Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 17634/91

by S. and G.

against the United Kingdom

The European Commission of Human Rights sitting in private on

2 September 1991, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

G. JÖRUNDSSON

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.C. GEUS

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

B. MARXER

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 10 October 1990

by S. and G. against the United Kingdom and registered on 9 January

1991 under file No. 17634/91;

Having regard to the report provided for in Rule 47 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The first applicant is a British citizen, born in 1945 and

resident in London. He is a private art gallery curator by

profession. The second applicant is a Canadian citizen, born in 1951

and resident in Vancouver. He is a fine artist/sculptor by profession.

They are represented before the Commission by Messrs. Stephens

Innocent, Solicitors, London.

The facts of the present case, as submitted by the applicants,

may be summarised as follows:

A. The particular circumstances of the case

The second applicant was to exhibit, as of 1 December 1987, in

the first applicant's gallery one of his sculptures, "Human Earrings",

as part of an exhibition entitled "Animals". This sculpture consisted

of a model's head which had attached to each of its ears an earring

made out of a freeze-dried human foetus, of three to four months'

gestation, by screwing a fitting into the foetus' skull and attaching

the upper end of the fitting to the lobe of the model's ear.

Without the consent of the first applicant or his gallery, the

second applicant had published a press release about the sculpture and

his other work, which attracted much media attention. On 1 December

1987, soon after the exhibition opened, the police attended the

gallery and seized the sculpture. Subsequently the applicants were

charged with and convicted, by jury trial, of the offence of outraging

public decency, an offence under English common law. Unlike offences

under the Obscene Publications Act 1959, the applicants had no

possibility of submitting that the sculpture had overriding artistic

merit as a defence to the charge. The first applicant was fined £350,

or 21 days' imprisonment, and the second applicant £500, or 28 days'

imprisonment. The Court of Appeal rejected the applicants' appeal on

10 July 1990.

From newspaper reports of the Court of Appeal's judgment it

appears that the applicants had claimed that there was no common law

offence of outraging public decency and that they should have only

been prosecuted, if at all, under section 2 of the Obscene

Publications Act 1959, qualified by the statutory defence of intrinsic

artistic merit (section 2(4) of that Act). The Lord Chief Justice

held that the offence of outraging public decency had been established

since 1973 in the case of R v. Knuller (Publishing, Printing and

Promotions) Ltd. ((1973) AC 435, 493). The Court considered that there

was a factual and moral difference between the offence under the 1959

Act, prohibiting things which by the recognised standards of propriety

tend to deprave and corrupt public morals, and the offence of

outraging public decency, aimed at material which tended to engender

revulsion, disgust and outrage, whether or not public morals were

involved. The Court also rejected the applicants' submission that for

such a common law charge to succeed the prosecution had to prove a

specific form of mens rea (intention or recklessness) regarding the

outrage to public decency. Their Lordships considered that this was

not a necessary element of the offence. It sufficed that there was an

intention to do an act which in fact outraged public decency. It may

even be the case that the outrage was unintentional, yet the public

had the right to be protected regardless of the defendant's state of

mind. The Court of Appeal refused the applicants leave to appeal to

the House of Lords.

B. The relevant domestic law and practice

According to the applicants, the generalised offence of

outraging public decency was first declared to exist by the House of

Lords in the case of R v. Knuller (Publishing, Printing and

Promotions) Ltd. ((1973) AC 435), following an obiter statement in the

case of Shaw v. the Director of Public Prosecutions ((1962) AC 220).

There had been a successful earlier prosecution in 1963

concerning homosexual acts in public places, when an individual had

been convicted of having committed an act of a lewd, obscene and

disgusting nature which outraged public decency (R v. Mayerling (1963)

2 Q.B. 717). In that case the Court of Criminal Appeal had held that

it was well established that there was a common law offence of

comitting an act outraging public decency. In the aforementioned Shaw

case in 1962, Lord Reid had stated as follows:

"I shall not examine the authorities because I think

they establish that it is an indictable offence to say

or do or exhibit anything in public which outrages

public decency, whether or not it also tends to corrupt

or deprave those who see or hear it."

The Solicitor General stated in 1964 that this common law

offence would not be used to circumvent section 2 of the Obscene

Publications Act 1959, subparagraph 4 of which provides, on

prosecution for publishing obscene material, a defence of intrinsic

artistic merit.

The common law offence was further clarified and applied to

certain dating advertisements in a magazine for homosexuals in the

Knuller case when the House of Lords confirmed the aforementioned view

of Lord Reid. In the Knuller judgment Lord Simon stressed certain

features of the offence which should be brought to a jury's attention

by the trial judge:

"It should be emphasised that 'outrage', like 'corrupt', is

a very strong word. 'Outraging public decency' goes

considerably beyond offending the susceptibilities of,

or even shocking, reasonable people. Moreover the offence

is ... concerned with recognised minimum standards of

decency, which are likely to vary from time to time.

Finally, notwithstanding that 'public' in the offence is

used in a locative sense, public decency must be viewed

as a whole; and ... the jury should be invited, where

appropriate, to remember that they live in a plural

society, with a tradition of tolerance towards minorities,

and that this atmosphere of toleration is itself part of

public decency."

COMPLAINTS

The applicants complain that there has been an unjustified

interference with their freedom of expression contrary to Article 10

of the Convention. They contend that freedom of artistic expression,

including the creation and promotion of works of art, is protected by

this Convention provision (Eur. Court H.R., Müller and Others judgment

of 24 May 1988, Series A no. 133, p. 19, para. 27). They also submit

that the interference in question was neither prescribed by law nor

necessary in a democratic society for the protection of morals. The

interference was disproportionate to any aims, given the absence of

any balancing of the conflicting interests, as they had no opportunity

to explain the reasons for, and the merits of, their actions by way of

a defence to the criminal charge.

THE LAW

The applicants complain that their conviction and sentence for

outraging public decency constituted an unjustified interference with

their freedom of expression ensured by Article 10 (Art. 10) of the

Convention, the relevant part of which reads as follows:

"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 ... restrictions or penalties as are prescribed

by law and are necessary in a democratic society ...

for the prevention of disorder or crime, for the

protection of health or morals ..."

Freedom of artistic expression falls within the ambit of the

rights protected by Article 10 para. 1 (Art. 10-1) of the Convention. This

freedom consists not only in freedom to create works of art, but also

in freedom to disseminate them through exhibitions (Eur. Court H.R.,

Müller and Others judgment of 24 May 1988, Series A no. 133, p. 19,

para. 27, and Comm. Report p. 43, para. 95). The Commission finds

that the applicants suffered an interference with the exercise of

their freedom of expression by virtue of their conviction and sentence

for outraging public decency, following their public exhibition of the

second applicant's sculpture "Human Earrings". These criminal

proceedings clearly resulted in "penalties" being imposed upon the

applicants, within the meaning of Article 10 para. 2 (Art. 10-2) of the

Convention. The Commission must, therefore, proceed to examine

whether the interference in question was prescribed by law, pursued

one or more of the legitimate aims under Article 10 para. 2

(Art. 10-2) and was necessary in a democratic society for achieving

that aim or aims.

The applicants first contend that the prosecution for

outraging public decency was not prescribed by law, being an offence

of inadequate accessibility and forseeability, as these terms were

defined in The Sunday Times case (Eur. Court H.R., The Sunday Times

judgment of 26 April 1979, Series A no. 30, pp. 30-31, paras. 47-49).

They submit, inter alia, that the prosecution should have been

founded, if at all, upon the statutory offence of obscenity contained

in section 2 of the Obscene Publications Act 1959, which in its fourth

subparagraph envisages a defence of intrinsic artistic merit. This

enables the trial court to balance the conflicting interests.

As the Court observed in the aforementioned Sunday Times case,

the word "law" in the expression "prescribed by law" covers not only

statute but also unwritten law. No importance can therefore be

attached to the fact that the offence for which the applicants were

prosecuted was a creature of the common law and not of legislation.

Whatever the source of the law, it must be sufficiently clear:

"In the Court's opinion, the following are two of the

requirements that flow from the expression 'prescribed

by law'. Firstly, the law must be adequately accessible:

the citizen must be able to have an indication that is

adequate in the circumstances of the legal rules

applicable to a given case. Secondly, a norm cannot be

regarded as a 'law' unless it is formulated with sufficient

precision to enable the citizen to regulate his conduct:

he must be able - if need be with appropriate advice - to

foresee, to a degree that is reasonable in the circumstances,

the consequences which a given action may entail. Those

consequences need not be foreseeable with absolute certainty:

experience shows this to be unattainable. Again, whilst

certainty is highly desirable, it may bring in its train

excessive rigidity and the law must be able to keep pace

with changing circumstances. Accordingly, many laws are

inevitably couched in terms which, to a greater or lesser

extent, are vague and whose interpretation and application

are questions of practice." (Ibid. p. 31, para. 49)

As regards the facts of the present case, the Commission notes

that the common law offence of outraging public decency has been

clear, or "accessible", since the Knuller case in 1973, if not since

the Mayerling case in 1963 (see Relevant domestic law and practice

above). Having regard to the judgment of Lord Simon in the Knuller

case, it seems that it would have been open to the applicants to

submit to the trial court that the sculpture in question was not an

outrage to public decency, given that the atmosphere of tolerance is

in itself part of public decency in a plural society. It appears,

therefore, that freedom of expression is not wholly irrelevant in a

prosecution for this offence. The domestic courts in the applicants'

case explained the difference between the common law offence of

outraging public decency and the statutory offence of obscenity as

being a qualitative one of fact and morals, the former being concerned

with more offensive material which engenders such revulsion, disgust

and outrage that it is irrelevant whether its consequence is actually

to undermine public morals. This distinction, in the Commission's

view, meets the applicants' objection that they could not have

foreseen a prosecution for that offence, rather than a prosecution, if

at all, under section 2 of the Obscene Publications Act 1959. The

Commission finds, therefore, that the applicants did have an

indication, sufficient in the circumstances, of the existence of the

offence of outraging public decency. The interference with the

applicants' freedom of expression was thus "prescribed by law" within

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

The applicants concede that the interference with their

freedom of expression may fall within the legitimate aim of protecting

morals, as envisaged by Article 10 para. 2 (Art. 10-2) of the

Convention. The Commission finds that the facts of the present case

confirm that the applicants were prosecuted for the purpose of

protecting morals.

The applicants' contend, however, that the restriction on

their freedom of expression was disproportionate, given the

limitations on their defence to the charge of outraging public

decency. They submit, inter alia, that their conviction will have a

chilling effect on the artistic community as a whole, with art

galleries being extremely cautious in the future to exhibit

controversial work for fear of such prosecutions. The balanced

protection of the Obscene Publications Act 1959 can now be

circumvented by framing a prosecution on the basis that the article is

offensive and disgusting rather than obscene, a distinction which, in

their view, is impossible in reality to make.

The Commission notes the wide margin of appreciation afforded

to States in the protection of morals, given the absence of any

uniform European conception. Artists are not immune from restrictions

on their work for this purpose, having particular regard to the

express reference to their duties and responsibilities in Article 10

para. 2 (Art. 10-2) of the Convention. By reason of their direct and

continuous contact with the vital forces of their countries, States

are in principle in a better position than the Convention organs to

assess the necessity of a restriction on artistic freedom of

expression for the protection of morals (Eur. Court H.R., Müller and

Others judgment of 24 May 1988, Series A no. 133, p. 22, paras.

33-35).

As regards the facts of the present case, the Commission notes

that the second applicant's sculpture used two freeze-dried foetuses

of three to four months' gestation as earrings. The sculpture was

displayed in an exhibition which was open to, and sought to attract

the public. In the circumstances, the Commission does not find

unreasonable the view taken by the English courts that this work was

an outrage to public decency. Having regard to the margin of

appreciation left to them under Article 10 para. 2 (Art. 10-2) of the

Convention, the domestic courts were entitled to consider it

"necessary" for the protection of morals to impose a fine on the

applicants for exhibiting the piece. It follows that the application

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

(Art. 27-2) of the Convention.

For these reasons, the Commission unanimously

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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S. AND G. v. THE UNITED KINGDOM

S. AND G. v. THE UNITED KINGDOM

LEXI