Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 24839/94

Phyllis BOWMAN

against

the United Kingdom

REPORT OF THE COMMISSION

(adopted on 12 September 1996)

TABLE OF CONTENTS

page

I. INTRODUCTION

(paras. 1-16) . . . . . . . . . . . . . . . . . . . . . . . . 1

A. The application

(paras. 2-4). . . . . . . . . . . . . . . . . . . . . . . 1

B. The proceedings

(paras. 5-11) . . . . . . . . . . . . . . . . . . . . . . 1

C. The present Report

(paras. 12-16). . . . . . . . . . . . . . . . . . . . . . 2

II. ESTABLISHMENT OF THE FACTS

(paras. 17-27). . . . . . . . . . . . . . . . . . . . . . . . 3

A. Particular circumstances of the case

(paras. 17-25). . . . . . . . . . . . . . . . . . . . . . 3

B. Relevant domestic law and practice

(paras. 26-27). . . . . . . . . . . . . . . . . . . . . . 4

III. OPINION OF THE COMMISSION

(paras. 28-49). . . . . . . . . . . . . . . . . . . . . . . . 6

A. Complaint declared admissible

(para. 28). . . . . . . . . . . . . . . . . . . . . . . . 6

B. Point at issue

(para. 29). . . . . . . . . . . . . . . . . . . . . . . . 6

C. Article 10 of the Convention

(paras. 30-49). . . . . . . . . . . . . . . . . . . . . . 6

CONCLUSION

(para. 49). . . . . . . . . . . . . . . . . . . . . . . .10

DISSENTING OPINION OF MR. F. MARTINEZ . . . . . . . . . . . . . . .11

APPENDIX: DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION . . .. . . . . . 12

I.INTRODUCTION

1. The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A. The application

2. The applicant is Phyllis Bowman, a British citizen born in 1926

and resident in London. She is represented by Mr. David Price, a

solicitor practising in London, and Mr. Geoffrey Robertson, Q.C.,

counsel practising in London.

3. The application is directed against the United Kingdom. The

respondent Government are represented by Mr. Martin Eaton, Foreign and

Commonwealth Office, as Agent.

4. The case, as declared admissible, concerns the complaints of the

applicant that the prosecution brought against her for distributing

leaflets concerning candidates in a Parliamentary election constitutes

an unjustified restriction on her freedom of expression. The

application raises issues under Article 10 of the Convention.

B. The proceedings

5. The application was introduced on 11 March 1994 and registered

on 8 August 1994.

6. On 30 November 1994, the Commission decided to communicate the

application to the respondent Government for their written observations

on the admissibility and merits of the application.

7. The Government submitted their written observations on 17 March

1995. The applicant submitted her written observations in reply on 12

June 1995.

8. On 4 December 1995, the Commission declared the application

admissible insofar as it concerned the applicant's complaints of

restriction on her freedom of expression. The remainder of the

application was declared inadmissible. The Commission did not take into

account further observations submitted by the Government on 22 November

1995. Following the decision on admissibility, these observations were

admitted and sent to the applicant.

9. The parties were then invited to submit any additional

observations on the merits of the application.

10. The Government submitted observations on 17 January 1996 and 15

March 1996 and the applicant submitted additional observations on 30

January 1996.

11. After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, placed itself

at the disposal of the parties with a view to securing a friendly

settlement of the case. In the light of the parties' reactions, the

Commission now finds that there is no basis on which a friendly

settlement can be effected.

C. The present Report

12. The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes, the following members being present:

Mr. S. TRECHSEL, President

Mrs. G.H. THUNE

Mrs. J. LIDDY

MM. E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

F. MARTINEZ

C.L. ROZAKIS

L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

G.B. REFFI

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

E. BIELIUNAS

13. The text of the Report was adopted by the Commission on

12 September 1996 and is now transmitted to the Committee of Ministers

in accordance with Article 31 para. 2 of the Convention.

14. The purpose of the Report, pursuant to Article 31 para. 1 of the

Convention, is

1) to establish the facts, and

2) to state an opinion as to whether the facts found disclose

a breach by the State concerned of its obligations under

the Convention.

15. The Commission's decision on the admissibility of the application

is attached hereto as an Appendix.

16. The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

A. Particular circumstances of the case

17. The applicant is executive director of the Society for the

Protection of the Unborn Child (SPUC).

18. The applicant conscientiously believes that abortion and human

embryo experimentation are morally wrong and that the United Kingdom

statute which permits abortion up to 22 weeks and embryo

experimentation up to 14 days should be changed by Parliament.

19. The major political parties have no policies with regard to

abortion and embryo experimentation: these are regarded as moral issues

and Members of Parliament are allowed to vote according to their

conscience.

20. The applicant carries out the practice before national elections

to Parliament to arrange in those Parliamentary constituencies where

SPUC has local membership groups:

a. for all candidates to be questioned as to their opinion and

voting intentions in relation to changes in the law relating to

abortion and embryo experimentation and

b. for an accurate factual record of these opinions and voting

intentions to be prepared for each constituency and

c. for leaflets to be printed setting out this record and

distributed widely in the relevant constituency.

21. Before the elections held in 1992, the applicant arranged to have

distributed 25 000 leaflets in the constituency of Halifax, which

outlined the views of the three principal candidates on abortion and

setting out the voting record of one candidate on bills in Parliament.

The leaflet was entitled, "We are not telling you how to vote but it's

essential for you to check Candidates' voting intentions on abortion

and on the use of the human embryo as a guinea-pig." The leaflet

proceeded to indicate the voting record on these issues of the three

candidates from the major political parties and outlined their publicly

stated views on the issues. The applicant was charged under section 75

(1) and (5) of the Representation of the People Act 1983 which makes

it a criminal offence in the period before an election for unauthorised

persons to spend more than £5.00 in conveying information to electors

about candidates.

22. At the applicant's trial on 27 September 1993, the charge was

amended to one of corrupt practice under section 75 (1) and (5),

namely, of incurring expenses of issuing publications with a view to

promoting or procuring the election of a candidate for the Halifax

constituency at the Parliamentary election held on 9 April 1992.

23. The judge directed that the applicant be formally acquitted

upholding the submission of the applicant that the summons had not been

issued in accordance within the statutory one year time-limit (section

176 of the 1983 Act) from the relevant expense having been incurred.

24. The proceedings were reported in the press. Details were given

of the charges against the applicant and the prosecution counsel's

submission was reported to the effect that in the leaflet the Labour

candidate was portrayed in emotive language conjuring up sinister

shadows of Dr. Mengele and human experimentation.

25. The applicant had been prosecuted for similar offences in 1979

and 1982. In 1979, she was convicted in respect of a leaflet

distributed in Ilford North by-election and sentenced to a fine and

payment of prosecution costs. In 1982, the applicant was convicted in

respect of a leaflet distributed during the European elections and

sentenced to a fine and payment of prosecution costs.

B. Relevant domestic law and practice

26. Section 75 of the Representation of the People Act 1983 provides

as relevant:

"(1) No expenses shall, with a view to promoting or procuring the

election of a candidate at an election, be incurred by any person

other than the candidate, his election agent and person

authorised in writing by the election agent on account-

(a)...

(b) of issuing advertisements, circulars or publications;

or

(c) of otherwise presenting to the electors the candidate

or his views or the extent or nature of his backing or

disparaging another candidate,

but paragraph (c) of this subsection shall not-

(i) restrict the publication of any matter relating to an

election in a newspaper or other periodical or in a

broadcast made by the British Broadcasting Corporation or

the Independent Broadcasting Authority;

(ii) apply to any expenses not exceeding <£5.00 as

amended>...

(5)If a person-

(a) incurs, or aids, abets, counsels or procures any other

person to incur, any expenses in contravention of this

section...

he shall be guilty of a corrupt practice..."

27. The penalty for offences tried on indictment under section 75 is

a maximum sentence of imprisonment of 1 year and/or a fine up to a

maximum of £5000. In addition, a person convicted of a corrupt practice

(of which the first offence set out in section 75(5) is one) is a five

year disqualification from being registered as a voter, voting, being

elected to or sitting in the House of Commons or holding any judicial

or public office.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

28. The Commission has declared admissible the applicant's complaints

concerning the prosecution which was brought against her in respect of

her distribution of leaflets referring to candidates in a Parliamentary

election.

B. Point at issue

29. The issue to be determined is:

- whether there has been a violation of Article 10 (Art. 10) of

the Convention.

C. Article 10 (Art. 10) of the Convention

30. Article 10 (Art. 10) provides, as relevant:

"1. Everyone has the right to freedom of expression. This

right shall include freedom to hold opinions and to receive and

impart information and ideas without interference by public

authority and regardless of frontiers...

2. The exercise of these freedoms, since it carries with it

duties and responsibilities, may be subject to such formalities,

conditions, restrictions or penalties as are prescribed by law

and are necessary in a democratic society, in the interests of

national security, territorial integrity or public safety, for

the prevention of disorder or crime, for the protection of health

or morals, for the protection of the reputation or rights of

others, for preventing the disclosure of information received in

confidence, or for maintaining the authority and impartiality of

the judiciary."

1. Existence of a restriction on the applicant's freedom of

expression: Article 10 para. 1 (Art. 10-1)

31. The applicant submits that her freedom of expression has been

restricted by the operation of the 1983 Act. She has been convicted and

fined on earlier occasions and the prosecution in 1993 failed because

of a technicality. She has no doubt that if she distributes leaflets

at future elections she will face further prosecutions. This situation

discloses in her view clear restriction on her expression of opinion

and ideas contrary to Article 10 para. 1 (Art. 10-1) of the Convention.

32. The Government dispute the existence of any restriction on the

freedom of expression. They submit that section 75 of the 1983 Act does

not prohibit expression of views about candidates as such, only

unauthorised expenditure with a view to promoting or procuring the

election of a particular candidate. They emphasise that it has not been

established that the applicant's conduct is contrary to this

prohibition, in particular, since the prosecution against her in fact

failed.

33. The Commission notes the history of prosecutions and convictions

in respect of the applicant's activities in distributing leaflets

before elections. It recalls that the most recent prosecution did not

result in a conviction as a result of a procedural time-bar. It does

not find it useful to speculate as to whether or not the applicant

would in fact have been convicted if the matter had been left to the

jury. The Commission considers that the prosecution authorities regard

her conduct as falling within the statutory prohibition and that the

applicant must be regarded as being at a risk of prosecution and

conviction which is real and substantial. Consequently, it must be

concluded that the applicant is subject thereby to restriction on her

freedom of expression within the first paragraph of Article 10

(Art. 10) of the Convention.

2. Conformity with Article 10 para. 2 (Art. 10-2)

34. The Commission must therefore determine whether this restriction

conforms with the requirements of the second paragraph of Article 10,

(Art. 10) namely, whether it is prescribed by law and necessary in a

democratic society for one or more of the legitimate aims specified.

a. "Prescribed by law"

35. The applicant has not disputed that the prosecution brought

against her complied with this criterion.

36. The Commission finds no issue arising, either as to the existence

of a basis in domestic law or as to the quality of the applicable law,

which requires examination (see eg. Eur. Court HR, Margareta and Roger

Andersson v. Sweden judgment of 25 February 1992, Series A no. 226-A,

p. 25 para. 75).

b. legitimate aim or aims

37. The applicant disputes that the restriction is necessary for any

of the legitimate aims provided for in paragraph 2 of Article 10

(Art. 10-2) . She states that the law in question has been used to

silence not only abortion issues at election but also in respect of

groups protesting against nuclear weapons (Campaign for Nuclear

Disarmament), fox-hunting and environmental damage and also against

Charter 88 which campaigns for the incorporation of the European

Convention on Human Rights into domestic law.

38. The Government submits that the restriction, which seeks to

control expenditure by candidates, pursues the legitimate aim of

protecting the rights of others, namely, the rights of the candidates

whose chances of election may be affected and the rights of the

electors not to be subject to potential distortion in the choice of

candidates available to them.

39. The Commission accepts that the purpose of section 75 of the 1983

Act, pursuant to which the applicant was prosecuted, is to control the

expenditure of individual candidates standing for election and to

contribute to securing, as far as may be practicable, that they are on

a footing of equality as regards the financing of their personal

campaigns. The measure in this case may therefore be considered as

pursuing the legitimate aim of protecting the rights of others, namely,

the candidates and the electors in a particular constituency.

c. "Necessary in a democratic society..."

40. The applicant submits the restriction is not necessary in

pursuit of any alleged legitimate aim, and is not required by a

pressing social need and is disproportionate. The applicant contends

that the legislation does not deal with the real issues of corruption

which lie nowadays in the secret donations made by private persons and

bodies to political parties. She emphasises the nature of elections in

the United Kingdom where all elected members of Parliament are members

of established and well-funded parties who wage campaigns on a national

basis. What is in fact being prohibited by section 75 is the

participation on a local level of individual electors who wish to raise

single issues of importance to them. While other provisions in the 1983

Act are aimed at preventing corrupt election practices such as bribery

and vote-rigging, these cannot lend justification to the restriction

on freedom of expression imposed by section 75. Since she is not a

supporter or opponent of any particular candidate, prosecution cannot

serve the alleged purpose of stopping supporters of a candidate from

publicising his or her merits.

41. In any event however, the applicant would question that

expenditure of reasonable amounts of money by supporters or opponents

of candidates must necessarily be prohibited. She stresses the

importance of free political debate in a democratic society, and the

lack of any "pressing social need" to suppress the dissemination of

factually accurate information about the position of candidates for

public office on important moral issues. The function of section 75 in

the context of current electoral practice is to ensure that the agenda

for elections is set by the major political parties and reflected in

the news media, without the intrusion of single issues of a moral

dimension which no major party wishes to confront. The applicant points

to a number of issues which many individuals and groups consider are

of crucial importance to their voting choice eg. issues relating to the

arms trade, cruelty to animals in sport, Republicanism and the

monarchy, need for a Bill of Rights, need for greater protection of the

environment, Sunday trading and submits that section 75 frustrates any

effective attempt to direct public attention towards these issues

during an election. Because of the tendency of political parties to

make these issues subject of "conscience votes" by MPs the beliefs of

individual candidates about them is much more important that their

views about other matters which are or will become the subject of party

policy, which means that their vote will be "whipped" into the party

line.

42. Concerning the conformity of any restriction with the

requirements of Article 10 para. 2 (Art. 10-2) of the Convention, the

Government submit the system of control of election expenses is

necessary to ensure the right of each individual candidate to stand on

equal terms with his or her rivals in that constituency. Controlling

the individual candidate's expenses would be pointless if other persons

were allowed to incur expenses on their behalf: it would put at an

advantage those candidates who had wealthy supporters or the support

of particular pressure or campaign groups.

43. The Government also reiterates that the restriction imposed on

freedom of expression is limited only to the incurring of expenditure

"with a view to promoting or procuring the election of a candidate" :

it does not prohibit expression of opinion generally or the conveying

of information concerning topics of public interest and legislative

action or even factual, accurate information about candidates. The

applicant is free at any time during an election or otherwise to

express her opinions about abortion and other matters and to criticise

the views of politicians and others. Section 75 is, in their

submission, part of a statutory code designed to ensure that the result

of an election is not determined by the wealth of a candidate or his

or her supporters and as such, the means used to achieve this aim are

well within their margin of appreciation.

44. The Government submit that the legislation is not directed at

prohibiting "single issue" campaigning but applies generally to

expenditure "with a view to promoting or procuring the election of a

candidate". Further, if an individual were permitted to incur expense

in supporting or opposing a candidate on a particular issue, a

candidate who was affected would have to incur expense to answer the

points raised, which would either defeat the purpose of limiting

candidate's expenditure or adversely affect a candidate who would be

unable to respond.

45. The Commission recalls the key principles underlying the

application of the "necessity" test in the second paragraph of

Article 10 (Art. 10) of the Convention. Paramount is the consideration

that freedom of expression constitutes one of the essential foundations

of a democratic society: exceptions to it must be narrowly interpreted

and the necessity for any restrictions convincingly established. The

adjective "necessary" has also been held to imply the existence of a

"pressing social need". In assessing whether such need exists,

Contracting States have a certain margin of appreciation, but this is

subject to review by the Convention organs, which in exercising their

supervisory jurisdiction do not take the place of the national

authorities but look at the interference complained of in light of the

case as a whole and determine whether is proportionate to the

legitimate aim pursued and whether the reasons adduced by the national

authorities to justify it are "relevant and sufficient" (see, amongst

others, Eur. Court HR, The Sunday Times v. the United Kingdom (no. 2)

judgment of 26 November 1991, Series A no. 217, p. 29 para. 50).

46. As regards whether the restriction imposed on the applicant by

the operation of section 75 is proportionate with its aim, the

Commission notes that the provision covers the incurring of

unauthorised expenditure with a view to promoting or procuring the

election of a particular candidate. It is apparent that this is phrased

in broad terms which extend beyond prohibition of direct publicity for

or against a particular candidate. Assuming, as the Government argue

for the purposes of the current application, that the applicant's

leaflets are to be regarded as being distributed with a view to

promoting the election of the candidate with the stand on abortion most

acceptable to the applicant, the Commission is not satisfied that the

need to regulate candidates' finances extends to a prohibition of the

expression of opinion or information which may indirectly have the

effect of influencing voting opinion. The Commission notes that the

information concerning abortion views of candidates might in fact have

the tendency to influence certain voters in different directions,

depending on their own personal convictions. The Commission is not

persuaded therefore that the communication of information concerning

candidates' position on single issues, such as abortion, can be

considered as unbalancing the position of equality of candidates in a

particular constituency. While the Government has stated that publicity

on a particular topic may force a candidate to incur expense in

answering the point or countering any effect, the Commission finds no

indication in the circumstances of the present case that the

applicant's publication of her leaflet placed any candidate in an

unfair or unequal position. The Commission does not doubt that the

insistence on "conscience" issues by individuals with strongly-held

opinions may be a nuisance or annoyance to candidates, who fight

elections as part of a national party campaign. However, individual

freedom of expression, as a key ingredient of a democratic society,

must be considered inextricably linked with a free election system and

cannot be excluded without convincing justification.

47. The Commission has had regard to whether the expression of

opinion or information on "single issues" addressed by individuals or

groups with strongly held views may operate in particular

constituencies so as to "distort" election results. It has previously

considered in the context of Article 3 (P1-3) of the First Protocol,

which guarantees the "free expression of the opinion of the people in

the choice of the legislature", that one of the legitimate objectives

of national electoral systems is to channel currents of thought so as

to promote the emergence of a sufficiently clear and coherent political

will (see eg. No. 11406/85 dec. 10.3.88 DR 55 p. 130). The Government

have not however produced any argument to the effect that "single

issue" campaigning of the kind illustrated in the applicant's case

would distract voters from the political platforms which are the basis

of national party campaigns to such a degree as would hinder the

electoral process.

48. Having regard to the above and in light of the fact that the

restriction applied to the distribution by the applicant of factually

accurate information concerning candidates' views or voting record on

important legal and moral issues, such as abortion and foetal

experimentation, which are of public interest and not irrelevant to

pre-election debate, the Commission is of the opinion that the measure

was disproportionate to the legitimate aim pursued and cannot be

regarded as "necessary in a democratic society" for the protection of

the rights of others.

CONCLUSION

49. The Commission concludes, by 28 votes to 1, that there has been

a violation of Article 10 (Art. 10) of the Convention.

H.C. KRÜGER S. TRECHSEL

Secretary President

to the Commission of the Commission

(Or. français)

OPINION DISSIDENTE DE M. F. MARTINEZ

J'ai voté contre l'avis de la majorité car j'estime que, dans les

circonstances de l'espèce, il n'y a pas eu violation de l'article 10

de la Convention .

Il est vrai que la liberté d'expression constitue l'un des

fondements essentiels dans une société démocratique ; mais cette

liberté repose elle-même sur une société dotée d'une structure la plus

démocratique possible. Or, l'institution qui symbolise par excellence

la démocratie est le Parlement. Tous les candidats au Parlement doivent

être élus dans une dynamique qui assure l'égalité des chances entre eux

et je considère que les modalités de la confrontation électorale font

partie de a marge d'appréciation des Etats, compte tenu de leur

particulières spécificités. Je suis d'avis que, lorsque le système est

établi par des lois issues du Parlement - institution qui incarne

l'expression de la volonté du peuple - les organes de la Convention

doivent les respecter dans toute la mesure du possible et ne pas

substituer leurs propres idées à celles de la volonté démocratique

exprimée par la loi interne.

Cela dit, je vois que la Commission censure la loi britannique

tendant à favoriser l'égalité de chances pour les candidats aux

élections législatives moyennant l'interdiction faite aux tierces

personnes de dépenser de l'argent dans la promotion de l'élection d'un

candidat.

En ce qui me concerne, je trouve en cela un procédé légitime,

même si les dépenses servent à diffuser des idées qui sont en dehors

du contexte des élections.

En conséquence, il me semble que la loi en question est

pertinente dans une société démocratique non pas seulement pour la

protection des droits des autres candidats, mais aussi pour assurer que

la première institution de la société démocratique - le Parlement -

soit composée de la manière la plus démocratique, à savoir que les

candidats bénéficiant d'un appui financier ne puissent avantager Ã

ceux qui en sont démuni.

Or, le cas de la requérante est justifié par le second paragraphe

de l'article 10 de la Convention.

Menu

BOWMAN v. THE UNITED KINGDOM

BOWMAN v. THE UNITED KINGDOM

LEXI