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AS TO THE ADMISSIBILITY OF

Application No. 24839/94

by Phyllis BOWMAN and the Society for the

Protection of Unborn Children (SPUC)

against the United Kingdom

The European Commission of Human Rights sitting in private on

4 December 1995, the following members being present:

MM. S. TRECHSEL, President

H. DANELIUS

C.L. ROZAKIS

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 11 March 1994 by

Phyllis BOWMAN and the Society for the Protection of Unborn Children

(SPUC) against the United Kingdom and registered on 8 August 1994 under

file No. 24839/94;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

17 March 1995 and the observations in reply submitted by the

applicants on 12 June 1995;

Having deliberated;

Decides as follows:

THE FACTS

The first applicant is a British citizen born in 1926 and

resident in London. The second applicant is an incorporated society

founded in 1967 with its registered address in London. The applicants

are represented before the Commission by Mr. David Price, a solicitor

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

practising in London.

The facts as submitted by the parties may be summarised as

follows.

A. Particular circumstances of the case

The first applicant is executive director of the second

applicant.

The first 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. The

second applicant is an organisation of 50 000 members who share the

view that Parliament should reconsider and revise the laws on these

subjects.

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.

The first applicant carries out the practice before national

elections to Parliament to arrange in those Parliamentary

constituencies where the second applicant 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.

Before the elections held in 1992, the first 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 first 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. 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.

The judge directed that the first applicant be formally acquitted

upholding the submission of the first 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.

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.

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

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..."

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.

COMPLAINTS

The applicants complain under Article 10 of the Convention of the

prosecution brought against the first applicant. They complain of the

effect of section 75 of the 1983 Act which allows the media and the

political parties themselves to communicate information but prohibits

non-party individuals and pressure groups from communicating

information and opinion to fellow citizens. It 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.

It is submitted that it is not necessary for the law to

criminalise the imparting of factually accurate information or the

expression of opinion about candidates at election time. The ability

to participate in free political debate particularly at time of

election is, it is alleged, a key ingredient of the democratic process.

The restriction cannot be justified on any of the grounds set out in

Article 10 para. 2 and cannot be considered to have a legitimate aim.

There is in fact a "pressing social need" for important matters of

conscience to be part of the pre-election debate. Finally, in any

event, it is submitted that the penalties applicable are

disproportionate.

The applicants also invoke Article 13 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 11 March 1994 and registered

on 8 August 1994.

On 30 November 1994, the Commission decided to communicate the

application to the Government and to ask for written observations on

the admissibility and merits of the application.

The Government's observations were submitted on 17 March 1995

after one extension in the time-limit and the applicant's observations

in reply were submitted on 12 June 1995, also after one extension in

the time-limit.

THE LAW

1. The applicants complain of the prosecution brought against the

first applicant in respect of the distribution of leaflets produced by

the second applicant association concerning the abortion and bioethics

views of candidates for election to Parliament in the constituency of

Halifax. The applicants invoke Article 10 (Art. 10) of the Convention

which provides:

"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. This Article shall not

prevent States from requiring the licensing of broadcasting,

television or cinema enterprises.

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."

Concerning the first applicant

The Government submit that the first applicant cannot claim to

be a victim of any interference with her rights. Since the prosecution

was dismissed before the court reached any conclusion as to whether the

first applicant's activities constituted offences under the 1983 Act,

she cannot claim that her conduct is in fact prohibited by the criminal

law.

The applicant points out that she was prosecuted and stood trial

publicly in proceedings where serious allegations were made against

her, that she incurred costs in her defence and that while she was in

fact acquitted on a technicality, it cannot be realistically claimed

by the Government that her activities fall outside the scope of the

1983 Act.

The Commission recalls that in order to claim to be a victim of

an interference with a right an applicant must be "directly affected"

by the measure complained of (see eg. Eur. Court H.R. Open Door and

Dublin Well Woman judgment of 29 October 1992, Series A no. 246, p. 22,

para. 44). The Commission is satisfied that the first applicant was

"directly affected" by the prosecution instituted against her for her

activities in distributing leaflets. She may accordingly claim to be

a victim of an interference with her rights under Article 10

(Art. 10) of the Convention.

As regards the existence of any restriction with the first

applicant's freedom of expression, the Government 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. 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 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.

The first applicant does not challenge the lawfulness of the

restriction but disputes that it has a legitimate aim or that it is

required by a pressing social need or is proportionate.

The first 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 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 electors who

wish to raise issues of importance to them. 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 Commission considers, in the light of the parties'

submissions, that the complaints raised by the first applicant raise

serious issues of law and fact under the Convention, the determination

of which should depend on an examination of the merits of the

application as a whole. The Commission concludes, therefore, that the

application is not manifestly ill-founded within the meaning of Article

27 para. 2 (Art. 27-2) of the Convention. No other grounds for

declaring it inadmissible have been established.

Concerning the second applicant

The Government have submitted that the second applicant, an

association which promotes the views of its members as regards, inter

alia, abortion cannot claim to be a victim of any interference with its

rights.

The applicants' observations do not address the point as regards

the second applicant.

The Commission notes that the application is submitted almost

wholly from the point of view of the first applicant and that the

second applicant is barely mentioned in the complaints and submissions.

The Commission recalls that the second applicant has not been

subject to criminal prosecution, nor has it been subject to any measure

of seizure or confiscation. The Commission finds that it cannot claim

to be affected as a victim itself by the prosecution of the first

applicant and that in reality the complaints concern the first

applicant alone.

Accordingly, the Commission finds that, to the extent that the

complaints appear to be put forward on behalf of the second applicant,

they must be rejected as incompatible ratione personae with the

provisions of the Convention within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

2. The applicants also invoke Article 13 (Art. 13) of the

Convention, which provides that :

"Everyone whose rights and freedoms as set forth in this

Convention are violated shall have an effective remedy before a

national authority notwithstanding that the violation has been

committed by persons acting in an official capacity."

The Commission recalls however that Article 13 (Art. 13) does not

require a remedy under domestic law in respect of any alleged violation

of the Convention. It only applies if the individual can be said to

have an "arguable claim" of a violation of the Convention (Eur. Court

H.R., Boyle and Rice judgment of 27 April 1988, Series A no. 131, p.23,

para. 52). Further, the case-law of the Commission and Court indicates

that Article 13 (Art. 13) cannot be interpreted as guaranteeing a

remedy by which a Contracting State's laws as such can be challenged

before a national authority on the ground of being contrary to the

Convention (see eg. Eur. Court H.R., James and others judgment of

21 February 1986, Series A no. 98, p. 47, para. 84).

Given its findings above concerning the lack of victim status of

the second applicant in the context of Article 10 (Art. 10), the

Commission finds that it cannot be said to have an "arguable claim" of

a violation of its Convention rights as required by Article 13

(Art. 13) of the Convention. As regards the first applicant, the

Commission notes that her complaints are effectively that section 75

of the 1983 Act, a legislative provision, does not conform with the

requirements of Article 10 (Art. 10) of the Convention, which

allegation, applying the case-law above, cannot disclose a violation

of Article 13 (Art. 13) of the Convention.

It follows that this part of the application must be dismissed

as manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

For these reasons, the Commission, by a majority,

DECLARES ADMISSIBLE the application insofar as it concerns the

first applicant's complaints of restriction on her freedom of

expression, without prejudging the merits of the case;

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (S. TRECHSEL)

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BOWMAN AND THE SOCIETY FOR THE PROTECTION OF UNBORN CHILDREN (SPUC) v. THE UNITED KINGDOM

BOWMAN AND THE SOCIETY FOR THE PROTECTION OF UNBORN CHILDREN (SPUC) v. THE UNITED KINGDOM

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