SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 44223/98 by Gordon BROWN against the United Kingdom

The European Court of Human Rights (Second Section) , sitting on 2 July 2002 as a Chamber composed of

Mr J.-P. Costa , President , Mr A.B. Baka ,

Sir Nicolas Bratza , Mr Gaukur Jörundsson , Mr K. Jungwiert , Mr V. Butkevych , Mrs W. Thomassen , judges , and Mr T.L. Early , Deputy Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 11 September 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant is a British national, born in 1942 and living in Ottley . He is represented before the Court by Mr D. Price, a solicitor practising in London. The respondent Government are represented by their agent, Mr D. Walton of the Foreign and Commonwealth Office.

A. The circumstances of the case

The facts of the case, as submitted by the parties , may be summarised as follows.

At the time in question the applicant was a shareholder and sole director of a company, Sunday Business Newspapers Limited (“SBN”) which owned a Sunday newspaper. On 13 October 1996 the newspaper published an article written by the editor in which the complainant in a rape case was named, contrary to section 4(1) of the Sexual Offences (Amendment) Act 1976 (“the Act”). The applicant was charged with an offence under section 4(5) of the Act (see below).

The applicant was tried, without a jury, by the Marylebone Magistrates’ Court on 13 October 1997. He pleaded “not guilty” and gave oral evidence. He contended that merely as director and financier of the company which owned the newspaper, with no editorial role and no pre-publication knowledge of the content of the paper, he could not be described as a “publisher” within the meaning of section 4(5). Under section 5(5) of the Act, the applicant further asserted that he was not aware, and neither suspected nor had any reason to suspect, that the publication would identify the complainant.

The Magistrates’ Court found that, as effectively the only person in control of SBN, which was a company without any Articles of Association, the applicant was a “publisher” for section 4(5) purposes and that all of the requirements of section 4(1) had been fulfilled. The magistrates accepted that the applicant did not read the offending newspaper article prior to its publication and that he did not know or suspect that it was to be published. They also accepted that the applicant’s role at the newspaper was primarily that of a financial backer and fund-raiser. However, they rejected his defence under section 5(5) of the Act since they were not satisfied that he had no reason to suspect that the article would be published. They reached this conclusion having found that the applicant had visited the newspaper’s offices in London each week between Thursday afternoon and Friday lunchtime. They commented that the editorial content of the articles to be published the following Sunday would have been available to the applicant at those weekly meetings on demand. They also found that the contents of the newspaper were vetted by a firm of solicitors every week on the Friday before publication.

The applicant was fined GBP 2,000 and ordered to pay GBP 300 costs. At the same trial, the editor of the newspaper was convicted and fined following a “guilty” plea and SBN itself, which was by that time in liquidation, was convicted and fined in its absence following a “not guilty” plea.

The applicant’s appeal against conviction and sentence was dismissed by the Divisional Court on 12 March 1998. In delivering the judgment of the court, Mr Justice Astill cited the following passage from The Law of Contempt by Borrie and Lowe (Third Edition, page 386):

“It seems right to impose liability upon newspaper proprietors since they provide the means whereby publication is effected. The law of contempt as a deterrent instrument would be weakened if the proprietors did not have a strong incentive not only to choose a responsible editor but to take appropriate action if the editor or another member of staff began to make or allow comment which might subject the proprietors to liability. Subject to the reservation as to the proper legal basis of proprietors’ liability, which it is submitted should be a primary responsibility, the current law seems satisfactory.”

He continued:

“Whilst it is, of course, true that those passages referred to “proprietor”, it seems to me to indicate the wide range of the legislation and would not exclude necessarily the role of a Managing Director as “publisher”. ...

It seems to me that s 4(5) is deliberately widely drawn. Its aim seems to be to prevent, as far as it is possible, the damaging effect of contempt or, in this case, the damage caused by a breach of the Sexual Offences (Amendment) Act 1976. Its object is, in my judgment, to prevent those holding various responsibilities from sheltering behind lack of knowledge or lack of direct action in the publication of offending material.

[Counsel for the applicant] submits that the Justices should have upheld the submission of no case because the only evidence before them at the end of the prosecution case was that [the applicant] was the Managing Director. My view of that is that his position as the Managing Director gave rise to a prima facie case that he was responsible for publications by a publishing company which he managed.

[Counsel for the applicant] further submits that if [the applicant] is caught by s 4(5) then s 5(4) is otiose. Having considered that submission, I do not agree. Section 4(5) captures both “publishers” and “proprietors”. Section 5(4) can capture, for example, a secretary who may not be either a publisher or proprietor. It is clear from the legislation that the offence under s 4(5) may be committed by the same person either under the provisions of that section or under the provisions of s 5(4). ...”

B. Relevant domestic law

1. The Sexual Offences (Amendment) Act 1976

The relevant part of section 4(1) of the Act provides:

“(...)(b) After a person is accused of a rape offence, no matter likely to lead members of the public to identify a woman or man as the complainant in relation to that accusation shall during that person’s lifetime -

( i ) be published in England and Wales in a written publication available              to the public ...”

Section 4(2) of the Act provides that a person accused of rape can apply to the trial judge for the restriction in section 4(1) to be lifted.

Section 4(3) of the Act provides that if the trial judge is satisfied that the effect of section 4(1) is to impose a substantial and unreasonable restriction upon the reporting of the trial proceedings and that it is in the public interest to remove or relax the restriction, he must direct that section 4(1) does not apply.

The relevant part of section 4(5) of the Act provides:

“If any matter is published ... in contravention of subsection (1) of this section, ... in the case of a publication in a newspaper ..., any proprietor, any editor and any publisher of the newspaper ... shall be guilty of an offence and liable on summary conviction to a fine not exceeding [GBP 5000]”.

Section 5(4) of the Act provides, in part:

“When an offence under subsection (5) of the preceding section which has been committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate..., he as well as the body corporate shall be guilty of that offence...”

The relevant part of section 5(5) of the Act provides:

“...where a person is charged with [an offence under section 4(5)] it shall be a defence to prove that at the time of the alleged offence he was not aware, and neither suspected nor had reason to suspect, that the publication ... was of, or (as the case may be) included, such matter as is mentioned in subsection (1) of that section.”

The defendant has to prove the defence under section 5(5) on the “balance of probabilities”.

2. Appeal to the House of Lords

There is a right of appeal to the House of Lords against a decision of the Divisional Court in its capacity as an appellate court. In order for such an appeal to lie to the House of Lords, the Divisional Court must certify that the appeal involves a point of law of general public importance. Following certification, permission for such an appeal may be granted by the Divisional Court itself or the House of Lords.

COMPLAINTS

The applicant complains under Article 10 of the Convention that his conviction constituted a disproportionate interference with his right to freedom of expression.

He complains also under Article 6 § 2 of the Convention in respect of the burden of proof placed upon him to establish his defence under section 5(5) of the Act. He contrasts this with the burden placed upon the prosecution by section 5(4).

THE LAW

1. Non-exhaustion of domestic remedies

The Government submit that the application should be declared inadmissible for failure to exhaust domestic remedies as required by Article 35 § 1 of the Convention, which provides, as relevant:

“The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, ...”.

The Government point out that the applicant did not seek permission to appeal to the House of Lords against the Divisional Court’s decision of 12 March 1998 dismissing his appeal from the Magistrates’ Court. The applicant contends that an appeal to the House of Lords would not have provided him with an effective remedy.

The Court considers that it may be open to doubt whether the applicant has exhausted domestic remedies for the purposes of Article 35 § 1 of the Convention. However, it is not necessary to determine this question as the Court finds the application to be anyway manifestly ill-founded for the reasons which follow.

2. Article 10 of the Convention

The applicant complains under Article 10 that his conviction constituted a disproportionate interference with his right to freedom of expression.

Article 10 provides, as relevant:

“1. Everyone has the right to freedom of expression. (...)

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, ... 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.”

The Government accept that sections 4 and 5 of the Sexual Offences (Amendment) Act 1976 restrict freedom of expression. However, they argue that such restriction is prescribed by law and pursues a number of legitimate aims in a proportionate manner. In particular, they point out that those provisions are designed to encourage rape victims to report incidents to the police without undue embarrassment or distress and to give evidence at trial so as to facilitate the prosecution of offenders. They highlight the defence provided by section 5(5) of the Act but contend that, where the defence does not apply, it is legitimate to subject newspaper publishers and proprietors to criminal responsibility for the contents of their publications. They argue that the Act strikes an appropriate balance between freedom of expression in reporting rape cases and the need to protect alleged rape victims. They draw attention to the fact that the applicant was found to be sole controller of SBN and that he had access to the newspaper’s contents on demand. They submit that, in all the circumstances, the domestic courts were entitled to conclude that the applicant was a “publisher” for the purposes of section 4(5) of the Act.

The applicant submits that his conviction constitutes a disproportionate interference with the right to freedom of expression under Article 10 of the Convention. He points out that imposing criminal liability upon non-editorial newspaper managers can lead to undue interference by them with the content of material to be published and can create a disincentive to invest in newspapers. He maintains that, in order to strike a proper balance between freedom of expression and the legitimate aim pursued by the Act, some fault should be required to be proved on the part of such managers, which should entail more than failure to read a newspaper in advance of publication. On the facts of his case, the applicant suggests that the prosecution could not have proven any such fault. He highlights that there is no suggestion that the newspaper editor had ever behaved irresponsibly so as to require intervention by the applicant, and that it was not disputed that there had been an appropriate system in place to minimise the risk of offending articles being published. He maintains that if mere access to editorial contents is sufficient to prevent application of the section 5(5) defence, then that defence becomes useless.

The Court notes that the parties agree that the relevant provisions of the Act, and the applicant’s conviction under those provisions, restrict freedom of expression for the purposes of Article 10 of the Convention, and that the restriction pursued a legitimate aim. It notes also that the restriction was prescribed by law. The key issue in this case is therefore the proportionality of the impugned measures.

The Court recognises that the relevant provisions of the Act are designed to protect alleged rape victims from being openly identified. This in turn encourages victims to report incidents of rape to the authorities, and to give evidence at trial without fear of undue publicity. The Court recalls that the Commission has previously had regard to the special features of criminal proceedings concerning rape and to the fact that such proceedings are often conceived of as an ordeal by the victim (see S. N. v. Sweden , no. 34209/96, § 47, ECHR 2002-...). The Court considers that it must pay special regard to these factors when examining the proportionality of the restrictions at issue in the present case.

The Court notes that the relevant provisions of the Act did not require the prosecution to prove that the applicant was at fault in any way in connection with the publication of the offending article. However, the prohibition under the Act against the identification of alleged rape victims is not absolute. In particular, section 4(3) requires trial judges to lift the prohibition in certain cases where the public interest so requires. Further, section 5(5) allows those charged, like the applicant, with the section 4(5) offence to escape criminal liability by proving, on the balance of probabilities, that they were not aware, and neither suspected nor had reason to suspect, that the publication concerned would identify a rape victim. The Court also observes that the maximum penalty for the section 4(5) offence is a fine of GBP 5,000 and that the applicant was fined only GBP 2,000 following his conviction.

The Court notes that the Magistrates’ Court found that the applicant’s role at the newspaper was primarily that of a financial backer and fund-raiser, editorial matters being left to the editor and legal matters being entrusted to the solicitors who vetted the contents of each issue prior to its publication.

However, the Court takes note of the Magistrates’ Court’s findings that the applicant was the only person in control of SBN, which was a company without any Articles of Association, and that he visited the newspaper’s offices each week prior to publication. During such visits, the magistrates considered that the editorial content of the articles to be published the following Sunday would have been available to the applicant on demand.

The Court considers that it may be legitimate to hold newspaper proprietors in part responsible for the contents of their newspapers when those contents impinge upon the rights of others (cf. Sürek v. Turkey (No. 1) [GC], no. 26682/95, § 63, Reports of Judgments and Decisions 1999-IV) . In the circumstances of the present case,  the Court does not consider that the applicant’s conviction and fine constituted a disproportionate interference with the right to freedom of expression under Article 10 of the Convention.

It follows that this part of the application is inadmissible as being manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4 of the Convention.

3. Article 6 § 2 of the Convention

The applicant complains under Article 6 § 2 of the Convention in respect of the burden of proof placed upon him to establish his defence under section 5(5) of the Act.

Article 6 § 2 provides as follows:

“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

The Government submit that, since Article 6 § 2 does not prohibit strict liability criminal offences, it cannot a fortiori prohibit a reversal of the burden of proof so as to allow defendants to avoid criminal liability by showing that they took due care.

The applicant maintains that the effect of section 4(5) of the Act, taken together with section 5(5), is to allow a conviction without proof of any fault and, in effect, to require a defendant to prove his own innocence.

The Court recalls that Contracting States may, in principle and under certain conditions, penalise a simple or objective fact as such, irrespective of whether it results from criminal intent or from negligence (see the Salabiaku v. France judgment of 7 October 1988, Series A no. 141-A, § 27).

The Court notes that, in order that an individual such as the applicant can be convicted of an offence under section 4(5) of the Act, the prosecution must prove that each of the requisite elements of that section, and of section 4(1) of the Act, are satisfied. It also notes the effect of section 5(5) of the Act, which allows defendants to escape criminal liability where they can prove on the balance of probabilities that they are in no way at fault in connection with the offending article. It observes the differences between the fields of application of sections 4(5) and 5(4) of the Act, as referred to by the Divisional Court.

In all the circumstances, and in the light of its conclusions in relation to the applicant’s Article 10 complaint, the Court does not consider that the relevant provisions of the Act as applied in the applicant’s case violate Article 6 § 2 of the Convention.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

T.L. Early J.-P. Costa Deputy Registrar President