  It is found to a considerable degree amongst drug addicts and
haemophiliacs, yet there are no special legal restrictions on their
sexual acts.  Concern for the health of the persons at the applicant's
party was not one of the police considerations in raiding it.

Article 14 (Art. 14)

The applicant submits that he has suffered clear discrimination in the
enjoyment of his rights under Article 8 (Art. 8), taken together with
Article 14 (Art. 14), which has no reasonable or objective
justification.

(i)     Only homosexual men may be prosecuted for engaging in sexual
relations in private with more than two persons present in the room.

(ii)    Only men, whether hetero- or homosexual, may be prosecuted for
procuring homosexual acts, whether such acts are legal or illegal.

All of the expert bodies which have considered the law relating to
privacy regard it as anomalous.  It leaves homosexual men at risk of
interference by the public authorities whenever three or more gather
together socially.  There have scarcely been any prosecutions since it
was enacted, yet its existence enables the public authorities to
interfere in private lives in such a way that, as in the present
application, it can result in loss of liberty, loss of employment,
loss of friends and loss of reputation.  For these reasons, the
applicant submits that his rights under the Convention have been
violated.

THE LAW

1.      The applicant complains that the police entry into his home
was an interference with his right to respect for his private life and
his home.  He also complains that the legislation which authorised the
police action puts him at risk of interference with his private life.

Article 8 (Art. 8) provides that:

"1.  Everyone has the right to respect for his private and family
life, his home and his correspondence.

2.  There shall be no interference by a public authority with the
exercise of this right except such as is in accordance with the law
and is necessary in a democratic society in the interests of national
security, public safety or the economic well-being of the country, for
the prevention of disorder or crime, for the protection of health or
morals, or for the protection of the rights and freedoms of others."

The Commission will consider in turn whether the entry and arrests
which followed or the legislation constitute an interference with the
applicant's rights under Article 8 (Art. 8).

The raid

The Commission recalls that on the morning of 3 October 1982 a number
of police officers entered the applicant's flat, where he was holding
a "gay" party, seized items from his bedroom and after arresting the
applicant and his guests took them to the police station, where they
were questioned about their activities.

However, the Commission is not required to decide whether or not the
facts alleged by the applicant disclose any appearance of a violation
of this provision, as Article 26 (Art. 26) of the Convention provides
that the Commission "may only deal with the matter... within a period
of six months from the date on which the final decision was taken."
Since however it is accepted that the entry and arrests were lawfully
carried out, the applicant had no effective remedy open to him in the
English courts.  Where no domestic remedy is available, the six months
period runs from the date of the act which is itself alleged to be in
violation of the Convention (cf. Application No. 8077/77,
Dec. 10.7.78, D.R. 13 p. 153).

In the present case the incidents complained of took place on
3 October 1982 whereas the application was submitted to the Commission
on 8 April 1983, that is more than six months after the date of the
incident.  Furthermore, an examination of the case does not disclose
the existence of any special circumstances which might have
interrupted or suspended the running of that period.

It follows that this part of the application has been introduced out
of time and must be rejected under Article 27 para. 3 (Art. 27-3)
of the Convention.

The legislation

The applicant however also complains that the legislation governing
homosexual activities puts him at risk of interference with his
private life.  In particular, he complains of the law which retains an
offence where homosexual acts are committed and more than two adult
males are present.  He relies on the events of 3 October 1982 to
illustrate the potential threat to which he is vulnerable.

a) The Government submits that the applicant's home was raided and the
arrests took place on suspicion of men under 21 being involved in
homosexual acts and that the applicant was in fact arrested on
suspicion of procuring such acts.  On investigation, it was found that
these offences had not taken place and the applicant was released.

The European Court of Human Rights stated in the DUDGEON case:

"In the personal circumstances of the applicant, the very existence of
this legislation continuously and directly affects his private
life...."

(Eur. Court H.R., judgment of 22 October 1981, Series A no. 45
para. 41, p. 18)

The first question is then whether the existence of legislation
prohibiting homosexual acts with consenting males under 21, with the
consequence that a suspected offender is liable to arrest, in the
personal circumstances of the applicant, continuously and directly
affects his private life.  It is not however contended before the
Commission that the applicant has, has had or wishes to have
homosexual relations with a male under 21 and that being so the
legislation does not continuously and directly affect his private
life.  Accordingly, the Commission finds that on the facts of the
present case the existence of this legislation does not present any
appearance of an interference with the applicant's rights under
Article 8 (Art. 8) of the Convention.

It follows that this part of the application is manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

b) The applicant however also complains of the provision which makes
it illegal for homosexual acts to be committed when more than two
persons take part or are present.

The Commission notes that a person who commits homosexual acts in such
circumstances or procures others to do so would be liable on first
conviction to a maximum sentence of two years imprisonment. These
offences were therefore not "arrestable offences" within the meaning
of section 2 of the Criminal Law Act 1967 and the police do not have
the power to arrest without warrant or to enter a home for that
purpose.  It would have been necessary for the police to have laid an
information before a magistrate, who would decide whether or not a
warrant should be issued.

The Commission further notes that the entry into the applicant's
apartment was not made on the suspicion that an offence against this
provision was being committed.  The Commission recalls that the
applicant has not alleged that he is disposed to the commission of
homosexual acts when more than two persons take part or are present.
Nor is there evidence that such acts took place in the applicant's
home on 3 October 1982.

The Commission therefore concludes that there is no indication that in
the personal circumstances of the applicant the existence of the
legislative provision making it an offence to commit a homosexual act
when more than two persons take part or are present continuously and
directly affects his private life or his home.  Accordingly, the
existence of this legislation does not constitute an interference with
his right to respect for his private life or his home.

It therefore follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2)
of the Convention.

2.      The applicant further complains that he suffers discrimination
in his enjoyment of the right to respect for his private life and home
since the legislation only applies to male homosexuals.  He complains
that adult heterosexuals and female homosexuals may conduct themselves
in the privacy of their homes as regards consensual sexual activities
without such risk of interference.

Article 14 (Art. 14) provides:

"The enjoyment of the rights and freedoms set forth in this Convention
shall be secured without discrimination on any ground such as sex,
race colour, language, religion, political or other opinion, national
or social origin, association with a national minority, property,
birth or other status."

In examining this complaint, the Commission recalls the principles
established by the European Court of Human Rights in the BELGIAN
LINGUISTIC case (Eur. Court H.R., Belgian Linguistic judgment of
9 February 1967, Series A no. 5) where it was stated that a difference
in treatment should have an objective and reasonable justification and
that there should be a relationship of proportionality between the
means employed and the end sought to be realised.

a) The Commission recalls that the entry into the applicant's home was
made under section 2 of the Criminal Law Act 1967 which enables entry
into a home without warrant to effect the arrest of persons suspected
of having committed a criminal offence punishable with imprisonment of
five years or more.  The criminal offence in question was that of a
male committing a homosexual act with another male under
21.  However, the Commission recalls that it considered this issue in
the cases of X. v. United Kingdom, Application No. 7215/75 (loc. cit)
and in X. v. Federal Republic of Germany, Application No. 5935/72,
Dec. 30.9.75, D.R. 3 p. 46, and concluded that the difference in
treatment between male homosexuals and heterosexuals and female
homosexuals found an objective and reasonable justification in the
criterion of social protection as described and developed in those
cases.  The Commission notes in this context that the Criminal Law
Revision Committee in its Fifteenth Report considered the question of
whether the age of consent for lesbian acts should in fact be raised
to bring it more into line with the age of consent for male
homosexuals.  The Committee however agreed with the Policy Advisory
Committee which recommended that 16 remain the age of consent for
females.  It was found that

"... homosexual relationships tended to arise later in life among
women than among men; that there was no comparable group of 16 to
18 year old girls whose sexual orientation had not yet become fixed
and who were consequently in need of protection by the criminal law;
and that adolescent girls did not seem especially attractive to older
women in search of a partner of the same sex, there being greater
emphasis in male homosexual culture on this age group."

Again, the Commission, while recognising the changing and developing
views on the issue of the age of consent for male homosexuals, sees no
reason to depart from its previous decisions and is of the opinion
that the test of proportionality is satisfied in the facts of the
present application.

Accordingly the Commission finds that the difference in treatment
resulting from legal provisions prohibiting homosexual relations under
the age of 21 does not constitute discrimination under Article 14
(Art. 14) of the Convention.  It follows that this part of the
application must be dismissed as manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

b) The applicant has also complained of discrimination in relation to
the legislation which makes it an offence for homosexual acts to be
committed in the presence of more than two adult males, no analogous
provisions applying to adult female homosexuals or heterosexuals.

The Commission refers again to its previous case-law (Applications
No. 7215/75 and 5935/72 loc. cit) and would apply the same reasoning,
namely, that heterosexuality and lesbianism do not give rise to
comparable social problems.  Accordingly, the Commission finds that
any difference in treatment resulting from this legislation would also
have an objective and reasonable justification in the need to protect
the individual particularly the young and vulnerable.  The Commission
further recalls that the police could not act on suspicion of such
offences involving more than two adult males without first gaining a
warrant from a magistrate.  The Commission finds that the measures of
enforcement which can be taken in relation to such offences are
proportional to the end sought to be realised.

It follows that on the facts of the present case there is no
appearance of a violation of Article 14 (Art. 14) read in conjunction
with Article 8 (Art. 8) and this part of the application must also be
dismissed as manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2).

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE.

        Deputy Secretary                      President
       to the Commission                  of the Commission

         (J. RAYMOND)                      (C.A. NØRGAARD)