THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 42015/98 by Michael MARLOW against the United Kingdom

The European Court of Human Rights (Third Section), sitting on 5 December 2000 as a Chamber composed of

Mr J.-P. Costa , President , Mr W. Fuhrmann , Mr L. Loucaides , Sir Nicolas Bratza , Mrs H.S. Greve , Mr K. Traja , Mr M. Ugrekhelidze , judges , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 13 January 1998 and registered on 2 July 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 deliberated, decides as follows:

THE FACTS

The applicant is a British national, born in 1944 and living in Gloucester, England.

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

A. Particular circumstances of the case

The applicant, using a pseudonym, published a book about the cultivation and production of cannabis. The book was advertised for sale in three magazines. Some five hundred copies were sold. The police obtained the names of various customers, established the identity of the applicant and arrested him.

When questioned by the police the applicant denied that the book was intended to incite buyers to cultivate cannabis. When pressed about the question of encouragement and incitement, the applicant, on the advice of his solicitor, declined to answer questions saying that the questions were “too conjectural”.

The applicant was subsequently charged with three offences under the Misuse of Drugs Act 1971 (“the 1971 Act”). He stood trial before a jury at Worcester Crown Court in February 1996. The applicant pleaded guilty to the charges of producing and having in his possession cannabis and not guilty to the charge of incitement to commit an offence under the 1971 Act.

The prosecution case was that the applicant’s book amounted to an incitement of those who bought it to cultivate cannabis and was in effect a grower’s guide. The prosecution relied on the fact that when the police raided the homes of a number of buyers, cannabis plants were found being cultivated according to methods similar to those described in the book. According to the prosecution, the applicant’s intention in writing and publishing the book could be inferred from the book itself and from the effect which it had on the purchasers of the book. The prosecution called as witnesses several such purchasers who were found to be using the method advocated in the book (“the Tricameral method”) to grow cannabis.

The applicant’s counsel contended in his defence that his book was a genuine contribution to the debate about the legalisation of cannabis, that it only contained general advice and information freely available elsewhere, that it made it clear that growing cannabis was an offence and that its contents were too remote from the likely actions of those who read it. The applicant relied, inter alia , on the testimony of an expert witness to the effect that many books had been published about the cultivation of cannabis. The expert sought to establish with reference to the contents of those books that the applicant did not intend to incite others to break the law.

According to the applicant, his counsel informed the trial judge that he would not be giving evidence on medical grounds and submitted a medical report indicating that the applicant’s performance in the witness box might be prejudiced on account of the stressful circumstances of his court appearance.

As to the ingredients of the offence of incitement, the judge in his summing up directed the jury that they had to decide whether they were sure that the book:

“may encourage or persuade, or if you like to put it another way, is capable of encouraging and persuading other people to produce the drug cannabis and thus to break the law. The prosecution do not have to prove that it may encourage and persuade, or is capable of doing that, in relation to people who have never grown cannabis before or who had stopped growing cannabis. As I have said, if it may encourage and persuade people to start up again or to carry on and produce more cannabis that would be quite sufficient for proof of the offence. ... If ... you say that it is an encouragement and persuasion, then you must be sure of something else before you can convict the [applicant], and that is that he knew at the time he was disseminating the book that what he was inciting other people to do would be a crime on their part if they did it but that he nevertheless intended to go ahead and do it anyway. It does not have to be proved of course that that was his only intention in publishing the book. It would be quite enough to show that it was one of his intentions. ...”

As to the applicant’s silence during police interview and at his trial, the judge directed the jury in the following terms:

“... You have had a summary of the [applicant’s] police interviews from which you know that, although he answered many of the police questions, he declined to answer others. The answers which he gave you will of course give such weight to as you think right. ... Some of the questions in the interview, as I have said, he did not want to answer. He did not want to answer questions on the central question of incitement when the police officers were putting them to him. He was quite entitled not answer questions if he did not want to. He could of course have done so but he had an absolute right not to do so. Where he was silent or said, ‘I don’t have any comment’ or, ‘I don’t want to answer that question’ you must not use that as any evidence that he is guilty or take the view that it makes the prosecution case any stronger than it otherwise would do.

Then there is the question of him not giving evidence in the witness box in court to you. That stands on a slightly different footing. He has an absolute right not to do that but, as he has been told by me through his barrister, the law is that you are allowed to draw any inference, deduction that is, which you think right from the fact that he had declined to go into the witness box and give evidence on oath. The prosecution cannot prove their case simply by the fact of his silence. What you should do is ask yourselves whether, on the evidence that you have heard, there is a case against him which calls for an answer from him. If not, if there is not, then his silence would have no significance. But if there is a case against him then you would be entitled to come to the conclusion that the only sensible explanation for his decision not to give evidence is that he has no answer to the case against him or no answer which would stand up to being cross-examined by counsel for the prosecution. You are entitled to use that inference, together with all the other evidence in the case, in concluding that he must be guilty of the charge if that is the inference you choose to draw. But it is entirely up to you to say whether you think it is right to do so or not.

Of course you will also ask yourselves first of all whether there may be any other harmless reason, if I can use that phrase, for his silence. You may think that no such reason is readily obvious and that he is the person in the best position to tell you what his intention was, for example, in producing this book if he thought that it would advance his case to tell you. As I say, it is up to you what inferences you draw, if any.”

Later on in his summing up the judge stated:

“What he has never told you of course or told the police is what other books he knows about or has read, nor has he told you how any such books may have affected his own intentions in writing his own. As I say, he could have done because the question of intention has been very much in issue, but he has not. His counsel has made certain suggestions about that but you may think the person best able to explain all that would have been the defendant himself. ...

The police then pressed him on the question of encouragement and incitement and it was at that point that he asked his solicitor how he should answer ... .”

On 18 March 1996 the jury by an eleven to one majority found the applicant guilty of the offence of incitement. The applicant received a twelve month prison sentence concurrent on the three offences with which he was charged.

The applicant applied for leave to appeal. In his amended grounds of appeal the applicant maintained that the trial judge failed to give the jury a proper direction on the inferences which could be drawn from his silence at the police interview and at his trial. In particular, he alleged that the trial judge failed to inform the jury that there was medical evidence which could explain his silence at the trial. The applicant further stated that the trial judge misdirected the jury on the notion of incitement. The full Court of Appeal gave the applicant leave to appeal on the last ground only.

On 14 July 1997 the Court of Appeal dismissed the applicant’s appeal. Delivering judgment , Lord Justice Potter, with reference to precedent, considered that the trial judge in his direction should have invited the jury to ask itself whether the book encouraged or persuaded rather than whether it may encourage or persuade or was capable of encouraging or persuading readers to produce cannabis and thus to break the law. However, having regard to the trial judge’s direction as a whole with respect to the defence relied on by the applicant, Lord Justice Potter considered that the jury was properly apprised of the requisite ingredients of the offence. He also rejected the applicant’s contention that sections 18 and 19 of the Misuse of Drugs Act 1971, which set out the offence of incitement, did not refer to the production of cannabis. According to Lord Justice Potter, this was an obvious drafting error and sections 18 and 19 were to be construed in relation to section 4 of the same Act which criminalised the production of cannabis.

The Court of Appeal substituted a sentence of six months’ imprisonment in respect of the applicant’s convictions for possession and production of cannabis but upheld the twelve month prison sentence he received in respect of the offence of incitement.

B. Relevant domestic law and practice

The relevant domestic law and practice relating to the drawing of adverse inferences from an accused’s silence during police interview or at his trial is described in detail in the Condron v. the United Kingdom judgment of 2 May 2000 (application no. 35718/97).

COMPLAINTS

1. The applicant complains that his right to freedom of expression guaranteed by Article 10 of the Convention has been breached on account of his prosecution and conviction. He maintains that there was no evidence of actual incitement before the jury on which to ground a conviction. However, he was convicted because the trial judge misdirected the jury on the notion of incitement. Moreover, the applicant complains that he was singled out for prosecution given the tolerance shown to the availability of the other books dealing with cannabis referred to by his expert witness at his trial. The applicant also alleges that the manuscript of a future book was confiscated during the police search of his house and that the authorities have refused to return it.

2. The applicant further complains that he did not receive a fair trial. With reference to Article 6 § 2 of the Convention, the applicant states that the trial judge in his direction to the jury inferred that he had not co-operated with the police when interviewed and allowed the jury to draw an adverse inference. Moreover, the trial judge allowed the jury to draw adverse inferences from his failure to testify at the trial although there was medical evidence indicating that it was undesirable for him to do so.

3. With reference to Article 6 § 3(d) of the Convention, the applicant alleges that incorrect and prejudicial conclusions were drawn from the evidence of persons who bought his book and that the judge did not allow the jury to see the contents of publications on which his expert witness relied.

4. The applicant finally states that the judgments of the trial court and the Court of Appeal contain defamatory observations about his potential to supply drugs, including to his family circle. He invokes Article 8 of the Convention.

THE LAW

1. The applicant complains of an interference with his right under Article 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. ...

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 ... the prevention of ... crime, ... .”

The applicant contends that the trial judge erred in his direction to the jury on the notion of incitement. He submits that the proper direction would have been that the jury must be sure that the alleged influence of the book, having regard to the content and style of other books dedicated to the cannabis issue, amounted to an incitement. The applicant asserts that offering advice and information to the public, in the context of a book advocating change in the law and which makes it clear that growing cannabis is an offence, falls short of incitement. In the event, he received a twelve months’ prison sentence even though he had not intended to incite persons to break the law, had never profited from the publication and had never supplied cannabis.

The Court does not dispute the applicant’s contention that his prosecution, conviction and sentence interfered with his right to freedom of expression. The measures of which he complains flowed directly from his act of writing and publishing the book at issue.

In accordance with its settled case-law the impugned interference constitutes a breach of Article 10 unless it was “prescribed by law”, pursued one or more legitimate aim or aims as defined in paragraph 2 and was “necessary in a democratic society” to attain them (see, among many other authorities, the Handyside v. the United Kingdom judgment of 7 December 1976, Series A no. 24, p. 21, §§ 43-44).

The Court observes that the applicant contended before the Court of Appeal that section 19 of the Misuse of Drugs Act 1971 (“the 1971 Act”) did not make it an offence to incite others to produce cannabis since section 19 referred only to offences under section 18, which provision does not mention production. The Court of Appeal noted that this omission was an obvious drafting anomaly. For its part, the Court considers that, as a matter of statutory construction, it is plainly the case that the concept of incitement in respect of offences other than those set out under section 18 of the 1971 Act survived any legislative amendments to that Act. It is to be noted that cannabis production is clearly considered a crime under section 4 of the 1971 Act. Accordingly, notwithstanding the drafting error, the Court considers that that the applicant was able to foresee, to a degree that was reasonable in the circumstances, a risk that publication of his book might fall foul of section 18.

On that account the Court concludes that the interference at issue can be considered to satisfy the qualitative requirements of the “prescribed by law” test.

The Court also concludes that the said inference pursued a legitimate aim, namely the prevention of crime.

Turning to the necessity test, the Court must consider whether the interference was a proportionate response to the attainment of the above-stated aim. In particular, it must enquire whether the measures taken against the applicant were necessitated by a “pressing social need” and that relevant and sufficient reasons underpinned those measures (for a full statement of the relevant principles, see the Ahmed and Others v. the United Kingdom judgment of 2 September 1998, Reports of Judgments and Decisions 1998 ‑ VI, pp. 2377-78, § 55).

In making its assessment the Court cannot overlook the fact that there is an increased public acceptance of cannabis for medicinal and recreational purposes and a vociferous lobby in favour of decriminalising certain types of use. A number of Contracting Parties have moved in this direction. However it is impossible to say that there is a European consensus on the desirability of decriminalisation. In the respondent State, it still remains a criminal offence, inter alia , to possess, produce and, of relevance to the instant case, to incite others to produce cannabis. In the Court’s opinion, the decision to maintain on the statute book an offence of incitement to produce cannabis and to penalise authors of publications which serve this end must be considered to fall within the respondent State’s margin of appreciation.

For the Court, the essence of the applicant’s argument is that that margin was exceeded in his case on account of the failure of the domestic courts to construe the true purpose of his book and his aim in publishing it. As to that point, particular weight must be given to the fact that there was lengthy adversarial argument on the applicant’s intention in publishing it and the effect which it had on the behaviour of those who bought it. Witnesses were called by both sides. Whether the prosecution had proved its case against the applicant beyond reasonable doubt was a matter left to the determination of the jury. It is true that the Court of Appeal found a degree of fault with the trial judge’s direction to the jury on the notion of incitement. However, having regard to the entirety of the judge’s direction on this notion, the Court of Appeal considered that the jury was properly apprised of the elements of the offence and the evidence needed in support.

The Court reiterates that it is in no way its task to take the place of the competent national courts but rather to review under Article 10 the decisions they delivered in the exercise of their power of appreciation (see the above-mentioned Handyside judgment , p. 23, § 50). Having regard to the evidence before the domestic court, the Court is persuaded that there were relevant and sufficient reasons to justify the interference with the applicant’s right to freedom of expression and that the penalty imposed on him was a proportionate response to a “pressing social need”.

As to the applicant’s contention that he was victimised by being singled out for prosecution, the Court considers that it is not, in principle, its function to compare different decisions taken, even in apparently similar circumstances, by prosecuting authorities and courts (see the above-mentioned Handyside judgment , p. 27 § 56). In any event, the applicant’s book was to be distinguished from the publications which he considers comparable on account of the fact that it alone was advertised nationally.

Having regard to the above considerations, it follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

Concerning the applicant’s complaint about the seizure of a manuscript at the time of the raid on his house, the Court notes that the applicant has not adduced any evidence to show what steps, if any, were taken to secure its return. It follows that this part of the application must be rejected under Article 3 5 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

2. The applicant maintains that the fairness of his trial was undermined in several respects, in breach of Article 6 of the Convention which provides as relevant:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... .

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

The applicant states that the trial judge failed to mention to the jury that medical evidence had been tendered to him about his medical condition. Furthermore, the trial judge left the jury with the option of drawing an adverse inference from his silence in court without adverting to the fact that this could be explained in terms of the applicant’s physical and mental condition during the trial. In the applicant’s further submission, the trial judge did not direct the jury properly on the applicant’s silence with respect to certain of the questions put to him at the police interview. The applicant maintains in this connection that section 35 of the Criminal Justice and Public Order Act 1994 was not yet in force at the time of the police interview. Accordingly, the trial judge should not have implied to the jury that the applicant had not co-operated with the police at the interview stage or used the applicant’s refusal to answer questions at the police station when directing the jury as to the adverse inferences they might draw about his failure to give evidence.

The Court observes that the applicant has not substantiated that a medical report affirming that it was undesirable for him to go into the witness box was handed to the trial judge, as claimed. It appears from the case-file that such a report was indeed prepared by a Dr Gadsy on 10 May 1995. In a letter to the Registry of the Court dated 24 July 2000, the applicant stated that he was “unable to uncover any conclusive evidence in support of [his] claim that the letter from Dr I. Gadsy was presented to [the trial judge] prior to his comments concerning his reluctance to enter the witness box.”

In these circumstances the Court is led to infer that the medical evidence was never raised before the trial judge. Significantly, the applicant’s counsel never called Dr Gadsy to give evidence or prepare, or have prepared, a statement from Dr Gadsy in due form. In so far as this failing may have been attributable to an oversight on the part of the applicant’s legal team, the Court would observe that that of itself does not engage the responsibility of the respondent State under Article 6 of the Convention.

The Court will accordingly examine whether the direction given by the trial judge on the issue of the applicant’s silence at his trial and at the police interview complied with the requirements of fairness. It notes that in its Condron v. the United Kingdom judgment of 2 May 2000 (application no. 35718/97, to be published in the Court’s official reports) it considered a similar complaint from the standpoint of Article 6 § 1 of the Convention.

The Court observes that in the above-mentioned Condron case, it confirmed in line with its earlier John Murray v. the United Kingdom judgment ( Reports 1996-I) that the right to silence is not an absolute right. Accordingly, the fact that a trial judge leaves a jury with the option of drawing an adverse inference from an accused’s silence either during police interview or during his trial cannot of itself be considered incompatible with the requirements of a fair trial.

The Court further stressed in its Condron judgement that since the right to silence, like the privilege against self-incrimination, lay at the heart of the notion of a fair procedure under Article 6, particular caution was required before a domestic court could invoke an accused’s silence against him. Thus it would be incompatible with the right to silence to base a conviction solely or mainly on the accused’s silence or on a refusal to answer questions or to give evidence himself. Nevertheless, it is obvious that the right cannot and should not prevent that the accused’s silence, in situations which clearly call for an explanation from him, be taken into account in assessing the persuasiveness of the evidence adduced by the prosecution. For the Court, whether the drawing of adverse inferences from an accused’s silence infringes Article 6 is a matter to be determined in the light of all the circumstances of the case, having regard to the situations where inferences may be drawn, the weight attached to them by the national courts in their assessment of the evidence and the degree of compulsion inherent in the situation ( ibid . §§ 55-57).

With reference to the circumstances of the instant case, the Court observes that, as regards the applicant’s refusal to answer a number of questions put to him during the police interview, the trial judge clearly informed the jury that his silence could not be held against him. It is not persuaded by the applicant’s arguments that any subsequent part of the judge’s later direction undermined that warning.

As to the trial judge’s direction on the applicant’s decision not to testify at his trial, the Court is of the opinion that it struck the right balance between the applicant’s right to silence and the circumstances in which an adverse inference may be legitimately drawn from silence by the jury. It is to be recalled that the applicant did not provide any medical explanation for his decision not to give evidence at the trial. It is to be further noted that the trial judge warned the jury that it was not bound to hold the applicant’s silence against him, that his silence could not on its own prove guilt and that an inference could only be drawn as a matter of common-sense. In this latter connection the Court must have regard to the weight of the evidence adduced by the prosecution during the trial and the clear existence of a case to answer.

The Court notes that, in accordance with section 35 of the Criminal Justice and Public Order Act 1994, it was the function of the jury, properly directed, to decide whether or not to draw an adverse inference from the applicant’s silence. It finds that in the instant case the jury’s discretion on this question was confined in a manner which was compatible with the exercise by the applicant of his right to silence at his trial.

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

3. The applicant maintains that his expert’s evidence was central to his defence that he did not intend to incite anyone to break the law. Although the trial judge had allowed the expert to gave evidence to the jury about other publications dealing with cannabis growing, the jury was not permitted to examine their contents. He invokes Article 6 § 3(d) of the Convention, which provides:

“Everyone charged with a criminal offence has the following minimum rights:

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ... .”

The Court considers that the applicant has in no way substantiated that his defence was prejudiced in the manner described. There is no indication that the applicant’s witness was deprived of opportunities which were afforded to witnesses called by the prosecution. What was important for the rights of the defence was the fact that the applicant was able to argue that his book could not be interpreted as an incitement to grow cannabis and to draw the jury’s attention to the availability of other cannabis-related literature which, in his view, may have incited or influenced individuals to do so.

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

4. Finally, the applicant complains that the judgments of the domestic courts contain derogatory statements which amount to a breach of Article 8 of the Convention, which provides as relevant:

“Everyone has the right to respect for his private and family life, ... .”

The Court considers that the applicant’s complaint relates to a perceived affront to his dignity and reputation caused by statements made by the trial judge when handing down sentence and by the Court of Appeal when upholding that sentence. This not a matter which falls within the protection guaranteed by Article 8 of the Convention.

It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

S. Dollé J.-P. Costa Registrar President