partly DISSENTING OPINION OF JUDGE S ir j ohn FREELAND, joined by judge LEVITS

1. I am unable to agree with the conclusion of the majority that there has been in this case an interference with Mrs Bowman’s right to freedom of expression going beyond what is “necessary in a democratic society”.

2. One of the essential foundations of a democratic society is a system which will ensure that parliamentary elections are freely and fairly conducted. Article 3 of Protocol No. 1 to the Convention indeed requires that the free elections which the High Contracting Parties undertake to hold shall take place “under conditions which will ensure the free expression of the people in the choice of the legislature”. In its judgment of 2 March 1987 in the case of Mathieu-Mohin and Clerfayt v. Belgium (Series A no. 113, p. 22, § 47) the Court recognised that, since that Article “enshrines a characteristic principle of democracy”, it is “of prime importance in the Convention system”.

3. In the same judgment, the Court went on to recognise (at p. 24, § 54) that “the Contracting States have a wide margin of appreciation” in relation to the choice of electoral systems, adding that such systems “seek to fulfil objectives which are scarcely compatible with each other: on the one hand, to reflect fairly faithfully the opinions of the people, and on the other, to channel currents of thought so as to promote the emergence of a sufficiently clear and coherent political will”. That the electoral systems of the Contracting States in fact vary greatly is unsurprising, given the extent to which they have been shaped by national histories and characteristics.

4. The United Kingdom has a long parliamentary tradition and an electoral system which has evolved, with changing circumstances, over many years (and which, on one aspect or another, remains a perennial topic of public debate). The Representation of the People Act 1983, as amended, currently sets out a detailed and carefully articulated set of rules for the conduct of elections, reflecting the considered view of the legislature on a subject obviously of crucial importance to it – that is, the need to ensure the free and fair expression of the opinion of the people.

5. Part of this statutory scheme is section 75 of the 1983 Act, under which Mrs Bowman was (unsuccessfully) prosecuted in 1993. That section, taken together with section 76, is intended to promote fairness as between the candidates for election in a particular constituency by limiting the

expenditure which may be incurred for the purpose of improving the electoral prospects of one candidate or prejudicing those of another. The restrictions imposed by section 76 on the election expenditure of a candidate could be rendered ineffective if there were no corresponding limitation, as in section 75, on expenditure by others for that purpose.

6. An essential feature of the section 75 limitation is that no expenses over the prescribed amount are to be incurred “ with a view to promoting or procuring the election of a candidate ” (emphasis added: as paragraph 19 of the present judgment indicates, the words italicised were interpreted by the House of Lords in the Luft case to include the intention to prevent the election of a particular candidate or candidates). The section does not prevent expenditure on the provision of factual material or comment intended merely to inform the public. For a prosecution under the section to succeed, a jury would have to be satisfied beyond reasonable doubt that the defendant’s desire to advance the electoral prospects of one candidate or to prejudice those of another was one of the reasons which played a part in inducing him or her to incur the expense (see the speech of Lord Diplock in Luft, at p. 983, letters C to D).

7. It was submitted on behalf of Mrs Bowman that in incurring expenditure on the distribution of her leaflets she wished only to communicate factually accurate information, and that she was not interested in promoting the election of any particular candidate but only wanted to promote her own convictions. Whether or not she would have succeeded with a defence on these lines cannot now be known, given the outcome of the prosecution in 1993 (see paragraph 14 of the judgment). What is clear, however, is that section 75 would not prevent her and her organisation from informing members of the electorate of their views on abortion and embryo experimentation or from encouraging them to question candidates on those subjects, as long as no more than the permitted amount was spent for the purpose of improving or prejudicing the electoral prospects of a particular candidate.

8. The Court finds, in paragraph 38 of the judgment, that the purpose of section 75 of the 1983 Act, particularly taken in the context of the other detailed provisions on election expenditure, is clearly to contribute towards securing equality between candidates. It therefore concludes “that the application of this law to Mrs Bowman pursued the legitimate aim of protecting the rights of others, namely the candidates for election and the electorate in Halifax and, to the extent that the prosecution was intended to have a deterrent effect, elsewhere in the United Kingdom”.

9. The judgment thus appears to accept the desirability of promoting fairness between competing candidates for election by, inter alia , preventing third parties from campaigning without financial limit for or against a particular candidate or spending unlimited sums of money on the distribution of material which might call for expenditure in reply from a candidate’s compulsorily restricted election budget. It goes on, however, to attach significance to the fact that the limitation on expenditure contained in section 75 was set (by section 14(3) of the Representation of the People Act 1983) as low as GBP 5: see paragraph 45. It then finds, in paragraph 47, that section 75 “operated, for all practical purposes, as a total barrier to Mrs Bowman’s publishing information with a view to influencing the voters of Halifax in favour of an anti-abortion candidate”; and it expresses the Court as not being satisfied “that it was necessary thus to limit her expenditure to GBP 5 in order to achieve the legitimate aim of securing equality between candidates…”.

10. Yet the achievement of the legitimate aim of securing equality between candidates surely militates more in favour of retaining (or even reducing) the very low limit on expenditure by third parties than in favour of increasing (or even removing) it, as long as the election expenditure of candidates themselves is limited to anything like as low a level as it is at present. And it has not been suggested that there is any requirement on the United Kingdom, under the Convention or otherwise, to raise the limits which Parliament has seen fit to impose on candidates’ election expenditure.

11. Paragraph 47 of the judgment also contrasts the limitation set by section 75 with the absence of restrictions upon the freedom of political parties and their supporters to incur expenditure on advertisements at national or regional level, provided that it is not a purpose of the expenditure to improve or damage the electoral prospects of a particular candidate in a particular constituency, or upon the press to support or oppose particular candidates. It is, however, not difficult to understand why fairness at constituency level should be treated as of special importance for the integrity of the electoral process; and the Court has, of course, had occasion in the past to stress the particular importance of the role of the press in a democratic society (see, for example, the Lingens v. Austria judgment of 8 July 1986, Series A no. 103, p. 26, § 41).

12. Confined as it is to expenditure by third parties for the purpose of promoting or harming the electoral prospects of a particular candidate, the interference with the right to freedom of expression which the application of section 75 represents is narrow in scope. It falls, in my view, within the margin of appreciation which is left to a Contracting State in deciding what is necessary, in the light of its own historical experience and current circumstances, for the proper regulation of a process so central to democracy as the conduct of parliamentary elections (and I would add that I consider there to be a clear need for a particularly cautious approach to be adopted in adjudicating internationally on rules prescribed by long-established democratic parliaments on matters so intimately involved with their own composition and operation).

13. I would also add that the role played by single-issue pressure groups in influencing and mobilising public opinion in modern democracies is, as the Government acknowledged, an important one. But a factor of which the State may legitimately take account in determining the regulation of the electoral process is the extent to which limits on the funding of single-issue campaigns at a parliamentary election may be needed in order to counter the risk of excessive diversion of the main electoral debate and to “channel currents of thought so as to promote the emergence of a sufficiently clear and coherent political will” (see the second objective identified by the Court in the passage from the judgment in the Mathieu-Mohin and Clerfayt case which is quoted in paragraph 3 above).

14. Lastly, on the question of proportionality, it is to be noted that the existence of section 75 did not prevent the circulation of 1.5 million of Mrs Bowman’s leaflets throughout the United Kingdom at the 1992 general election, including 25,000 in the Halifax constituency, and that the subsequent prosecution against her failed, even if on the technical ground of non-observance of a time-limit. Having regard to these facts in addition, the extent of the interference with her right to freedom of expression should not be exaggerated.

15. Although in other respects I agree with the conclusions of the majority, for the above reasons I do not find that there has been a violation of Article 10 of the Convention in this case.

[1] . This summary by the registry does not bind the Court.

[2] Notes by the Registrar

. The case is numbered 141/1996/760/961. The first number is the case’s position on the list of cases referred to the Court in the relevant year (second number). The last two numbers indicate the case’s position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[3] . Rules of Court A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (1 October 1994) and thereafter only to cases concerning States not bound by that Protocol. They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently.

[4] . Note by the Registrar. For practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions 1998), but a copy of the Commission’s report is obtainable from the registry.