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)
Full & Egal Universal Law Academy