The men, part of the Bolton Seven, as they became known, were found guilty last year in a case that became a cause celebre for civil liberties and gay rights campaigners. All seven had willingly taken part in sexual acts but gay sex is only legal if no more than two persons take part or are present and they are aged 18 or over. In the Bolton case police seized video tapes showing group sex.
Gary Abdie, 22, Jonathan Moore, 21, Mark Love, 21, Derek Godfrey, 26, and another man who was 17 at the time of the offence and cannot be named were all given probation or community service for offences including buggery and gross indecency. Yesterday Mr Justice Maurice Kay, who heard the appeal with Mrs Justice Bracewell, said they had concluded that the imposition of community service orders on the defendants was unfair as none of the five had a previous conviction for a sexual offence.
Probation orders of 12 months were substituted in the case of the 17- year-old as well as Godfrey and Love who had been given combination orders of 12 months' probation and 100 hours of community service. Moore had his two years' probation cut to 12 months and Abdie had 150 hours of community service replaced with a one-year conditional discharge.
However, the Court of Appeal rejected the argument presented on behalf of the five that under the European Convention on Human Rights they should receive an absolute or conditional discharge.
Mr Justice Kay stated that it was up to the trial judge to decide to what extent he took the tenets of the Convention into account. Otherwise there was a danger that judicial discretion would be turned into a "judicial straitjacket".
The judge added that although consensual homosexual offences were not viewed with the same seriousness with which they had been once, the trial judge was technically entitled to pass community service sentences.
Mr Justice Kay noted that the video recorded acts between virtual strangers and the offences might be seen as more serious that private interaction between two individuals.
The five men intend to appeal to the European Court of Human Rights and are also seeking advice on whether they can appeal to the House of Lords, their lawyers said last night. Janet Cragg, of Manchester solicitors Robert Lizar, said the basis of the appeal to Europe would be on grounds of infringement of privacy and human rights. Any appeal to the Lords is expected to be on sentencing rather than conviction.
Evan Harris, the Liberal Democrat MP for Oxford West and Abingdon, who has campaigned for the men welcomed the judgment, but added: "The campaign for the civil rights of these men will not end until Britain's laws no longer discriminate against homosexuals and consenting adults are not criminalised for private consensual behaviour."Reuse content