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.
NOT_CONFIDENTIAL
check
001-60695_a8_e1
001-60695_a8_em1
CODE
DIRECT
43208/98
NOT_CONFIDENTIAL
correct
001-60695_a8_e2
001-60695_a8_em2
CODE
QUASI
44875/98
NOT_CONFIDENTIAL
check
001-60695_a8_e3
001-60695_a8_em3
ORG
NO_MASK
United Kingdom
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correct
001-60695_a8_e3
001-60695_a8_em4
DEM
NO_MASK
United Kingdom
NOT_CONFIDENTIAL
check
001-60695_a8_e4
001-60695_a8_em5
PERSON
DIRECT
Mr Terence Perkins
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PERSON
QUASI
Ms R.
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001-60695_a8_e6
001-60695_a8_em7
DATETIME
QUASI
13 July 1998
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DATETIME
QUASI
15 September 1998
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PERSON
QUASI
Mr S. Grosz
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LOC
NO_MASK
London
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001-60695_a8_e10
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ORG
NO_MASK
United Kingdom Government
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PERSON
QUASI
Mr C. Whomersley
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ORG
NO_MASK
Foreign and Commonwealth Office
NOT_CONFIDENTIAL
insert
001-60695_a8_e13
001-60695_a8_em14
ORG
NO_MASK
Royal Navy
SEX
insert
001-60695_a8_e14
001-60695_a8_em15
DEM
QUASI
homosexuality
SEX
insert
001-60695_a8_e15
001-60695_a8_em16
DEM
QUASI
homosexuals
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001-60695_a8_e16
001-60695_a8_em17
DATETIME
QUASI
23 February 1999
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DATETIME
QUASI
5 September 2000
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DATETIME
QUASI
6 November 2000
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DATETIME
QUASI
16 January 2001
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001-60695_a8_e20
001-60695_a8_em21
DATETIME
NO_MASK
1 November 2001
NOT_CONFIDENTIAL
correct
001-60695_a8_e21
001-60695_a8_em22
DATETIME
QUASI
1969
NOT_CONFIDENTIAL
correct
001-60695_a8_e22
001-60695_a8_em23
DATETIME
QUASI
1972
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001-60695_a8_e9
001-60695_a8_em24
LOC
QUASI
London
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LOC
QUASI
Surrey
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DATETIME
QUASI
11 February 1991
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001-60695_a8_em27
ORG
NO_MASK
Royal Navy
NOT_CONFIDENTIAL
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001-60695_a8_e25
001-60695_a8_em28
DEM
QUASI
medical assistant
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insert
001-60695_a8_e26
001-60695_a8_em29
ORG
QUASI
Royal Navy hospital
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001-60695_a8_e27
001-60695_a8_em30
DATETIME
QUASI
22 years
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001-60695_a8_e28
001-60695_a8_em31
DATETIME
QUASI
1992 and 1995
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001-60695_a8_e13
001-60695_a8_em32
ORG
NO_MASK
Royal Navy
NOT_CONFIDENTIAL
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001-60695_a8_e29
001-60695_a8_em33
DATETIME
QUASI
11 February 1995
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001-60695_a8_e30
001-60695_a8_em34
DATETIME
QUASI
1992
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001-60695_a8_em35
DATETIME
QUASI
1993
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001-60695_a8_e32
001-60695_a8_em36
DATETIME
QUASI
1994
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001-60695_a8_e28
001-60695_a8_em37
DATETIME
QUASI
1992 and 1995
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001-60695_a8_e33
001-60695_a8_em38
DATETIME
QUASI
1 August 1995
NOT_CONFIDENTIAL
insert
001-60695_a8_e34
001-60695_a8_em39
ORG
NO_MASK
001-60695_a8_em89
Special Investigations Branch (“SIB”)
NOT_CONFIDENTIAL
check
001-60695_a8_e13
001-60695_a8_em40
ORG
NO_MASK
Royal Navy
SEX
insert
001-60695_a8_e35
001-60695_a8_em41
DEM
QUASI
homosexual
SEX
check
001-60695_a8_e35
001-60695_a8_em42
DEM
QUASI
homosexual
NOT_CONFIDENTIAL
insert
001-60695_a8_e36
001-60695_a8_em43
DATETIME
NO_MASK
10 minutes
NOT_CONFIDENTIAL
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001-60695_a8_e37
001-60695_a8_em44
DATETIME
NO_MASK
18 years
SEX
check
001-60695_a8_e35
001-60695_a8_em45
DEM
QUASI
homosexual
SEX
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001-60695_a8_e35
001-60695_a8_em46
DEM
QUASI
homosexual
NOT_CONFIDENTIAL
check
001-60695_a8_e13
001-60695_a8_em47
ORG
NO_MASK
001-60695_a8_em14
navy
HEALTH
insert
001-60695_a8_e38
001-60695_a8_em48
DEM
QUASI
HIV positive
HEALTH
check
001-60695_a8_e38
001-60695_a8_em49
DEM
QUASI
HIV positive
NOT_CONFIDENTIAL
insert
001-60695_a8_e39
001-60695_a8_em50
ORG
NO_MASK
Ministry of Defence
SEX
check
001-60695_a8_e15
001-60695_a8_em51
DEM
QUASI
homosexuals
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001-60695_a8_e40
001-60695_a8_em52
DATETIME
QUASI
24 October 1995
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insert
001-60695_a8_e41
001-60695_a8_em53
DEM
QUASI
leading medical assistant
NOT_CONFIDENTIAL
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001-60695_a8_e42
001-60695_a8_em54
DATETIME
QUASI
24 January 1996
SEX
check
001-60695_a8_e15
001-60695_a8_em55
DEM
QUASI
homosexuals
NOT_CONFIDENTIAL
check
001-60695_a8_e39
001-60695_a8_em56
ORG
NO_MASK
Ministry of Defence
NOT_CONFIDENTIAL
insert
001-60695_a8_e43
001-60695_a8_em57
ORG
NO_MASK
House of Lords
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check
001-60695_a8_e44
001-60695_a8_em58
DATETIME
QUASI
30 April 1996
NOT_CONFIDENTIAL
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001-60695_a8_e45
001-60695_a8_em59
ORG
NO_MASK
European Court of Justice (“ECJ”)
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001-60695_a8_e46
001-60695_a8_em60
ORG
NO_MASK
Cornwall County Council
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001-60695_a8_e47
001-60695_a8_em61
DATETIME
QUASI
3 July 1996
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001-60695_a8_em62
DATETIME
QUASI
7 March 1997
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001-60695_a8_e45
001-60695_a8_em63
ORG
NO_MASK
001-60695_a8_em59
ECJ
NOT_CONFIDENTIAL
insert
001-60695_a8_e49
001-60695_a8_em64
DATETIME
QUASI
13 March 1997
NOT_CONFIDENTIAL
insert
001-60695_a8_e45
001-60695_a8_em65
ORG
NO_MASK
ECJ
NOT_CONFIDENTIAL
check
001-60695_a8_e39
001-60695_a8_em66
ORG
NO_MASK
Ministry of Defence
SEX
check
001-60695_a8_e15
001-60695_a8_em67
DEM
QUASI
homosexuals
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001-60695_a8_e49
001-60695_a8_em68
DATETIME
QUASI
13 March 1997
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001-60695_a8_e50
001-60695_a8_em69
DATETIME
QUASI
17 February 1998
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001-60695_a8_e45
001-60695_a8_em70
ORG
NO_MASK
ECJ
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001-60695_a8_e51
001-60695_a8_em71
DATETIME
QUASI
2 March 1998
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001-60695_a8_e45
001-60695_a8_em72
ORG
NO_MASK
ECJ
NOT_CONFIDENTIAL
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001-60695_a8_e45
001-60695_a8_em73
ORG
NO_MASK
ECJ
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001-60695_a8_e6
001-60695_a8_em74
DATETIME
QUASI
13 July 1998
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001-60695_a8_e52
001-60695_a8_em75
DATETIME
QUASI
15 July 1998
NOT_CONFIDENTIAL
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001-60695_a8_e53
001-60695_a8_em76
ORG
NO_MASK
Court of Appeal
NOT_CONFIDENTIAL
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001-60695_a8_e54
001-60695_a8_em77
DATETIME
QUASI
30 July 1990
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001-60695_a8_e13
001-60695_a8_em78
ORG
NO_MASK
Royal Navy
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001-60695_a8_e27
001-60695_a8_em79
DATETIME
QUASI
22 years
NOT_CONFIDENTIAL
insert
001-60695_a8_e55
001-60695_a8_em80
DEM
QUASI
radio operator
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001-60695_a8_e56
001-60695_a8_em81
DATETIME
QUASI
May 1991
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001-60695_a8_e57
001-60695_a8_em82
DATETIME
QUASI
June 1992
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001-60695_a8_e55
001-60695_a8_em83
DEM
QUASI
radio operator
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001-60695_a8_e13
001-60695_a8_em84
ORG
NO_MASK
Royal Navy
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001-60695_a8_e58
001-60695_a8_em85
DATETIME
QUASI
September 1993
NOT_CONFIDENTIAL
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001-60695_a8_e59
001-60695_a8_em86
LOC
QUASI
Scotland
HEALTH
insert
001-60695_a8_e60
001-60695_a8_em87
DEM
NO_MASK
emotional distress
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001-60695_a8_e61
001-60695_a8_em88
DATETIME
QUASI
10 September 1993
NOT_CONFIDENTIAL
insert
001-60695_a8_e34
001-60695_a8_em89
ORG
NO_MASK
SIB
NOT_CONFIDENTIAL
insert
001-60695_a8_e62
001-60695_a8_em90
DATETIME
NO_MASK
two hours
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001-60695_a8_e63
001-60695_a8_em91
DATETIME
QUASI
13 September 1993
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001-60695_a8_e64
001-60695_a8_em92
DATETIME
QUASI
31 October 1993
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001-60695_a8_e65
001-60695_a8_em93
DATETIME
NO_MASK
48 hours
NOT_CONFIDENTIAL
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001-60695_a8_e39
001-60695_a8_em94
ORG
NO_MASK
Ministry of Defence
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001-60695_a8_e9
001-60695_a8_em95
LOC
NO_MASK
London
NOT_CONFIDENTIAL
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001-60695_a8_e66
001-60695_a8_em96
DATETIME
QUASI
26 November 1993
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001-60695_a8_e45
001-60695_a8_em97
ORG
NO_MASK
ECJ
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001-60695_a8_e44
001-60695_a8_em98
DATETIME
QUASI
30 April 1996
NOT_CONFIDENTIAL
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001-60695_a8_e46
001-60695_a8_em99
ORG
NO_MASK
Cornwall County Council
NOT_CONFIDENTIAL
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001-60695_a8_e45
001-60695_a8_em100
ORG
NO_MASK
ECJ
NOT_CONFIDENTIAL
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001-60695_a8_e67
001-60695_a8_em101
DATETIME
QUASI
March 1997
NOT_CONFIDENTIAL
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001-60695_a8_e68
001-60695_a8_em102
DATETIME
QUASI
27 January 1998
NOT_CONFIDENTIAL
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001-60695_a8_e69
001-60695_a8_em103
ORG
NO_MASK
Industrial Tribunal
NOT_CONFIDENTIAL
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001-60695_a8_e69
001-60695_a8_em104
ORG
NO_MASK
Industrial Tribunal
NOT_CONFIDENTIAL
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001-60695_a8_e70
001-60695_a8_em105
DATETIME
QUASI
26 March 1998
NOT_CONFIDENTIAL
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001-60695_a8_e69
001-60695_a8_em106
ORG
NO_MASK
Industrial Tribunal
NOT_CONFIDENTIAL
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001-60695_a8_e45
001-60695_a8_em107
ORG
NO_MASK
ECJ
NOT_CONFIDENTIAL
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001-60695_a8_e50
001-60695_a8_em108
DATETIME
QUASI
17 February 1998
NOT_CONFIDENTIAL
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001-60695_a8_e71
001-60695_a8_em109
ORG
NO_MASK
Employment Appeal Tribunal
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001-60695_a8_e72
001-60695_a8_em110
DATETIME
QUASI
22 May 1998
NOT_CONFIDENTIAL
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001-60695_a8_e6
001-60695_a8_em111
DATETIME
QUASI
13 July 1998
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001-60695_a8_e73
001-60695_a8_em112
DATETIME
QUASI
23 July 1998
NOT_CONFIDENTIAL
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001-60695_a8_e71
001-60695_a8_em113
ORG
NO_MASK
Employment Appeal Tribunal
Terence Perkins
GBR
CHAMBER
Task: Annotate the document to anonymise the following person: Terence Perkins