AS TO THE ADMISSIBILITY OF
Application No. 17634/91
by S. and G.
against the United Kingdom
The European Commission of Human Rights sitting in private on
2 September 1991, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
G. JÖRUNDSSON
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.C. GEUS
A.V. ALMEIDA RIBEIRO
M.P. PELLONPÄÄ
B. MARXER
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 10 October 1990
by S. and G. against the United Kingdom and registered on 9 January
1991 under file No. 17634/91;
Having regard to the report provided for in Rule 47 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The first applicant is a British citizen, born in 1945 and
resident in London. He is a private art gallery curator by
profession. The second applicant is a Canadian citizen, born in 1951
and resident in Vancouver. He is a fine artist/sculptor by profession.
They are represented before the Commission by Messrs. Stephens
Innocent, Solicitors, London.
The facts of the present case, as submitted by the applicants,
may be summarised as follows:
A. The particular circumstances of the case
The second applicant was to exhibit, as of 1 December 1987, in
the first applicant's gallery one of his sculptures, "Human Earrings",
as part of an exhibition entitled "Animals". This sculpture consisted
of a model's head which had attached to each of its ears an earring
made out of a freeze-dried human foetus, of three to four months'
gestation, by screwing a fitting into the foetus' skull and attaching
the upper end of the fitting to the lobe of the model's ear.
Without the consent of the first applicant or his gallery, the
second applicant had published a press release about the sculpture and
his other work, which attracted much media attention. On 1 December
1987, soon after the exhibition opened, the police attended the
gallery and seized the sculpture. Subsequently the applicants were
charged with and convicted, by jury trial, of the offence of outraging
public decency, an offence under English common law. Unlike offences
under the Obscene Publications Act 1959, the applicants had no
possibility of submitting that the sculpture had overriding artistic
merit as a defence to the charge. The first applicant was fined £350,
or 21 days' imprisonment, and the second applicant £500, or 28 days'
imprisonment. The Court of Appeal rejected the applicants' appeal on
10 July 1990.
From newspaper reports of the Court of Appeal's judgment it
appears that the applicants had claimed that there was no common law
offence of outraging public decency and that they should have only
been prosecuted, if at all, under section 2 of the Obscene
Publications Act 1959, qualified by the statutory defence of intrinsic
artistic merit (section 2(4) of that Act). The Lord Chief Justice
held that the offence of outraging public decency had been established
since 1973 in the case of R v. Knuller (Publishing, Printing and
Promotions) Ltd. ((1973) AC 435, 493). The Court considered that there
was a factual and moral difference between the offence under the 1959
Act, prohibiting things which by the recognised standards of propriety
tend to deprave and corrupt public morals, and the offence of
outraging public decency, aimed at material which tended to engender
revulsion, disgust and outrage, whether or not public morals were
involved. The Court also rejected the applicants' submission that for
such a common law charge to succeed the prosecution had to prove a
specific form of mens rea (intention or recklessness) regarding the
outrage to public decency. Their Lordships considered that this was
not a necessary element of the offence. It sufficed that there was an
intention to do an act which in fact outraged public decency. It may
even be the case that the outrage was unintentional, yet the public
had the right to be protected regardless of the defendant's state of
mind. The Court of Appeal refused the applicants leave to appeal to
the House of Lords.
B. The relevant domestic law and practice
According to the applicants, the generalised offence of
outraging public decency was first declared to exist by the House of
Lords in the case of R v. Knuller (Publishing, Printing and
Promotions) Ltd. ((1973) AC 435), following an obiter statement in the
case of Shaw v. the Director of Public Prosecutions ((1962) AC 220).
There had been a successful earlier prosecution in 1963
concerning homosexual acts in public places, when an individual had
been convicted of having committed an act of a lewd, obscene and
disgusting nature which outraged public decency (R v. Mayerling (1963)
2 Q.B. 717). In that case the Court of Criminal Appeal had held that
it was well established that there was a common law offence of
comitting an act outraging public decency. In the aforementioned Shaw
case in 1962, Lord Reid had stated as follows:
"I shall not examine the authorities because I think
they establish that it is an indictable offence to say
or do or exhibit anything in public which outrages
public decency, whether or not it also tends to corrupt
or deprave those who see or hear it."
The Solicitor General stated in 1964 that this common law
offence would not be used to circumvent section 2 of the Obscene
Publications Act 1959, subparagraph 4 of which provides, on
prosecution for publishing obscene material, a defence of intrinsic
artistic merit.
The common law offence was further clarified and applied to
certain dating advertisements in a magazine for homosexuals in the
Knuller case when the House of Lords confirmed the aforementioned view
of Lord Reid. In the Knuller judgment Lord Simon stressed certain
features of the offence which should be brought to a jury's attention
by the trial judge:
"It should be emphasised that 'outrage', like 'corrupt', is
a very strong word. 'Outraging public decency' goes
considerably beyond offending the susceptibilities of,
or even shocking, reasonable people. Moreover the offence
is ... concerned with recognised minimum standards of
decency, which are likely to vary from time to time.
Finally, notwithstanding that 'public' in the offence is
used in a locative sense, public decency must be viewed
as a whole; and ... the jury should be invited, where
appropriate, to remember that they live in a plural
society, with a tradition of tolerance towards minorities,
and that this atmosphere of toleration is itself part of
public decency."
COMPLAINTS
The applicants complain that there has been an unjustified
interference with their freedom of expression contrary to Article 10
of the Convention. They contend that freedom of artistic expression,
including the creation and promotion of works of art, is protected by
this Convention provision (Eur. Court H.R., Müller and Others judgment
of 24 May 1988, Series A no. 133, p. 19, para. 27). They also submit
that the interference in question was neither prescribed by law nor
necessary in a democratic society for the protection of morals. The
interference was disproportionate to any aims, given the absence of
any balancing of the conflicting interests, as they had no opportunity
to explain the reasons for, and the merits of, their actions by way of
a defence to the criminal charge.
THE LAW
The applicants complain that their conviction and sentence for
outraging public decency constituted an unjustified interference with
their freedom of expression ensured by Article 10 (Art. 10) of the
Convention, the relevant part of which reads as follows:
"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 ... 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 ..."
Freedom of artistic expression falls within the ambit of the
rights protected by Article 10 para. 1 (Art. 10-1) of the Convention. This
freedom consists not only in freedom to create works of art, but also
in freedom to disseminate them through exhibitions (Eur. Court H.R.,
Müller and Others judgment of 24 May 1988, Series A no. 133, p. 19,
para. 27, and Comm. Report p. 43, para. 95). The Commission finds
that the applicants suffered an interference with the exercise of
their freedom of expression by virtue of their conviction and sentence
for outraging public decency, following their public exhibition of the
second applicant's sculpture "Human Earrings". These criminal
proceedings clearly resulted in "penalties" being imposed upon the
applicants, within the meaning of Article 10 para. 2 (Art. 10-2) of the
Convention. The Commission must, therefore, proceed to examine
whether the interference in question was prescribed by law, pursued
one or more of the legitimate aims under Article 10 para. 2
(Art. 10-2) and was necessary in a democratic society for achieving
that aim or aims.
The applicants first contend that the prosecution for
outraging public decency was not prescribed by law, being an offence
of inadequate accessibility and forseeability, as these terms were
defined in The Sunday Times case (Eur. Court H.R., The Sunday Times
judgment of 26 April 1979, Series A no. 30, pp. 30-31, paras. 47-49).
They submit, inter alia, that the prosecution should have been
founded, if at all, upon the statutory offence of obscenity contained
in section 2 of the Obscene Publications Act 1959, which in its fourth
subparagraph envisages a defence of intrinsic artistic merit. This
enables the trial court to balance the conflicting interests.
As the Court observed in the aforementioned Sunday Times case,
the word "law" in the expression "prescribed by law" covers not only
statute but also unwritten law. No importance can therefore be
attached to the fact that the offence for which the applicants were
prosecuted was a creature of the common law and not of legislation.
Whatever the source of the law, it must be sufficiently clear:
"In the Court's opinion, the following are two of the
requirements that flow from the expression 'prescribed
by law'. Firstly, the law must be adequately accessible:
the citizen must be able to have an indication that is
adequate in the circumstances of the legal rules
applicable to a given case. Secondly, a norm cannot be
regarded as a 'law' unless it is formulated with sufficient
precision to enable the citizen to regulate his conduct:
he must be able - if need be with appropriate advice - to
foresee, to a degree that is reasonable in the circumstances,
the consequences which a given action may entail. Those
consequences need not be foreseeable with absolute certainty:
experience shows this to be unattainable. Again, whilst
certainty is highly desirable, it may bring in its train
excessive rigidity and the law must be able to keep pace
with changing circumstances. Accordingly, many laws are
inevitably couched in terms which, to a greater or lesser
extent, are vague and whose interpretation and application
are questions of practice." (Ibid. p. 31, para. 49)
As regards the facts of the present case, the Commission notes
that the common law offence of outraging public decency has been
clear, or "accessible", since the Knuller case in 1973, if not since
the Mayerling case in 1963 (see Relevant domestic law and practice
above). Having regard to the judgment of Lord Simon in the Knuller
case, it seems that it would have been open to the applicants to
submit to the trial court that the sculpture in question was not an
outrage to public decency, given that the atmosphere of tolerance is
in itself part of public decency in a plural society. It appears,
therefore, that freedom of expression is not wholly irrelevant in a
prosecution for this offence. The domestic courts in the applicants'
case explained the difference between the common law offence of
outraging public decency and the statutory offence of obscenity as
being a qualitative one of fact and morals, the former being concerned
with more offensive material which engenders such revulsion, disgust
and outrage that it is irrelevant whether its consequence is actually
to undermine public morals. This distinction, in the Commission's
view, meets the applicants' objection that they could not have
foreseen a prosecution for that offence, rather than a prosecution, if
at all, under section 2 of the Obscene Publications Act 1959. The
Commission finds, therefore, that the applicants did have an
indication, sufficient in the circumstances, of the existence of the
offence of outraging public decency. The interference with the
applicants' freedom of expression was thus "prescribed by law" within
the meaning of Article 10 para. 2 (Art. 10-2) of the Convention.
The applicants concede that the interference with their
freedom of expression may fall within the legitimate aim of protecting
morals, as envisaged by Article 10 para. 2 (Art. 10-2) of the
Convention. The Commission finds that the facts of the present case
confirm that the applicants were prosecuted for the purpose of
protecting morals.
The applicants' contend, however, that the restriction on
their freedom of expression was disproportionate, given the
limitations on their defence to the charge of outraging public
decency. They submit, inter alia, that their conviction will have a
chilling effect on the artistic community as a whole, with art
galleries being extremely cautious in the future to exhibit
controversial work for fear of such prosecutions. The balanced
protection of the Obscene Publications Act 1959 can now be
circumvented by framing a prosecution on the basis that the article is
offensive and disgusting rather than obscene, a distinction which, in
their view, is impossible in reality to make.
The Commission notes the wide margin of appreciation afforded
to States in the protection of morals, given the absence of any
uniform European conception. Artists are not immune from restrictions
on their work for this purpose, having particular regard to the
express reference to their duties and responsibilities in Article 10
para. 2 (Art. 10-2) of the Convention. By reason of their direct and
continuous contact with the vital forces of their countries, States
are in principle in a better position than the Convention organs to
assess the necessity of a restriction on artistic freedom of
expression for the protection of morals (Eur. Court H.R., Müller and
Others judgment of 24 May 1988, Series A no. 133, p. 22, paras.
33-35).
As regards the facts of the present case, the Commission notes
that the second applicant's sculpture used two freeze-dried foetuses
of three to four months' gestation as earrings. The sculpture was
displayed in an exhibition which was open to, and sought to attract
the public. In the circumstances, the Commission does not find
unreasonable the view taken by the English courts that this work was
an outrage to public decency. Having regard to the margin of
appreciation left to them under Article 10 para. 2 (Art. 10-2) of the
Convention, the domestic courts were entitled to consider it
"necessary" for the protection of morals to impose a fine on the
applicants for exhibiting the piece. It follows that the application
is manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy