LONDON, United Kingdom — The Judicial Committee of the Privy Council has unanimously ruled in favour of LGBTQ activitist Jason Jones in his long-running legal challenge to sections of Trinidad and Tobago’s Sexual Offences Act that criminalise private, consensual sexual activity between adults of the same sex.

In a judgment delivered on November 10, the court allowed Jones’s appeal and dismissed a cross-appeal by the Attorney General, finding that sections 13 and 16 of the 1986 Act are not protected from constitutional scrutiny by the existing-law provisions of the Constitution.
The ruling means the provisions, which criminalise buggery and serious indecency, cannot be upheld under the Constitution’s protection for legislation passed by a special majority because they are not reasonably justifiable in a society that respects individual rights and freedoms.

Jones, a gay man, challenged the provisions on the grounds that they violated his fundamental rights, particularly the right to respect for private and family life under section 4(c) of the Constitution.

He told the court that he had experienced harassment, discrimination and violence because of his sexual orientation, while also living with fear of arrest and prosecution under the law.

The case centred on whether the 1986 Act was protected from constitutional challenges as existing law under section 6 of the Constitution, or whether it could remain in force under section 13, which allows Parliament to pass legislation that is inconsistent with certain fundamental rights if it meets specified conditions.

The Privy Council held that the 1986 Act was a new and comprehensive legislative regime, rather than simply a repeal and re-enactment of laws that existed before the Constitution came into force in 1976. It therefore did not qualify for protection under section 6(2).

The court also rejected the Attorney General’s argument that the laws should be assessed according to the circumstances that existed when they were enacted in 1986.

It said the relevant time for determining whether the provisions are reasonably justifiable is when an individual’s rights are being challenged before the court.

In its reasoning, the Privy Council said the ability to form an intimate and loving relationship with another person lies at the core of the right to private and family life.

It found that criminalising private, consensual same-sex relations interferes with a fundamental aspect of an individual’s life and identity.

The Attorney General had argued that the provisions reflected traditional and long-standing laws. However, the court said evidence would be needed to establish the strength of that tradition and its consistency with prevailing societal values. No such evidence was presented.

The judges concluded that the interference with Jones’s private life was too severe for the provisions to be considered a fair balance or reasonably justifiable under the Constitution.

The judgment was delivered by Lord Sales and Lord Burrows, with Lord Reed, Lord Briggs and Lady Rose agreeing.

The Privy Council will receive further written submissions from the parties before making its final order on the modifications required to bring sections 13 and 16 into line with Jones’s constitutional rights. Its provisional view, however, is that the order made by the High Court should be upheld