R v Ministry of Defence, ex parte Smith

JurisdictionEngland & Wales
Judgment Date03 November 1995
Judgment citation (vLex)[1995] EWCA Civ J1103-13
Docket NumberQBCOF 95/0864/D QBCOF 95/0893/D QBCOF 95/0948/D
CourtCourt of Appeal (Civil Division)
Date03 November 1995
Admiralty Board of the Defence Council
Ex parte Lustig-Prean
Ex parte Beckett
Secretary of State for Defence
Ex parte Smith
Ex parte Grady

[1995] EWCA Civ J1103-13

(Simon Brown LJ and Curtis J)

Before: The Master of the Rolls (Sir Thomas Bingham) Lord Justice Henry and Lord Justice Thorpe

QBCOF 95/0864/D

QBCOF 95/0892/D

QBCOF 95/0893/D

QBCOF 95/0948/D





MR DAVID PANNICK QC and MR P DUFFY (instructed by Messrs Bindman & Partners, London) appeared on behalf of the applicant LT COMMANDER LUSTIG-PREAN

MR DAVID PANNICK QC and MR J BOWERS (instructed by Messrs Wansbroughs, Willey & Hargrove, Sheffield) appeared on behalf of the applicant MR BECKETT

MR DAVID PANNICK QC and MR R DE MELLO (instructed by Messrs Tyndallwoods, Edgbaston) appeared on behalf of the applicant MISS SMITH

MISS LAURA COX QC, MR J COOPER and MISS STEPHANIE HARRISON (instructed by Messrs Tyndallwoods, Edgbaston) appeared on behalf of the applicant MR GRADY

MR STEPHEN RICHARDS, MR J EADIE and MR A TABACHNIK (instructed by the Treasury Solicitor) appeared on behalf of THE RESPONDENTS


Friday 3 November 1995


THE MASTER OF THE ROLLSthe policy which currently governs homosexuals (male and female) in the British armed forces is clear:

"The Ministry of Defence's policy is that homosexuality is incompatible with service in the Armed Forces. Service personnel who are known to be homosexual or who engage in homosexual activity are administratively discharged from the Armed Forces."


As this statement makes plain, proof of homosexual activity is not needed. A reliable admission of homosexual orientation is enough. Where homosexual orientation or activity is clear, the service authorities give themselves no choice but to discharge the member involved without regard to the member's service record or character or the consequences of discharge to the member personally.


These four appellants, three men and one woman, were administratively discharged from the armed forces because they were homosexual. None of them had committed any offence against the general criminal law, nor any offence against the special law governing his or her service. None of them had committed any homosexual act on service premises nor (save in one instance, said to be unwitting) any act involving another member of the service. All of them had shown the qualities required of loyal and efficient service personnel. All of them had looked forward to long service careers, now denied them. Their lives and livelihoods have been grossly disrupted by their involuntary discharge.


The appellants challenge the lawfulness of their discharge and thus, indirectly, of the policy which required them to be discharged. They say that the policy is irrational, and in breach of the European Convention on Human Rights, and contrary to the Equal Treatment Directive. They accept without reservation that any member of the armed services who acts inappropriately towards any other member, or who is guilty of any harassment, or who commits any offence or breach of service discipline, may be discharged administratively, if not on disciplinary grounds. So too if a member's sexual orientation undermines that member's efficiency as a member of the service or is shown to cause demonstrable damage to the service. They claim no right or liberty to commit homosexual acts or to make homosexual advances on the mess-deck or in the barrack-room or in any other service setting. They accept that membership of a disciplined fighting force involves a curtailment of freedoms enjoyed by others in civilian employments, and recognise that the exigencies of service life may properly justify restrictions on homosexual activity and manifestations of homosexual orientation. Their challenge is, and is only, to the blanket, non-discretionary, unspecific nature of the existing policy.


The appellants' challenge was rejected by the Queen's Bench Divisional Court (Simon Brown LJ and Curtis J) on 7 June 1995. But the Court urged the Ministry of Defence to re-examine its policy in the light of changing attitudes and circumstances, and of all available evidence, and we are told that such a review is now in progress. Meanwhile, the appellants contend that the Divisional Court were wrong to reject their challenge.




There can be no doubt that public attitudes to homosexuals and homosexuality have in the past varied widely from country to country, and within the same country at different times, and among different social groups in the same country. Almost any generalisation can be faulted. But there has in this country been a discernible trend, over the last half century or so, towards greater understanding and greater tolerance of homosexuals by heterosexuals, and towards greater openness and honesty by homosexuals. In part this trend has prompted, in part it may have been a result of, legislative change.


Section 1(1) of the Sexual Offences Act 1967 decriminalised homosexual acts between consenting adults in private. It only applied to males, since homosexual acts between women were not criminal anyway. This legislative change, now nearly 30 years ago, followed and gave effect to the report of the Wolfenden Committee in 1957 (Cmnd 247). At that time very few European countries took cognisance of homosexual behaviour between consenting parties in private: see paragraph 59 and Appendix III of the report. It does not appear that that Committee addressed the issues with specific reference to the armed forces. But it is important to note that section 1(1) of the Act did not, by virtue of section 1(5), prevent a homosexual act being an offence (other than a civil offence) under the statutes governing the three services. Any person subject to those statutes remained liable to punishment for homosexual acts. So, by section 2 of the 1967 Act, did the crew of British merchant ships. Plainly, the view was then taken that to permit homosexual acts by or between members of the armed services, or in the special conditions pertaining aboard ship, would be subversive of discipline, efficiency and good order.


The routine quinquennial review of the statutes governing the armed forces has the effect that issues such as the treatment of homosexuals are reconsidered periodically. In 1986 a Select Committee of the House of Commons, despite argument that service law should be brought into line with civilian law, concluded that the law should remain as it then stood. But opinion did not stand still. In 1991 another House of Commons Select Committee returned to the subject. Submissions were then made that service law should be brought into line with civilian law and that homosexual orientation alone should not be a bar to membership of the armed forces. The Select Committee accepted the first of these submissions, seeing "no reason why Service personnel should be liable to prosecution under Service law for homosexual activity which would be legal in civilian law." But they rejected the second submission, concluding that there was "considerable force to MoD's argument that the presence of people known to be homosexual can cause tension in a group of people required to live and work sometimes under great stress and physically at very close quarters, and thus damage its cohesion and fighting effectiveness." The Select Committee were not persuaded in 1991 that the time had yet come to permit the armed forces to accept homosexuals or homosexual activity.


In 1992 the responsible minister announced that in future individuals who engaged in homosexual activity that was legal in civilian law would not be prosecuted under service law. For want of parliamentary time, legislative effect was not given to this change until 1994, when section 146(1) of the Criminal Justice and Public Order Act 1994 was enacted. But section 146(4) provided that this change should not prevent a homosexual act (with or without other acts or circumstances) from constituting a ground for discharging a member of the armed forces.


In upholding the existing policy that homosexual activity or orientation should be an absolute bar to membership of the armed forces the 1991 Select Committee undoubtedly reflected the overwhelming consensus of service and official opinion in this country. It does not appear that the Select Committee required or received any evidence of actual harm done by sexual orientation alone or by private homosexual activity outside the context of service life. Nor does the Select Committee appear to have considered whether the objectives of the existing policy could be met by a rule less absolute in its effect than that which was then applied.


In other areas of national life opinion has shifted. In July 1991 the Prime Minister announced that neither homosexual orientation nor private homosexual activity should henceforth preclude appointment even to sensitive posts in the home civil service and the diplomatic service. The Lord Chancellor has made similar announcements in relation to judicial office. In July 1994 the Royal Fleet Auxiliary introduced an equal opportunities policy stating that it did not discriminate on grounds of homosexuality. A majority of police forces now follow the same policy.


Outside the United Kingdom also, opinion has not stood still. Very few NATO countries bar homosexuals from their armed forces. This practice does not appear to have precluded the closest co-operation between such forces and our own. In the course of 1992–93 Australia, New Zealand and Canada relaxed their ban on homosexuals in...

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