United Kingdom Journals

Gay Men and Part 1 of the Sex Offenders Act, 1997

Helen Power

Senior Lecturer in Law
University of Glamorgan
<hpower@glam.ac.uk>

Copyright © 1998 Helen Power.
First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.

Summary

Part 1 of the Sex Offenders Act 1997 implements a system of registration with the police by certain convicted and cautioned sex offenders considered dangerous. However, amongst the offences made registrable by the Act, and the only consensual ones, are those between gay men, yet little discussion was devoted to this during the Act's Parliamentary passage. The result is likely to be a pointless intrusion on the freedom of movement and sexual autonomy of gay men, at least until, one way or another, the gay age of consent to sex is brought into line with the recent European Commission on Human Rights' ruling in Sutherland v UK (1997) (which was to the effect that an age of consent to gay sex of 18 is both discriminatory and a breach of gay men's right to privacy).

Contents

1. Introduction

2. The consensual gay offences within the scope of the 1997 Act

3. Rationale for inclusion

4. Impact of Part 1 of the 1997 Act on gay men

5. The human rights dimension

• a. The European Commission's ruling in Sutherland v UK (1997)
• b. The Human Rights Bill 1997

6. Conclusions

Bibliography

1. Introduction

Part 1 of the controversial Sex Offenders Act 1997,⁽¹⁾ which received the Royal Assent under the Conservative government on 21st. March, came into effect on 1st. September, 1997, thus implementing a system requiring certain convicted and cautioned sex offenders to register with the police. Unreasonable failure to register with the police, or the provision of false information to them, attracts liability for a distinct crime (SOA 1997, s. 3).

In announcing the implementation of Part 1, Labour Home Office Minister Alun Michael stressed the Act's concern with the regulation of paedophilia:

"Paedophiles devastate the lives of children, bring misery to their parents and can create fear throughout local communities. That is why we campaigned for a paedophiles register and backed the Sex Offenders Act from the beginning. And that is why I have pushed to get the Act up and running as quickly as possible...We owe it to our children to make sure that the system put in place to protect them actually works in practice." (Home Office 1997f)

The Act's focus on the protection of children was so central to its passage through Parliament and to its reception by the media, that it rapidly acquired the informal title of the "paedophile Bill", a fact acknowledged by David Maclean, then a Home Office Minister, during the Commons' Second Reading debate.⁽²⁾ In the Home Office announcement of the implementation of Part 1, referred to above, the simple statement that "[t]he...Act will help the police to protect the public from those who seek to harm children" is made without more and, presumably in a bid to satisfy the public that the Act is a `tough' measure of crime control, the press release comes close to boasting about the lack of any right of appeal against registration. As Soothill et al suggest -

"Sex offending is clearly on the political agenda. Paedophiles and offences against children have in various ways provoked the most concern since the late 1980s. Now both the main political parties see votes in making life uncomfortable for convicted sex offenders." (1997, p 482)

Life certainly has been made more uncomfortable for sexual offenders, at least if measured by the plethora of legislation enacted since publication, in June 1996, of the Conservative Government's Consultation Paper, Sentencing and Supervision of Sex Offenders (Home Office 1996). That document contained five major proposals, all but one of which have been enacted:

• a register of sex offenders maintained by the police: Part 1 of the SOA 1997
• extension of the supervision of convicted sex offenders following their release: Crime (Sentences) Act 1997
• extension of the existing power to extract DNA samples without consent (created by the Police & Criminal Evidence Act, 1984 - PACE) to those convicted of sexual offences prior to the creation of the PACE power: Criminal Evidence (Amendment) Act 1997
• prohibition of the pornographic use of criminal evidence - specifically, victims' statements and photographs: Sexual Offences (Protected Material) Act 1997
• a ban on sexual offenders working with, or seeking to work with, children: this is not yet in legislative, nor Bill, form, though a separate Consultation Paper dealing with this proposal was published in January 1997.⁽³⁾

The Labour Government has added to this list a sixth proposal, formulated in response to concern that the SOA 1997 will not be able to cope with the estimated 100,000 sexual offenders in the UK in 1993 who would have been required to register had the Act been in force at the date of conviction or caution.⁽⁴⁾ The proposal (Home Office 1997c), now contained in clause 2 of the Crime and Disorder Bill 1997 (currently being considered by Parliament), is that a new `sex offender order' be available, at the behest of the police, preventing sex offenders from hanging around children's playgrounds, schools and so on - breach of the order would itself attract criminal liability.

Certainly the predominant concern of the SOA 1997 (and of the other legislation referred to above) is with sexual offences relating to children and young teenagers. The most serious of the offences attracting the registration requirement under the SOA 1997 (listed in Schedule 1, para. 1(1)) relate to non-consensual sexual assaults on the young under the Sexual Offences Act, 1956 (SOA 1956): intercourse with a girl under 13 (SOA 1956, s. 5); intercourse with a girl between 13 and 16 (SOA 1956, s. 6) if the offender is 20 or more yrs. old (para. 1(2)(a) of the 1997 Act); and causing or encouraging intercourse with, or indecent assault on, or the prostitution of, a girl under 16 (SOA 1956, s. 28). Further offences involving children and requiring the offender to register with the police are indecency with or towards a child under 14 (Indecency with Children Act 1960, s. 1) and inciting a girl under 16 to incestuous intercourse (Criminal Law Act 1977, s. 54). Child pornography is covered via the offences of possessing an indecent photograph of a child under 16 (Criminal Justice Act 1988, s. 160); taking, possessing (with a view to showing, distributing or publishing), showing, distributing or publishing an indecent photograph of a child under 16 (Protection of Children Act 1978, s. 1) and the fraudulent evasion of duty on goods unlawfully imported (Customs & Excise Management Act 1979, s. 170). Inciting, conspiring to commit, and attempting these offences, as well as counselling, procuring, aiding or abetting others in their commission are also registrable offences.

What is perhaps not as widely understood is that the registration requirements under SOA 1997 (and certain of the provisions under the other legislation referred to) apply in certain circumstances to offences against adults and teenagers of 16 and 17 yrs. old. Thus, anyone cautioned for or convicted of rape is required to register, whatever the ages of the offender and the victim. Incest by a man (SOA 1956, s. 10) with a victim under 18 (para. 1(2)(b) of the 1997 Act) carries the same requirement. Indecent assault on a woman (SOA 1956, s. 14) or on a man (SOA 1956, s. 15) under 18 leads to registration, and the age limit for the victim does not apply at all for these two offences if the offender has received a sentence of 30 or more months' imprisonment or has been subject to hospitalisation under a restriction order (para. 1(3) of the 1997 Act). It may be argued that, as all of these are serious offences involving, by definition, non-consensual sexual assaults on adults and teenagers, they should be subject to the Act's registration requirements, given the danger to adults and teenagers posed by those prepared to commit the offences.⁽⁵⁾

However, whatever one's views of the wisdom of the 1997 Act's registration requirements, what was surely worthy of far greater discussion than it received during the passage of the Bill through Parliament is that the Act goes beyond these non-consensual offences against adults and young persons to embrace consensual sexual activities between gay men? Provided that the (male gay) offender himself is 20 or more yrs. old and his `victim' (actually the other party to the `crime') is 16 or 17 yrs. old, the offender will have to notify the local police of his name(s), date of birth and address (and any change of name(s) or address) (SOA 1997, s. 2), and any absence from the locality of 14 or more days in any 12 month period; and remain on the register - for five years if he is merely cautioned, or given a non-custodial sentence following conviction, for seven years if he receives a custodial sentence of six or fewer months, for 10 years if he receives a custodial sentence of 6-30 months, or for an indefinite period if he receives a sentence of more than 30 months (SOA 1997, s. 1(4)). `Registration' in reality means that the offender's details are entered on the Police National Computer, as well as being retained by the local police (Home Office 1997d, App. B, para. 13).

The inclusion of these gay sexual activities in the SOA 1997 raises several questions: why were they included? What will the impact of their inclusion be on gay men? How well does their inclusion stand up to scrutiny from a human rights perspective? It is with these questions that the remainder of this article is concerned.

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2. The consensual gay offences within the scope of the 1997 Act

The specific consensual homosexual activities caught by the Act (Schedule 1, para. 1(1)(a)(v) and (vi)) are `buggery' (anal intercourse - an indictable-only offence) and `gross indecency' (any sexual act other than intercourse - a triable-either way, and therefore indictable, offence) under ss. 12 and 13 respectively of the SOA 1956 (as amended). Section 12 provides that it is a crime "for a person to commit buggery with another person...", whilst s. 13 provides that it is an offence "for a man to commit an act of gross indecency with another man, whether in public or in 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 net effect of these provisions is that all male gay sexual acts are criminal, unless committed in the circumstances specified in amendments enacted by the Sexual Offences Act 1967 (SOA 1967) and the Criminal Justice & Public Order Act 1994 (CJPOA 1994). The circumstances - all of which must be met - in which sexual acts between men are not criminal are that both men are aged 18 yrs. or more⁽⁶⁾ and their consensual sex is engaged in privately.⁽⁷⁾ Since 1994, `buggery' is by definition consensual: non-consensual anal intercourse was redefined by CJPOA 1994, s. 142 as rape and it has been held that rape, rather than buggery, must be charged where the prosecution is alleging lack of consent, regardless of the sex of the victim (R v Davies (Tarian John) [1997] Times 22 Oct, CA). Of relevance to gay men is that the maximum punishment for both offences is two years' imprisonment where one of the men is 20 and the other is 16 or 17 or, where one of the parties is 21 yrs. or more old and the other is 16 or 17, five years.⁽⁸⁾

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3. Rationale for inclusion

In its 1996 consultation document, Sentencing and Supervision of Sex Offenders, the Government clearly intended to exclude buggery and gross indecency from its registration proposals (see Home Office 1996, App. A, pp 19 and 20). Presumably, this was because the Government was at that time reluctant to target those engaging in consensual sex. Such reluctance can be detected in the following passage:

"The requirement [of registration] would probably best be targeted on those who are convicted of any sexual offence which is sufficiently serious to attract the possibility of custody...There are, however, some difficulties with any such list [of offences]. The circumstances of an offence vary considerably: for example, unlawful sexual intercourse may occur between a young consenting couple; or it may be committed by an older man exploiting a position of authority over a young girl." (Home Office 1996, para. 46, p 9: emphasis added)

Nevertheless, by the time the proposals were translated into the Bill laid before Parliament which became the SOA 1997, ss. 12 and 13 were included. During the Commons' Second Reading debate of the Bill, David Maclean stated:

"It is the paedophile and the serious sex offender whom we are targeting. That is why a number of offences that would otherwise attract registration have age-related exemptions. Some people have sought to argue that all consensual homosexual acts should be excluded, but we must be careful that, in seeking to exclude consensual sex offences from the requirement to register, we do not inadvertently place under-18 year-olds at risk...The age exemptions focus on consensual teenage sex and adult homosexual acts. By restricting the age exemption in this way, we have been mindful of the possibility of manipulative and coercive pressure being exerted by older people on younger impressionable people." (HC Debs, vol 289, col 27: emphases added)

The impression clearly given here is that amongst the targets of the 1997 Act are old gay men preying on the very young, an impression easily conveyed to, and none-too closely questioned by, a Parliamentary (and, indeed, extra-Parliamentary) audience steeped in the myth of "youth seduction", according to which gay men are basically paedophiles, seduced in their youth, and thus destined in their turn to `corrupt' another generation by seduction. This attitude is implicit in Maclean's reference to the older man's "manipulative and coercive pressure" - by implication, the younger man's consent is inevitably coerced. The Parliament which, in 1994, rejected 16 as an acceptable age of consent for male gay sex (the age at which lesbian and heterosexual sex is lawful) by 307 votes to 280 and overwhelmingly voted for 18 by 427 to 162 votes, ostensibly in order to protect "vulnerable" young men, was the same Parliament which enacted the SOA 1997. One particularly strident expression of support for the myth of youth seduction was contained in a recent article in The Times by Roger Scruton (Scruton 1997), who attacked what he regards as the "sexual supermarket" created by liberal attitudes which fail to take account of the predatory intentions of older gay men: male homosexuals, he asserts, "have a tendency to promiscuity", a "natural predatoriness" of which "the preferred object of desire is a youth." Unchecked by repression which at its best leads to "a generalised and non-familial interest in the young", gay men, Scruton hints, instead of becoming the "priests, teachers, Scoutmasters and team coaches" of yesteryear, the "`father' or `mother' to everyone's children", could become something else. Though he does not specify what it is that unchecked homosexual desire might become, it is clear Scruton has in mind that gay men might acquire paedophile tendencies.

Whilst it would be straining credulity to suggest that all those who voted for the 1997 Act were actively buying into a version of the myth of youth seduction as virulent as Scruton's, nevertheless the very fact that minimal attention was paid to the Act's impact on gay men speaks to an implicit, taken-for-granted homophobic fear of gay men's sexuality. Yet, even allowing for the fact that in some cases a young person's consent is coerced (and this may be so regardless of the gender of those involved), what Maclean (and Parliament) overlooked is that the criminal law's requirements for valid consent in cases of rape and indecent assault are already sufficiently stringent to accommodate cases of coercion. Thus, in Olugboja [1982] QB 320, 331, Dunn LJ drew a distinction between valid consent and mere submission:

"[The jury] should be directed that consent, or the absence of it, is to be given its ordinary meaning and if need be, by way of example, that there is a difference between consent and submission; every consent involves a submission, but it by no means follows that a mere submission involves consent."

More recently in McAllister [1997] Crim LR 233, Brooke LJ stated:

"The focus of the inquiry in all these cases is based on the sexual autonomy of the complainant. The circumstances of a possibly reluctant consent may be infinitely varied, and on each occasion the jury has to decide whether an alleged agreement to a sexual act may properly be seen as real consent or whether it should be regarded as a submission founded on improper pressure which this particular complainant could not reasonably withstand from this particular defendant." (emphasis added)

A coerced consent resulting from improper pressure may thus require a sexual encounter between a 16 or 17 yr. old gay youth and an older man to be more properly characterised as rape or indecent assault. Why, then, could not such encounters be properly dealt with for the purposes of the Sex Offenders Act 1997 by these offences rather than by the inclusion of buggery and gross indecency in the category of registrable offences?

The dangers inherent in bluntly categorising gay men's sexual activities with those of sex offenders against children and the very young are amply demonstrated by a recent statistical analysis undertaken by Soothill and Francis. They note that -

"[S]exual offenders are not a homogeneous group. Most rapists are violent men, committing a disproportionate number of other kinds of violent offences, bigamists appear in the criminal statistics on other occasions for deception charges, and so on." (Soothill and Francis 1997, pp 1285-1286)

Quite so. They might have added that gay men convicted of buggery or indecency in 1973 (the start date for the purposes of their analysis) cannot be assessed for their long-term dangerousness (in terms of the likelihood of their being reconvicted) simply because an unknown number of those men will have been convicted for consensual sex. It is a pity, then, that in their analysis, designed to assess the efficacy of the registration periods specified by the 1997 Act, Soothill and Francis reproduce the myth of the gay-man-as-paedophile:

"a long-term follow-up reveals that a much higher proportion of those convicted of buggery are potential sexual threats for a much longer period than those convicted of indecent assault against a female." (1997, p 1286)

In their statistical tables, Soothill and Francis characterise those convicted of buggery and attempted buggery against `victims' under 18 as "paedophiles", whilst those convicted of indecent assault against females under 16 are characterised as "adult predators"(1997, Tables 3 and 4, p 1324). This instantly characterises the former as inherently more dangerous than the latter. Not only do Soothill and Francis not distinguish between the consensual and non-consensual activities of their cohort of "buggers" (as they refer to them), but they make no attempt to qualify their stark analysis by reference to the very public and specifically targeted law enforcement methods to which gay men have been subjected - had they done so, they would undoubtedly not have felt able to draw the above bald conclusion as to the long-term dangerousness of gay men. It is ironic that gay men are distinguished from heterosexual offenders, but in a manner designed to `demonstrate' scientifically the greater threat they pose to the community. It is also dangerous for gay men, at least in so far as the advice implicit might be heeded by governments susceptible to pressure to be seen to do more to control sex offenders.

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4. Impact of Part 1 of the 1997 Act on gay men

Exactly how the registration requirement will impact on gay men it is difficult to predict, given the degree of discretion available to the police at all stages of dealing with an individual suspected of a crime. Enforcement practices, both as to type and intensity, in relation to gay men differ from time to time and from one police force to another. A prevailing hostile climate of opinion can seriously impact on gay men's subjection to the enforcement of the criminal law, as it did for instance following the partial decriminalisation of men's sex under the 1967 Act (Walmsley and White 1979) and again following the enactment of s. 28 Local Government Act 1988 (Power 1993), itself a product of the anti-gay climate generated by the AIDS scare which reached a peak in the mid-1980s. Whilst some police forces continue to engage in the routine entrapment of gay men by officers acting as agents provocateurs, or by the maintenance of a level of surveillance of gay `cruising' areas (public toilets - "cottages" in the gay vernacular, parks, gay clubs and so on)<sup>(9)</sup> which is simply not the case for semi-public heterosexual activities,<sup>(10)</sup> others work with their local gay community and may arrive at local `agreements' that routine surveillance will be suspended in certain areas or for certain periods of time (though such `agreements' are liable to be disrupted in response to complaints from the public). Yet others are beginning to pay greater attention to gay men as the victims of crime by monitoring homophobic attacks committed against them ("gay bashing").⁽¹¹⁾ The result is that it can be especially difficult for a gay man, when he goes from one police area to another, to know whether his sexual activities are going to be overlooked by the local police, or become the subject of criminal proceedings.

The options available to the police following an arrest are essentially three-fold: they can opt for `NFA' (no further action), they can formally caution the suspect or they can charge the suspect (who, of course, may nevertheless not be proceeded against by the CPS). Approximately 25% of all arrests result in NFAs, but, as this is a largely unresearched area of police discretion for which there are no official figures available, it is not possible to say whether a similar proportion of arrested gay men have no further action taken against them.⁽¹²⁾

Far more serious for the arrestee, of course, is a formal caution or a charge leading to prosecution (though the latter outcome, in the case of men arrested for indictable consensual gay offences, is extremely rare).⁽¹³⁾ In its 1996 consultation document, it is clear that the Government then had in mind registration only for those convicted of sexual offences (Home Office 1996, paras. 41-46, pp 8-9), but the Act additionally requires inclusion on the register of people merely cautioned for sex offences. Home Office research on the prevalence of convictions for sexual offending reveals that in 1995 there were 2,200 cautions of men for indictable sexual offences, of which over 1,000 related to offenders under 21 - although "it is not possible to say how many [of these] would have resulted in a requirement to register" (Marshall 1997, p 2), it is clear that a proportion of them would have done so and that some of these would have been young gay men. A formal caution amounts to an admission of guilt which is entered on the Police National Computer and can be relied on by the police in subsequent court proceedings. Home Office guidelines indicate that a caution is only to be given where, in addition to the offender's admission of guilt, there is sufficient evidence of the offender's guilt to give a "realistic prospect" of conviction and the offender consents to being cautioned (Home Office 1994). In other words, cautioning is supposed to be an alternative to prosecution, rather than an alternative to NFA, but there is some evidence that cautions are sometimes given in the absence of sufficient evidence of guilt (Sanders and Young 1994, pp 231-232). Soothill et al note that in the case of gross indecency, the cautioning rate "suddenly shot up from around 12% in 1989 to 55% in 1993" before declining again to around 42% in 1995 (1997, p 485). Although a similar, though less marked, decline in the use of cautions is evident for all crimes,⁽¹⁴⁾ Soothill et al note that "[t]he sudden decline in cautioning rates for sex offences...is quite exceptional when compared to any other category of offending..." (1997, p 486). Noting that particularly puzzling is the contrast with the continued increase in the rate of cautioning for violent crime which, in popular rhetoric, is treated as seriously as sex offending, Soothill et al speculate that perhaps -

"the police have taken the view that sexual offences are a special case - possibly influenced by the developing concerns about paedophilia...Whatever the explanation, the substantive point is that the cautioning guidelines are subject to variable interpretation contingent upon police perceptions of `real world' issues."(1997, pp 486-488)

It may be that men arrested for gay offences seek to avoid the publicity attendant on a contested court appearance and are therefore likely to prefer a caution. Although the number of these offences recorded by the police fell between 1995 and 1996 by 12.2% in the case of buggery and by 24.2% in the case of gross indecency, the number recorded for each offence is still high: in 1996, 718 offences of buggery and 551 offences of gross indecency were recorded by the police (Home Office 1997b, Table 7, p 21). The threat to a gay man of a caution, and thus registraton, is therefore not illusory.
Soothill et al have speculated that the inclusion of cautioned offenders on the register might tempt police forces to resort to cautioning more frequently to avoid the possibility of an acquittal or a successful appeal from a conviction, and as a device for the gathering of intelligence on sex offenders. On the other hand -

"there will be at least two kinds of pressure to avoid using cautioning - the police may want to avoid trouble which might follow from increased scrutiny of and challenge to their use of cautioning, while accused sex offenders may want to exercise their right to a trial and reject the caution option." (1997, p 489)

Either way, one might well ask how many young gay men are likely to be aware of the full consequences of a seemingly attractive option to accept a caution. The Home Office Circular on the 1997 Act, giving a wide range of criminal justice agencies, including the police, guidance on their operational procedures under the Act, states -

"It is essential that a person deemed suitable for a caution for...an offence [under the Act] is informed of the consequences of accepting a caution before consent to caution is sought. If such information is not given in advance of administering a caution, an offender would not be able to give his informed consent and the caution would therefore be invalid." (Home Office 1997d, App B, para. 8)

The copies given to offenders of the certificate of caution and of the acknowledgement of registration⁽¹⁵⁾ do spell out the fact of registration itself and the obligations it imposes on the offender. However, what neither the Act itself nor the Circular requires is that an offender be informed that registration might lead to disclosure by the police of the offender's details to a range of public agencies and even, exceptionally, to members of the public. The Circular does accurately reflect the spirit of the few legal rulings that there have been on disclosure by the police to members of the public, the most recent of which is R v Chief Constable of North Wales, ex p. AB and CD [1997] 4 All ER 691, DC. The Court upheld a decision of Wrexham Police (following a force policy on disclosure of information relating to convicted paedophiles and acting with the support of the local social and probation services) to inform a caravan site owner of the presence of two dangerous sex offenders (a married couple) on his site. The disclosure was made because of the imminent arrival on the site of children on their Easter holidays, and because an attempt by the police to persuade the offenders to visit a psychiatrist and to move away from the site failed. The Court approved a general presumption against disclosure to private third parties, except where disclosure is justified "for the purpose of preventing crime or alerting members of the public to an apprehended danger" of which there is a specific risk in the particular circumstances of the case.
Now, whilst in the light of this approved approach the chance of information from the register relating to gay men being disclosed to members of the public is doubtless minimal, nevertheless the chance remains. If this is thought to be preposterous because consensual gay activities between a 16 or 17 year old and his partner are rarely, if ever, going to be considered a cause for police concern, then one must ask what purpose is supposed to be served by having gay men on the register in the first place. The whole purpose of the 1997 Act is supposed to be to enhance the control by the police and other agencies of paedophiles and other dangerous sex offenders (whether it will achieve this is another matter, of course). In the result, registration appears to be both pointless and unnecessarily intrusive on gay men's sexual autonomy and privacy - a matter on which the European Commission on Human Rights has recently ruled.

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5. The human rights dimension

a. The European Commission's ruling in Sutherland v UK (1997)

Many European countries have equal ages of consent - it is, for instance, 15 in Holland, Greece, France, Poland, Sweden and Denmark, 16 in Norway, Belgium, Portugal, Luxembourg and Switzerland and 17 in Ireland (Malta and Spain are exceptional in having a very low age: 12). In July 1997, the European Commission ruled in Sutherland v UK (App. No. 25186/94, 1 July 1997) that UK law's higher age of 18 for consent to male homosexual sex amounts to a breach of the privacy rights of young gay men under Article 8(1) of the Convention which cannot be justified under Article 8(2) as a necessary and proportionate measure by the state to protect gay youths' health or morals or to protect the rights and freedoms of "vulnerable and inexperienced youth". Moreover, the Commission ruled, the higher age of consent amounts to a breach of Article 14 of the Convention, which provides that the rights and freedoms protected under the Convention - including, therefore, the right to privacy under Art. 8 - shall be secured without reference to "sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status." Conspicuous by its absence from this list is sexual orientation. The Commission dealt with this summarily: refusing to decide whether "sex" or "other status" could be interpreted so as to include sexual orientation, the majority considered that it was "not required to determine [this issue]...In either event, it is a difference in respect of which the Commission is entitled to seek justification." (para. 51). In so ruling, the Commission was departing somewhat from its own and the Court's caselaw, the gist of which was that governments are permitted to interfere with the privacy rights of homosexuals under Article 8(1) of the Convention to the extent necessary to protect the rights and freedoms of others and to protect morals (paras. 38 and 39). Accordingly, it seemed to be a matter for signatory states to determine the age of consent to gay sex (technically, it was within the wide "margin of appreciation" permitted to states). The Commission in Sutherland preferred a narrow margin of appreciation because the privacy rights in issue related to an intimate part of a person's life - his sexual autonomy.

The Government clearly expected to lose the case, having apparently received "very strong advice" to this effect (The Guardian 1997). Following the Commission's ruling, the Government announced that it would ask the European Court of Human Rights to defer the case as it would be "a waste of public money to pursue the case until Parliament [had] had a chance to express its view on the issue."(Home Office 1997g). Precisely when Parliament will be given the opportunity to debate the issue is not clear. In the meantime, the Government has been careful to stress its "neutrality: it was only offering a free vote, not recommending reduction to 16." (The Guardian 1997). As suggested by Bowley (1997), this begins to look like a cynical political manoeuvre designed to enable the Government to distance itself from the outcome and, ultimately, if a European Court ruling proves necessary, to blame the European Court for the near-inevitability of a change in the law. However, it may be that the Government's hand may be forced sooner than it expects, thanks to its own initiative in laying the Human Rights Bill before Parliament.

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b. The Human Rights Bill 1997

The Government's Human Rights Bill, currently being considered by Parliament, will incorporate the European Convention on Human Rights into UK law. Under clause 4, British courts are to be given power to declare an incompatibility between existing UK law and any of the incorporated convention rights. If this Bill is enacted before Parliament has had a chance to debate the gay age of consent being promised at some indeterminate future date by the Government, it may well be the case that a gay man charged with gross indecency or buggery with a consenting partner of 16 or 17 will seek from a British court a declaration of incompatibility between these offences as currently defined and the incorporated convention rights under Articles 8 (privacy) and 14 (prohibition on discrimination). Additionally, he might argue that, in view of their being offences targetted at consensual sexual activities, the inclusion of gross indecency and buggery in the schedule of registrable offences under the SOA 1997 is itself a discriminatory breach of his right to privacy. Where such a declaration is granted - and, though not inevitable as ECHR jurisprudence will not be binding on UK courts in the way that European Court of Justice rulings on European Union law are, it is nevertheless exremely likely in view of Sutherland - then clause 10 of the Bill provides for a `fast track' procedure, initiated at the discretion of a Government Minister, for amending legislation to bring domestic law into conformity with the incorporated rights. It may be, however, that such a move will be forestalled by the Director of Public Prosecutions (DPP), whose consent is required for prosecutions against any man for buggery or gross indecency with another where either man was under 21 at the time of the offence:⁽¹⁶⁾ it is almost inconceivable, in the wake of Sutherland, that the DPP would give his consent to any such prosecution.

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6. Conclusions

Whether as a result of a ruling by the European Court of Human Rights or of a domestic judicial declaration of incompatibility, or by means of the Government's promised free vote on the issue, it is only a matter of time before the age of consent to sex is equalised for gay men. When that occurs, the Sex Offenders Act 1997 will have to be amended so as to remove buggery and gross indecency from the schedule of registrable offences (indeed, there is a case for saying that the offences will become altogether redundant, not merely for the purposes of registration). In the meantime, gay men will have been put on the register for no good reason but at some administrative cost to the police and, far more importantly, at some considerable cost to the men's civil liberties.

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(1) . Hereinafter referred to as SOA 1997 and the 1997 Act.
(2). "For shorthand, we have tended to call it the `paedophiles Bill' and to talk about the paedophiles register...", HC Debs, vol. 289, col. 26
(3). Home Office 1997a. In addition to the proposals relating to sex offenders in the UK, there have been legislative developments pertaining to "sex tourism": Sexual Offences (Conspiracy & Incitement) Act 1996 and Part II, SOA 1997 - for discussion, see Alldridge 1997a and 1997b
(4). The estimate was generated by Home Office research: Marshall 1997, p 4
(5). For discussion of the registration requirement, see Cobley 1997. For a polemic against the Act, see Parris 1997
(6). Section 145(1), CJPOA 1994. Prior to the 1994 amendment, s. 1(1) of the 1967 Act stipulated 21 as the age of consent to homosexual sex.
(7). Private sex between men has a more restricted legal meaning than it does for heterosexual sex and lesbian sex: by virtue of) SOA 1956, s. 12(1B, as amended by CJPOA 1994, s. 143, "An act of buggery by one man with another shall not be treated as taking place in private if it takes place - (a) when two or more persons take part or are present; or (b) in a lavatory to which the public have or are permitted to have access, whether on payment or otherwise."
(8). CJPOA 1994, s.144. In all other cases the maximum is two years or, in the case of `buggery', where one of the parties is under 16, life.
(9). See, for examples, The Pink Paper 24 March 1995, p. 1; Gay Times September 1995, p. 27.
(10). See, for contrasting responses by the police, The Independent 7 August 1992 and The Independent on Sunday 27 October 1991.
(11). For discussion, see Lewisham Gay Alliance 1992. The gay media regularly report on local enforcement practices: see The Pink Paper (weekly) and Gay Times (monthly).
(12). McConville, Sanders & Leng 1991, Table 10, p 104 (there are no official figures on the numbers of NFAs).
(13). See HC Debs, vol. 235, col. 470. The position is very different in relation to charges of indecent assault on a man (non-consensual and indictable) and charges of soliciting or importuning for an immoral purpose (SOA 1956, s. 32: summary-only).
(14). This was probably as a result of the revised Home Office cautioning guidelines issued in 1994 which were a response to criticisms that cautioning rates were inconsistent between forces, that repeat cautioning of offenders was too frequent and that inappropriate cautions were being given in serious cases. For the results of the Home Office's research on the impact of the Circular, see Evans and Ellis 1997.
(15). The proforma are at Annexes D and B respectively of the Circular (Home Office 1997d).
(16). SOA 1967, 3. 8 - strangely, not amended by the CJPOA 1994 to accommodate the reduced age of consent.