Bowman v. The United Kingdom (141/1996/762/959) 19 February 1998: prosecution following distribution of leaflets by abortion campaigner prior to general election -- margin of appreciation in striking balance between rights to free elections and freedom of expression –legitimate aim.

United Kingdom - prosecution following distribution of leaflets by abortion campaigner prior to general election (Representation of the People Act 1983, section 75)

I. GOVERNMENT’S PRELIMINARY OBJECTION (applicant’s status as "victim")

Prosecution brought against applicant - indication to her that she ran risk of being prosecuted again in future unless she modified her conduct - in these circumstances she could claim to have been directly affected by law and therefore to be "victim" within meaning of Article 25 1 of the Convention.

Conclusion: rejected (unanimously).

II. ARTICLE 10 OF THE CONVENTION

A. Existence of restriction
Prohibition in section 75 of 1983 Act of expenditure in excess of GBP 5 by unauthorised persons on publications etc. during election period amounted to restriction on freedom of expression.

B. "Prescribed by law"
Restriction was "prescribed by law".

C. Legitimate aim
Protection of rights of others, namely candidates for election and electorate.

D. "Necessary in a democratic society"
States have margin of appreciation in striking balance between rights to free elections and freedom of expression.

Section 75 of 1983 Act operated for all practical purposes as total barrier to applicant’s publishing information with a view to influencing voters in favour of anti-abortion candidate - not necessary to set limit on expenditure as low as GBP 5 to achieve aim of securing equality between candidates - restriction disproportionate.

Conclusion: violation (fourteen votes to six).

I. THE CIRCUMSTANCES OF THE CASE

10. Mrs Phyllis Bowman was born in 1926 and lives in London. She is the executive director of the Society for the Protection of the Unborn Child ("SPUC"), an organisation of approximately 50,000 members which is opposed to abortion and human embryo experimentation and seeks changes to the present United Kingdom law which permits abortion up to 22 weeks and embryo experimentation up to 14 days.

11. 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 on proposed legislation according to their consciences. Mrs Bowman and SPUC therefore took the view that, if electors were to be in a position to bring about changes to the law through their choice of representative, it was important for them to be informed of the opinions of candidates standing for election with regard to abortion and related issues.

12. In the period immediately before the Parliamentary elections in April 1992, Mrs Bowman therefore arranged to have some one and a half million leaflets distributed in constituencies throughout the United Kingdom, including, in the constituency of Halifax, 25,000 copies of a leaflet which read as follows:

"We are not telling you how to vote, but it is essential for you to check on Candidates’ voting intentions on abortion and on the use of the human embryo as a guinea-pig…

13. Mrs Bowman was charged with an offence under subsections 75(1) and (5) of the Representation of the People Act 1983 ("the 1983 Act"), which prohibits expenditure of more than five pounds sterling ("GBP") by an unauthorised person during the period before an election on conveying information to electors with a view to promoting or procuring the election of a candidate (see paragraphs 19-21 below).

14. At Mrs Bowman’s trial at Southwark Crown Court on 27 September 1993, the judge directed her acquittal, because the summons charging her with the offence had not been issued within one year of the alleged prohibited expenditure, in accordance with the time-limit stipulated in section 176 of the 1983 Act. The proceedings were, nonetheless, reported in the press.

15. In 1979, Mrs Bowman had been convicted of an offence under section 75 of the 1983 Act in respect of a leaflet distributed prior to the Ilford North by-election and in 1982 she had also been convicted in respect of a leaflet distributed during the elections for the European Parliament. On both occasions she was ordered to pay a fine and the prosecution costs

A. Existence of a restriction

31. The Government submitted that there had been no restriction of Mrs Bowman’s right to freedom of expression, since section 75 of the 1983 Act restricted only the freedom of unauthorised persons to incur expenditure with a view to promoting or procuring the election of a particular candidate in a parliamentary election, but not their freedom to express opinions or disseminate information more generally (see paragraph 19 above).

32. The Commission, like the applicant, observed that the fact that the prosecuting authorities obviously regarded her conduct as falling within the statutory prohibition caused, through the fear of prosecution, a restriction on her freedom of expression.

33. The Court notes that section 75 of the 1983 Act does not directly restrain freedom of expression, but instead limits to GBP 5 the amount of money which unauthorised persons are permitted to spend on publications and other means of communication during the election period. Moreover, it does not restrict expenditure on the transmission of information or opinions in general, but only that incurred during the relevant period "with a view to promoting or procuring the election of a candidate".

Nonetheless, there can be no doubt that the prohibition contained in section 75 amounted to a restriction on freedom of expression, which directly affected Mrs Bowman (see paragraph 29 above).

34. It remains to be considered whether this restriction was "prescribed by law", pursued a legitimate aim and was "necessary in a democratic society".

B. "Prescribed by law"

35. The Court considers, and indeed this was not disputed before it, that the restriction on expenditure provided for by section 75 of the 1983 Act was "prescribed by law".

C. Legitimate aim

36. The Government maintained that the spending limit in section 75 of the 1983 Act pursued the aim of protecting the rights of others in three ways. First, it promoted fairness between competing candidates for election by preventing wealthy third parties from campaigning for or against a particular candidate or issuing material which necessitated the devotion of part of a candidate’s election budget, which was limited by law (see paragraph 18 above), to a response. Secondly, the restriction on third-party expenditure helped to ensure that candidates remained independent of the influence of powerful interest groups. Thirdly, it prevented the political debate at election times from being distorted by having the discussion shifted away from matters of general concern to centre on single issues.

37. In the applicant’s view, section 75, far from pursuing a legitimate aim, only operated to curtail democratic freedom of expression. It was improbable in the extreme that single issue groups, such as SPUC, could distract voters from the mainstream political platforms to such a degree as to hinder the electoral process. Furthermore, the restriction on expenditure could not properly be said to ensure equality between candidates, because they were already subject to inequalities depending on whether or not they received the support of one of the major political parties, which were free to spend unlimited amounts on campaigning at national level as long as they did not attempt to promote or prejudice any particular candidate (see paragraph 22 above).

38. The Court finds it clear that the purpose of section 75, particularly taken in the context of the other detailed provisions on election expenditure in the 1983 Act, is to contribute towards securing equality between candidates. It therefore concludes, as did the Commission, 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.

It considers that the arguments advanced by the applicant on this point are of greater relevance to the issue whether the restriction was "necessary in a democratic society", to which question it now turns.

D. "Necessary in a democratic society"

39. The Government maintained that section 75 of the 1983 Act imposed only a partial restriction on expenditure (see paragraph 31 above), which was no more extensive than was necessary to achieve the legitimate aims pursued. They pointed out that there had been other means of communication open to Mrs Bowman, for example, she could have started her own newspaper, had letters or articles published in the press, given interviews on radio or television, stood for election herself or published leaflets with the purpose of informing the electorate without promoting or opposing any particular candidate.

40. The applicant, as did the Commission, considered that the restriction was disproportionate. She contended that there was no pressing social need to suppress the dissemination of factually accurate information about the position of candidates for public office on important moral issues; on the contrary, there was a pressing need to permit such matters to be put on the political agenda prior to elections. Despite the Government’s submission that the restriction was necessary to ensure equality between candidates, there was no indication that Mrs Bowman’s leaflets had operated to disadvantage any particular candidate, since it was possible that the information they contained attracted as many supporters as opponents of the different policies on abortion. Furthermore, she asserted that the restriction was illogical since no limit was placed on the powers of the mass media to publish material in support of or opposition to candidates or on the political parties and their supporters to pay for advertising at national or regional levels as long as they did not attempt to promote or prejudice the electoral prospects of any particular candidate.

41. The Court observes, in the first place, that the limitation on expenditure prescribed by section 75 of the 1983 Act is only one of the many detailed checks and balances which make up United Kingdom electoral law. In such a context, it is necessary to consider the right to freedom of expression under Article 10 in the light of the right to free elections protected by Article 3 of the First Protocol to the Convention, which provides:

"The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature."

42. Free elections and freedom of expression, particularly freedom of political debate, together form the bedrock of any democratic system (see the Mathieu-Mohin and Clerfayt v. Belgium judgment of 2 March 1987, Series A no. 113, p. 22, 47 and the Lingens v. Austria judgment of 8 July 1986, Series A no. 103-B, p. 26, 41-42). The two rights are inter-related and operate to reinforce each other: for example, as the Court has observed in the past, freedom of expression is one of the "conditions" necessary to "ensure the free expression of the opinion of the people in the choice of the legislature" (see the above-mentioned Mathieu-Mohin and Clerfayt judgment, p. 24, 54). For this reason, it is particularly important in the period preceding an election that opinions and information of all kinds are permitted to circulate freely.

43. Nonetheless, in certain circumstances the two rights may come into conflict and it may be considered necessary, in the period preceding or during an election, to place certain restrictions, of a type which would not usually be acceptable, on freedom of expression, in order to secure the "free expression of the opinion of the people in the choice of the legislature". The Court recognises that, in striking the balance between these two rights, the Contracting States have a margin of appreciation, as they do generally with regard to the organisation of their electoral systems (see the above-mentioned Mathieu-Mohin and Clerfayt judgment, pp. 23 and 24, 52 and 54).

44. Turning to the facts of the present case, the Court’s task is to determine whether, in all the circumstances, the restriction on Mrs Bowman’s freedom of expression was proportionate to the legitimate aim pursued and whether the reasons adduced by the national authorities in justification of it were relevant and sufficient (see the above-mentioned Lingens judgment, p. 26, 40).

45. In this connection it finds it significant that the limitation on expenditure contained in section 75 of the 1983 Act was set as low as GBP 5. It recalls that this restriction applied only during the four to six weeks preceding the general election (see paragraphs 16 and 18-19 above). However, although it is true that Mrs Bowman could have campaigned freely at any other time, this would not, in the Court’s view, have served her purpose in publishing the leaflets which was, at the very least, to inform the people of Halifax about the three candidates’ voting records and attitudes on abortion, during the critical period when their minds were focussed on their choice of representative (see paragraph 11 above).

46. The Court notes the Government’s submission that the applicant could have made use of alternative methods to convey the information to the electorate. However, it is not satisfied that, in practice, she had access to any other effective channels of communication. For example, it has not been demonstrated that she had any way of ensuring that the material contained in the leaflets was published in a newspaper or broadcast on radio or television. Although she could herself have stood for election and thus become entitled to incur the statutory amount of expenses allowed to candidates, this would have required her to pay a deposit of GBP 500, which she would in all probability have forfeited (see paragraphs 17 and 18 above). Furthermore, it was not her desire to be elected to Parliament, but only to distribute leaflets to voters.

47. In summary, therefore, the Court finds that section 75 of the 1983 Act 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. It is not 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, particularly in view of the fact that there were no restrictions placed upon the freedom of the press to support or oppose the election of any particular candidate or upon political parties and their supporters to advertise at national or regional level, provided that such advertisements were not intended to promote or prejudice the electoral prospects of any particular candidate in any particular constituency (see paragraph 22 above). It accordingly concludes that the restriction in question was disproportionate to the aim pursued.

It follows that there has been a violation of Article 10 of the Convention.

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