EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 24839/94
Phyllis BOWMAN
against
the United Kingdom
REPORT OF THE COMMISSION
(adopted on 12 September 1996)
TABLE OF CONTENTS
page
I. INTRODUCTION
(paras. 1-16) . . . . . . . . . . . . . . . . . . . . . . . . 1
A. The application
(paras. 2-4). . . . . . . . . . . . . . . . . . . . . . . 1
B. The proceedings
(paras. 5-11) . . . . . . . . . . . . . . . . . . . . . . 1
C. The present Report
(paras. 12-16). . . . . . . . . . . . . . . . . . . . . . 2
II. ESTABLISHMENT OF THE FACTS
(paras. 17-27). . . . . . . . . . . . . . . . . . . . . . . . 3
A. Particular circumstances of the case
(paras. 17-25). . . . . . . . . . . . . . . . . . . . . . 3
B. Relevant domestic law and practice
(paras. 26-27). . . . . . . . . . . . . . . . . . . . . . 4
III. OPINION OF THE COMMISSION
(paras. 28-49). . . . . . . . . . . . . . . . . . . . . . . . 6
A. Complaint declared admissible
(para. 28). . . . . . . . . . . . . . . . . . . . . . . . 6
B. Point at issue
(para. 29). . . . . . . . . . . . . . . . . . . . . . . . 6
C. Article 10 of the Convention
(paras. 30-49). . . . . . . . . . . . . . . . . . . . . . 6
CONCLUSION
(para. 49). . . . . . . . . . . . . . . . . . . . . . . .10
DISSENTING OPINION OF MR. F. MARTINEZ . . . . . . . . . . . . . . .11
APPENDIX: DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION . . .. . . . . . 12
I.INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicant is Phyllis Bowman, a British citizen born in 1926
and resident in London. She is represented by Mr. David Price, a
solicitor practising in London, and Mr. Geoffrey Robertson, Q.C.,
counsel practising in London.
3. The application is directed against the United Kingdom. The
respondent Government are represented by Mr. Martin Eaton, Foreign and
Commonwealth Office, as Agent.
4. The case, as declared admissible, concerns the complaints of the
applicant that the prosecution brought against her for distributing
leaflets concerning candidates in a Parliamentary election constitutes
an unjustified restriction on her freedom of expression. The
application raises issues under Article 10 of the Convention.
B. The proceedings
5. The application was introduced on 11 March 1994 and registered
on 8 August 1994.
6. On 30 November 1994, the Commission decided to communicate the
application to the respondent Government for their written observations
on the admissibility and merits of the application.
7. The Government submitted their written observations on 17 March
1995. The applicant submitted her written observations in reply on 12
June 1995.
8. On 4 December 1995, the Commission declared the application
admissible insofar as it concerned the applicant's complaints of
restriction on her freedom of expression. The remainder of the
application was declared inadmissible. The Commission did not take into
account further observations submitted by the Government on 22 November
1995. Following the decision on admissibility, these observations were
admitted and sent to the applicant.
9. The parties were then invited to submit any additional
observations on the merits of the application.
10. The Government submitted observations on 17 January 1996 and 15
March 1996 and the applicant submitted additional observations on 30
January 1996.
11. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, placed itself
at the disposal of the parties with a view to securing a friendly
settlement of the case. In the light of the parties' reactions, the
Commission now finds that there is no basis on which a friendly
settlement can be effected.
C. The present Report
12. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes, the following members being present:
Mr. S. TRECHSEL, President
Mrs. G.H. THUNE
Mrs. J. LIDDY
MM. E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
F. MARTINEZ
C.L. ROZAKIS
L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
G.B. REFFI
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
E. BIELIUNAS
13. The text of the Report was adopted by the Commission on
12 September 1996 and is now transmitted to the Committee of Ministers
in accordance with Article 31 para. 2 of the Convention.
14. The purpose of the Report, pursuant to Article 31 para. 1 of the
Convention, is
1) to establish the facts, and
2) to state an opinion as to whether the facts found disclose
a breach by the State concerned of its obligations under
the Convention.
15. The Commission's decision on the admissibility of the application
is attached hereto as an Appendix.
16. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. Particular circumstances of the case
17. The applicant is executive director of the Society for the
Protection of the Unborn Child (SPUC).
18. The 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.
19. 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.
20. The applicant carries out the practice before national elections
to Parliament to arrange in those Parliamentary constituencies where
SPUC 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.
21. Before the elections held in 1992, the 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 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.
22. 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.
23. The judge directed that the applicant be formally acquitted
upholding the submission of the 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.
24. 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.
25. 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
26. 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..."
27. 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.
III. OPINION OF THE COMMISSION
A. Complaint declared admissible
28. The Commission has declared admissible the applicant's complaints
concerning the prosecution which was brought against her in respect of
her distribution of leaflets referring to candidates in a Parliamentary
election.
B. Point at issue
29. The issue to be determined is:
- whether there has been a violation of Article 10 (Art. 10) of
the Convention.
C. Article 10 (Art. 10) of the Convention
30. Article 10 (Art. 10) provides, as relevant:
"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
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."
1. Existence of a restriction on the applicant's freedom of
expression: Article 10 para. 1 (Art. 10-1)
31. The applicant submits that her freedom of expression has been
restricted by the operation of the 1983 Act. She has been convicted and
fined on earlier occasions and the prosecution in 1993 failed because
of a technicality. She has no doubt that if she distributes leaflets
at future elections she will face further prosecutions. This situation
discloses in her view clear restriction on her expression of opinion
and ideas contrary to Article 10 para. 1 (Art. 10-1) of the Convention.
32. The Government dispute the existence of any restriction on the
freedom of expression. They 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, in particular, since the prosecution against her in fact
failed.
33. The Commission notes the history of prosecutions and convictions
in respect of the applicant's activities in distributing leaflets
before elections. It recalls that the most recent prosecution did not
result in a conviction as a result of a procedural time-bar. It does
not find it useful to speculate as to whether or not the applicant
would in fact have been convicted if the matter had been left to the
jury. The Commission considers that the prosecution authorities regard
her conduct as falling within the statutory prohibition and that the
applicant must be regarded as being at a risk of prosecution and
conviction which is real and substantial. Consequently, it must be
concluded that the applicant is subject thereby to restriction on her
freedom of expression within the first paragraph of Article 10
(Art. 10) of the Convention.
2. Conformity with Article 10 para. 2 (Art. 10-2)
34. The Commission must therefore determine whether this restriction
conforms with the requirements of the second paragraph of Article 10,
(Art. 10) namely, whether it is prescribed by law and necessary in a
democratic society for one or more of the legitimate aims specified.
a. "Prescribed by law"
35. The applicant has not disputed that the prosecution brought
against her complied with this criterion.
36. The Commission finds no issue arising, either as to the existence
of a basis in domestic law or as to the quality of the applicable law,
which requires examination (see eg. Eur. Court HR, Margareta and Roger
Andersson v. Sweden judgment of 25 February 1992, Series A no. 226-A,
p. 25 para. 75).
b. legitimate aim or aims
37. The applicant disputes that the restriction is necessary for any
of the legitimate aims provided for in paragraph 2 of Article 10
(Art. 10-2) . She states that the law in question 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.
38. The Government submits that the restriction, which seeks to
control expenditure by candidates, pursues the legitimate aim of
protecting the rights of others, namely, the rights of the candidates
whose chances of election may be affected and the rights of the
electors not to be subject to potential distortion in the choice of
candidates available to them.
39. The Commission accepts that the purpose of section 75 of the 1983
Act, pursuant to which the applicant was prosecuted, is to control the
expenditure of individual candidates standing for election and to
contribute to securing, as far as may be practicable, that they are on
a footing of equality as regards the financing of their personal
campaigns. The measure in this case may therefore be considered as
pursuing the legitimate aim of protecting the rights of others, namely,
the candidates and the electors in a particular constituency.
c. "Necessary in a democratic society..."
40. The applicant submits the restriction is not necessary in
pursuit of any alleged legitimate aim, and is not required by a
pressing social need and is disproportionate. The 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 and
bodies 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 individual electors who wish to raise
single issues of importance to them. While other provisions in the 1983
Act are aimed at preventing corrupt election practices such as bribery
and vote-rigging, these cannot lend justification to the restriction
on freedom of expression imposed by section 75. Since she is not a
supporter or opponent of any particular candidate, prosecution cannot
serve the alleged purpose of stopping supporters of a candidate from
publicising his or her merits.
41. In any event however, the applicant would question that
expenditure of reasonable amounts of money by supporters or opponents
of candidates must necessarily be prohibited. 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 function of section 75 in
the context of current electoral practice is to ensure that the agenda
for elections is set by the major political parties and reflected in
the news media, without the intrusion of single issues of a moral
dimension which no major party wishes to confront. The applicant points
to a number of issues which many individuals and groups consider are
of crucial importance to their voting choice eg. issues relating to the
arms trade, cruelty to animals in sport, Republicanism and the
monarchy, need for a Bill of Rights, need for greater protection of the
environment, Sunday trading and submits that section 75 frustrates any
effective attempt to direct public attention towards these issues
during an election. Because of the tendency of political parties to
make these issues subject of "conscience votes" by MPs the beliefs of
individual candidates about them is much more important that their
views about other matters which are or will become the subject of party
policy, which means that their vote will be "whipped" into the party
line.
42. 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 or her 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.
43. The Government also reiterates that the restriction imposed on
freedom of expression is limited only to the incurring of expenditure
"with a view to promoting or procuring the election of a candidate" :
it does not prohibit expression of opinion generally or the conveying
of information concerning topics of public interest and legislative
action or even factual, accurate information about candidates. The
applicant is free at any time during an election or otherwise to
express her opinions about abortion and other matters and to criticise
the views of politicians and others. Section 75 is, in their
submission, part of a statutory code designed to ensure that the result
of an election is not determined by the wealth of a candidate or his
or her supporters and as such, the means used to achieve this aim are
well within their margin of appreciation.
44. The Government submit that the legislation is not directed at
prohibiting "single issue" campaigning but applies generally to
expenditure "with a view to promoting or procuring the election of a
candidate". Further, if an individual were permitted to incur expense
in supporting or opposing a candidate on a particular issue, a
candidate who was affected would have to incur expense to answer the
points raised, which would either defeat the purpose of limiting
candidate's expenditure or adversely affect a candidate who would be
unable to respond.
45. The Commission recalls the key principles underlying the
application of the "necessity" test in the second paragraph of
Article 10 (Art. 10) of the Convention. Paramount is the consideration
that freedom of expression constitutes one of the essential foundations
of a democratic society: exceptions to it must be narrowly interpreted
and the necessity for any restrictions convincingly established. The
adjective "necessary" has also been held to imply the existence of a
"pressing social need". In assessing whether such need exists,
Contracting States have a certain margin of appreciation, but this is
subject to review by the Convention organs, which in exercising their
supervisory jurisdiction do not take the place of the national
authorities but look at the interference complained of in light of the
case as a whole and determine whether is proportionate to the
legitimate aim pursued and whether the reasons adduced by the national
authorities to justify it are "relevant and sufficient" (see, amongst
others, Eur. Court HR, The Sunday Times v. the United Kingdom (no. 2)
judgment of 26 November 1991, Series A no. 217, p. 29 para. 50).
46. As regards whether the restriction imposed on the applicant by
the operation of section 75 is proportionate with its aim, the
Commission notes that the provision covers the incurring of
unauthorised expenditure with a view to promoting or procuring the
election of a particular candidate. It is apparent that this is phrased
in broad terms which extend beyond prohibition of direct publicity for
or against a particular candidate. Assuming, as the Government argue
for the purposes of the current application, that the applicant's
leaflets are to be regarded as being distributed with a view to
promoting the election of the candidate with the stand on abortion most
acceptable to the applicant, the Commission is not satisfied that the
need to regulate candidates' finances extends to a prohibition of the
expression of opinion or information which may indirectly have the
effect of influencing voting opinion. The Commission notes that the
information concerning abortion views of candidates might in fact have
the tendency to influence certain voters in different directions,
depending on their own personal convictions. The Commission is not
persuaded therefore that the communication of information concerning
candidates' position on single issues, such as abortion, can be
considered as unbalancing the position of equality of candidates in a
particular constituency. While the Government has stated that publicity
on a particular topic may force a candidate to incur expense in
answering the point or countering any effect, the Commission finds no
indication in the circumstances of the present case that the
applicant's publication of her leaflet placed any candidate in an
unfair or unequal position. The Commission does not doubt that the
insistence on "conscience" issues by individuals with strongly-held
opinions may be a nuisance or annoyance to candidates, who fight
elections as part of a national party campaign. However, individual
freedom of expression, as a key ingredient of a democratic society,
must be considered inextricably linked with a free election system and
cannot be excluded without convincing justification.
47. The Commission has had regard to whether the expression of
opinion or information on "single issues" addressed by individuals or
groups with strongly held views may operate in particular
constituencies so as to "distort" election results. It has previously
considered in the context of Article 3 (P1-3) of the First Protocol,
which guarantees the "free expression of the opinion of the people in
the choice of the legislature", that one of the legitimate objectives
of national electoral systems is to channel currents of thought so as
to promote the emergence of a sufficiently clear and coherent political
will (see eg. No. 11406/85 dec. 10.3.88 DR 55 p. 130). The Government
have not however produced any argument to the effect that "single
issue" campaigning of the kind illustrated in the applicant's case
would distract voters from the political platforms which are the basis
of national party campaigns to such a degree as would hinder the
electoral process.
48. Having regard to the above and in light of the fact that the
restriction applied to the distribution by the applicant of factually
accurate information concerning candidates' views or voting record on
important legal and moral issues, such as abortion and foetal
experimentation, which are of public interest and not irrelevant to
pre-election debate, the Commission is of the opinion that the measure
was disproportionate to the legitimate aim pursued and cannot be
regarded as "necessary in a democratic society" for the protection of
the rights of others.
CONCLUSION
49. The Commission concludes, by 28 votes to 1, that there has been
a violation of Article 10 (Art. 10) of the Convention.
H.C. KRÜGER S. TRECHSEL
Secretary President
to the Commission of the Commission
(Or. français)
OPINION DISSIDENTE DE M. F. MARTINEZ
J'ai voté contre l'avis de la majorité car j'estime que, dans les
circonstances de l'espèce, il n'y a pas eu violation de l'article 10
de la Convention .
Il est vrai que la liberté d'expression constitue l'un des
fondements essentiels dans une société démocratique ; mais cette
liberté repose elle-même sur une société dotée d'une structure la plus
démocratique possible. Or, l'institution qui symbolise par excellence
la démocratie est le Parlement. Tous les candidats au Parlement doivent
être élus dans une dynamique qui assure l'égalité des chances entre eux
et je considère que les modalités de la confrontation électorale font
partie de a marge d'appréciation des Etats, compte tenu de leur
particulières spécificités. Je suis d'avis que, lorsque le système est
établi par des lois issues du Parlement - institution qui incarne
l'expression de la volonté du peuple - les organes de la Convention
doivent les respecter dans toute la mesure du possible et ne pas
substituer leurs propres idées à celles de la volonté démocratique
exprimée par la loi interne.
Cela dit, je vois que la Commission censure la loi britannique
tendant à favoriser l'égalité de chances pour les candidats aux
élections législatives moyennant l'interdiction faite aux tierces
personnes de dépenser de l'argent dans la promotion de l'élection d'un
candidat.
En ce qui me concerne, je trouve en cela un procédé légitime,
même si les dépenses servent à diffuser des idées qui sont en dehors
du contexte des élections.
En conséquence, il me semble que la loi en question est
pertinente dans une société démocratique non pas seulement pour la
protection des droits des autres candidats, mais aussi pour assurer que
la première institution de la société démocratique - le Parlement -
soit composée de la manière la plus démocratique, à savoir que les
candidats bénéficiant d'un appui financier ne puissent avantager à
ceux qui en sont démuni.
Or, le cas de la requérante est justifié par le second paragraphe
de l'article 10 de la Convention.
Full & Egal Universal Law Academy