PROCEDURE

The case was referred to the Court by the European Commission of Human Rights (“the Commission”) and by the Government of the United Kingdom of Great Britain and Northern Ireland (“the Government”) on 19 October 1996 and on 7 January 1997 respectively, within the three-month period laid down by Article 32 § 1 and Article 47 of the Convention. It originated in an application (no. 24839/94) against the United Kingdom lodged with the Commission under Article 25 by Mrs Phyllis Bowman, a British citizen, on 11 March 1994. The Commission’s request referred to Articles 44 and 48 of the Convention and to the declaration whereby the United Kingdom recognised the compulsory jurisdiction of the Court (Article 46). The object of the request and of the Government’s application was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article 10 of the Convention.

In response to the enquiry made in accordance with Rule 33 § 3 (d) of Rules of Court A, the applicant stated that she wished to take part in the proceedings and designated the lawyer who would represent her (Rule 30).

The Chamber to be constituted included ex officio Sir John Freeland, the elected judge of British nationality (Article 43 of the Convention), and Mr R. Bernhardt, the Vice-President of the Court (Rule 21 § 4 (b)). On 29 October 1996, in the presence of the Registrar, the President of the Court, Mr R. Ryssdal, drew by lot the names of the other seven members, namely Mr L.-E. Pettiti, Mr B. Walsh, Mr C. Russo, Mr A. Spielmann, Mr A.N. Loizou, Mr M.A. Lopes Rocha and Mr P. Jambrek (Article 43 in fine of the Convention and Rule 21 § 5).

As President of the Chamber (Rule 21 § 6), Mr Bernhardt, acting through the Registrar, consulted the Agent of the Government, the applicant’s representative and the Delegate of the Commission on the organisation of the proceedings (Rules 37 § 1 and 38). Pursuant to the order made in consequence and an extension of the time-limit granted at the request of the applicant, the Registrar received the Government’s memorial on 3 June 1997 and the applicant’s memorial on 18 July 1997.

In accordance with the decision of the President, the hearing took place in public in the Human Rights Building, Strasbourg, on 27 August 1997. The Court had held a preparatory meeting beforehand. There appeared before the Court: (a) for the Government Mr D. Bentley, Foreign and Commonwealth Office, Agent, Mr D. Pannick QC, Mr D. Anderson, Counsel, Mr R. Clayton, Home Office, Adviser; (b) for the Commission Mr L. Loucaides, Delegate; (c) for the applicant Mr G. Robertson QC, Counsel, Mr D. Price, Solicitor. The Court heard addresses by Mr Loucaides, Mr Pannick and Mr Robertson.

Following deliberations held on 29 August 1997 the Chamber decided to relinquish jurisdiction forthwith in favour of a Grand Chamber (Rule 51).

The Grand Chamber to be constituted included ex officio Mr Ryssdal, the President of the Court, and Mr Bernhardt, the Vice-President, together with the other members and substitute judges of the original Chamber, the latter being Mrs E. Palm and Mr J. Casadevall (Rule 51 § 2 (a) and (b)). On 30 August 1997 the President, in the presence of the Registrar, drew by lot the names of the nine additional judges needed to complete the Grand Chamber, namely Mr Thór Vilhjálmsson, Mr R. Macdonald, Mr N. Valticos, Mr A.B. Baka, Mr L. Wildhaber, Mr D. Gotchev, Mr U. Lōhmus, Mr E. Levits and Mr P. van Dijk (Rule 51 § 2 (c)).

Having taken note of the agreement of the Agent of the Government and the concurring opinions of the Delegate of the Commission and of the applicant, the Court decided on 25 October 1997 that it was not necessary to hold a further hearing following the relinquishment of jurisdiction by the Chamber (Rule 38, taken together with Rule 51 § 6).

Subsequently, Mr Bernhardt replaced Mr Ryssdal, who was unable to take part in the further consideration of the case, as President of the Grand Chamber (Rule 21 § 5).

AS TO THE FACTS

I. THE circumstances of the case

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 twenty-two weeks and embryo experimentation up to fourteen days.

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.

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. Terry Martin, Conservative. Mr Martin has publicly declared his firm commitment to defending the unborn child. If elected, he would vote to tighten the grounds for abortion to stop abortion on demand. He would vote to stop abortion after 24 weeks, as the law currently allows abortion up to birth for handicapped babies and on other grounds. Would vote to stop the creation and use of human embryos as guinea-pigs for drug testing. Alison Mahon, Labour. Mrs Mahon is a leading pro-abortionist. As an MP she voted to allow abortion up to birth for handicapped babies. She voted for the compulsory enrolment on a published register of doctors with a conscientious objection to abortion despite warnings that it could be used as a blacklist. She also voted to allow human embryos to be used as guinea-pigs in programmes including the testing of drugs and other experiments. Ian Howell, Liberal Democrat. If elected, Mr Howell would vote for the tightening of the grounds for abortion to stop abortion on demand. He would vote to reduce the time-limit to 24 weeks or less, where the law currently allows abortion up to birth for handicapped babies and on other grounds. He would vote to protect human embryos from being used as guinea‑pigs in research programmes. THE SOCIETY FOR THE PROTECTION OF THE UNBORN CHILD” On the reverse side of the leaflet, together with a picture marked “an unborn baby ten weeks after conception”, was printed: “The First Weeks of Life Day 1: Conception – sperm and ovum meet in fertilisation. Genetic make-up complete. Colour of eyes, hair, sex and even build determined. A unique individual is present in the womb’s fallopian tube. Day 12: Has travelled to the womb and implanted there. Day 17: Development of own blood cells. Day 21: Heart starts to beat. This is at least as dramatic as birth, but far less dramatic than fertilisation. Day 26: Foundation of central nervous system established. Day 30: Regular blood flow within closed vascular system. Ears and nose start to develop. Day 42: Skeleton and reflexes present. Liver, kidneys and lungs formed. Responds to touch around the mouth. Day 45: Electrical brainwave patterns can be recorded. Day 56: All organs functioning except the lungs; the baby only has to grow and mature now, just as a child grows into an adult. Day 65: The baby can make a fist and will grasp an object stroking his palm; leaps up and down in the womb with movements co-ordinated. Week 12: Entire surface of the body sensitive to touch. Week 16: Baby is half birth length; the heart pumps 50 pints of blood daily. Week 28: Eyes open. Baby can hear mother’s digestive processes, heartbeat and her voice, as well as sounds outside her body. 9th Month: Birth – just another stage in an already well-advanced process. From the above it is clear that the baby can feel pain at a very early stage. We are, therefore, destroying babies painfully up to 6 months after conception, and in some cases, such as handicap, up to birth.”

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 17–19 below).

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.

In 1979, Mrs Bowman had been convicted of an offence under similar legislation 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.