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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> Arrowsmith v United Kingdom - 7050/75 [1978] ECHR 7 (12 October 1978)
URL: http://www.bailii.org/eu/cases/ECHR/1978/7.html
Cite as: [1978] ECHR 7, 3 EHRR 218, (1981) 3 EHRR 218, (1978) 3 EHRR 218
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- The applicant, Miss Pat Arrowsmith, is a citizen of the United Kingdom, born in 1930 and living in London.
- The facts relating to the present case are generally not in dispute between the parties.
- The applicant is a convinced pacifist. She has campaigned in support of her views and in this connection she was also active in an organisation called the 'British Withdrawal from Ireland Campaign'. She helped with the drafting of a leaflet which was published by this organisation and was intended to be given to soldiers.
- On 22 September 1973 the applicant, and other persons, were found by the police distributing the leaflet in question at an Army centre at Warminster in Wiltshire. The Army centre contained, inter alia, soldiers of battalions which would shortly be posted to Northern Ireland.
- The text of the leaflet is as follows: SOME INFORMATION FOR BRITISH SOLDIERS
- When the group was asked by the police to desist from distributing the leaflets, the applicant's colleagues heeded this warning. The applicant, however, referred to a case at Colchester, another army centre, where she had previously distributed the same leaflets, and said the Director of Public Prosecutions had then ruled that the leaflet was in order.
- Charges were preferred against her under the Incitement to Disaffection Act. When brought before the justices in the Warminster area the applicant learned that the Director of Public Prosecutions was willing to consent to summary trial. This was important in relation to sentence, because the 1934 Act provides, in section 3 (1), as follows:
- On 20 May 1974 the applicant was convicted under sections 1 and 2 of the Incitement to Disaffection Act 1934[5] at the Central Criminal Court, London. She was sentenced to 18 months' imprisonment.
- The conviction was confirmed by the Court of Appeal on 4 December 1974. The Court stated, inter alia [6]:
- The applicant's companions who distributed leaflets with her at Warminster but had stopped doing so at the request of the police were not prosecuted.
- During the period in question the situation which prevailed in Northern Ireland was of utmost gravity. The army, who were deployed in large numbers in the province, were regularly, almost daily, under attack from the I.R.A. The casualty rate, both civilian and military casualties, was still alarmingly large. From 1 February 1973 until the end of that year there were a total of 233 deaths. 940 explosions were counted during the same period.
- There are a number of offences in the United Kingdom created by statute which protect the armed forces and the police from attempts to subvert their allegiance or persuade them into breaches of duty such as the Incitement to Mutiny Act 1797, the Incitement to Disaffection Act 1934, the Police Act 1964 and the Aliens Restriction (Amendment) Act 1919. In addition, the armed forces' Acts (Army Act 1955, Air Force Act 1955 and Naval Discipline Act 1957) create a number of offences of this nature relating to military matters which apply to persons generally and are punishable by the civil courts.
- Under the Incitement to Mutiny Act 1797 it is, inter alia, punishable:
- When the Bill concerning the Incitement to Disaffection Act 1934 was submitted to Parliament there seems to have been some indication at the time that many leaflets likely to cause disaffection among the forces had been printed and distributed but the Government of the day asserted that the Act was not a panic measure but merely a means of bringing persons to trial for endeavouring to seduce the forces without having to rely on the Incitement to Mutiny Act 1797, which necessitated trial on indictment in every case with a maximum penalty of life imprisonment.[9] The Bill aroused controversy which mainly centred upon: (1) the words 'duty or allegiance' used in section 1 instead of 'duty and allegiance' used in the 1797 Act, and (2) the powers of search and seizure. It was stressed in debate by those opposed to the measure that the use of the word 'or' rather than 'and' in section 1 considerably widened the scope of the proscribed conduct, and indeed created an entirely new offence. It was pointed out that a wife who persuaded her soldier husband to overstay his leave by a day or so could not be said to have endeavoured to seduce him from his duty and allegiance to the Sovereign, and would not, therefore, have been guilty of an offence under the 1797 Act, although, so it was argued, she might well be guilty of an offence under the 1934 Act, for she would have endeavoured to seduce him from his duty. It was contended by the Government that the offence created was no wider than that contained in the 1797 Act.
- • — Whether or not there has been an interference with the applicant's right to liberty and security by reason of the existence and the application to her of the Incitement to Disaffection Act 1934, and more particularly, whether or not her arrest and detention on remand was in accordance with Article 5 (1) (c) and her detention after trial was in accordance with Article 5 (1) (a).
- • — Whether or not the distribution of the leaflets concerned in this case can be regarded as an exercise of the applicant's right to freedom of thought, conscience and religion as being the manifestation of a belief and if so, whether the applicant's prosecution and conviction under the Incitement to Disaffection Act 1934 for having distributed the leaflets in question was necessary in a democratic society in the interests of public safety, for the protection of public order and the rights of others. Under Article 10 (2) of the Convention
- • — Whether or not the interference with the applicant's right to freedom of expression was necessary in a democratic society in the interests of national security, territorial integrity or public safety and/or for the prevention of disorder or crime.
- • — Whether or not the applicant's prosecution and conviction constituted a discrimination with regard to the enjoyment of the applicant's right to manifest a belief (Art. 9 (1)) and/or her right to freedom of expression (Art. 10 (1)) on the ground of political or other opinion.
- The applicant considers that the jeopardy flowing from the 'perniciously vague wording' of the Incitement to Disaffection Act 1934 constitutes an interference with her 'right to liberty and security of person' as protected by Article 5 (1) of the Convention.
- The Commission observes generally that it is not competent to examine in the abstract the compatibility of a statute with the provisions of the Convention,[14] but that it can only consider whether the application of the statute in the case complained of involves a violation of the Convention. 'Personal liberty' in Article 5 means primarily freedom from arrest and detention. The right to security of person comprises the guarantee that individuals will be arrested and detained only for the reasons and according to the procedure prescribed by law. This is a guarantee against arbitrariness in the matter of arrest and detention. The applicant was arrested on the basis of legal provisions. The Commission does not find that the law in question is so vague as to allow an arbitrary arrest or detention of people. The act which is made an offence by the law of 1934 consists in endeavouring to seduce any member of the armed forces from his duty or allegiance. The act must be done maliciously and advisedly. This shows— as the interpretation by the courts confirmed— that the offence is circumscribed and restricted by the traditional requirement of penal statutes of bad intent. Therefore, the arrest and detention on the basis of the law does not violate Article 5 as far as it guarantees the security of person.
- In the present case the Commission can only examine under Article 5 (1) whether the applicant's arrest and detention constituted an interference with her right to liberty and security of person which was not justified under any of the sub-paragraphs of this provision.
- The Commission is therefore unanimously of the opinion that the present case does not disclose a breach of Article 5 of the Convention.
- Article 9 of the Convention reads as follows:
- The applicant is undisputedly a convinced pacifist. The respondent Government have accepted her definition of pacifism as being—
- The Commission is of the opinion that pacifism as a philosophy and, in particular, as defined above, falls within the ambit of the right to freedom of thought and conscience. The attitude of pacifism may therefore be seen as a belief ('conviction') protected by Article 9 (1). It remains to be determined whether or not the distribution by the applicant of the leaflets here in question was also protected by Article 9 (1) as being the manifestation of her pacifist belief.
- Article 9 (1) enumerates possible forms of the manifestation of a religion or a belief, namely, worship, teaching, practice and observance ('par le culte, l'enseignement, les pratiques et l'accomplissement des rites'), and the applicant submits that by distributing the leaflets she 'practised' her belief.
- The Commission considers that the term 'practice' as employed in Article 9 (1) does not cover each act which is motivated or influenced by a religion or a belief.
- The leaflet here in question starts with the citation of the statements of two ex-soldiers one of whom says:
- The leaflets were not addressed and distributed to the public in general but to specific soldiers who might shortly be posted to Northern Ireland. The soldiers were, according to the contents of the leaflet, given the advice to go absent without leave, or openly to refuse to be posted to Northern Ireland. This advice was not clearly given in order to further pacifist ideas.
- The Commission finds that the leaflets did not express pacifist views. The Commission considers, therefore, that the applicant, by distributing the leaflets, did not manifest her belief in the sense of Article 9 (1). It follows that her conviction and sentence for the distribution of these leaflets did not in any way interfere with the exercise of her rights under this provision.
- The Commission is therefore unanimously of the opinion that Article 9 (1) of the Convention has not been violated.
- Article 10 of the Convention provides:
- It is undisputed that the applicant's arrest, prosecution and punishment under the Incitement to Disaffection Act 1934 interfered with her right to freedom of expression. Therefore the only question to be determined is whether in the circumstances of the present case this interference was justified under Article 10 (2). The Commission consequently must examine (a) whether the interference was prescribed by law; (b) whether it was made for one or more of the purposes listed in Article 10 (2); and (c) whether the interference was necessary in a democratic society.
- In order to be so justified, the interference complained of must in the first place have been 'prescribed by law'. The basis in law for the applicant's conviction and sentence was uncontestedly the Incitement to Disaffection Act 1934.
- With regard to the application of the Act in her case, the applicant complains of an uncertainty resulting from the allegedly vague wording of the Act, in particular the terms 'maliciously and advisedly' and 'to seduce'.
- The Commission has previously examined the alleged uncertainty of provisions of criminal law under Article 7 of the Convention which enshrines, inter alia, the principle of nullum crimen sine lege.
- The uncertainty of provisions of the law may, as suggested in the present case, also create doubts as to whether a restriction within the meaning of Article 10 (2) is 'prescribed by law'.[17]However, the Commission has already found that the 1934 Act is not so vague as to exclude any predictability as to which act might give rise to prosecution under it. [18] From the wording of the statute it is quite clear that acts which are intended to persuade soldiers illegally to leave their duty will be an offence if the subjective requirements are fulfilled. The applicant was convicted for acts of that sort.
- The Commission consequently concludes that the interference complained of was 'prescribed by law' within the meaning of Article 10 (2).
- According to the respondent Government the Incitement to Disaffection Act 1934 serves the protection of national security, the prevention of disorder and the protection of the rights of others and thus it serves purposes which are under Article 10 (2) justifying restrictions of the right to freedom of expression.
- The Commission accepts that desertion of soldiers can, even in peace-time, create a threat to 'national security' in that it tends to weaken the army's role as an instrument destined in a democratic society to protect it from internal or external threats.
- It follows that the aims pursued by the 1934 Act are consonant with Article 10 (2) of the Convention.
- Next the Commission has to examine whether the application of the 1934 Act in the present case was also in pursuance of legitimate purposes under that provision.
- In this context it is important to note that prosecution under the Act depends on the consent of the Director of Public Prosecutions. Thus the British legislature itself expressly recognised that not every violation of the Act necessarily requires measures to be taken against the offender.
- The applicant submits that her prosecution was unjustified for the purposes enumerated in Article 10 (2) because the leaflet which she distributed only contained the expression of political opinion and information for soldiers who had a right to receive such information.
- The Commission recognises that freedom of expression constitutes one of the essential foundations of a democratic society. It finds, however, that the applicant by distributing the leaflets here in question went further than simply to express a political opinion.
- While it is true that the leaflet contained factual information and political argument, it also contained sentences or paragraphs which, as pointed out by the competent British courts, were to be understood, or could have been interpreted by soldiers, as an encouragement or incitement to disaffection. The leaflet mentioned as possible courses to be taken by soldiers 'going absent without leave' or 'open refusal to be posted to Northern Ireland'. At the end of the text of the leaflet the hope is expressed that 'by one means or another, you will avoid taking part in the killing in Northern Ireland' and thereby soldiers were urged to go absent without leave or to refuse openly to be posted to Northern Ireland although, as is also pointed out, 'such an act could lead to Court-Martial and imprisonment'.
- It is important to draw the line between the expression of political opinions as to the situation in Northern Ireland including the use of the army on the one hand and this case on the other. The applicant was not convicted for statements showing her discontent with British policy in Northern Ireland. She was convicted because in the leaflets distributed she encouraged individual soldiers to disaffection indicating specific means of assistance.
- As regards the justification of prosecution in the applicant's case, the Commission observes that both the Director of Public Prosecutions and the courts dealing with the case attached particular importance to the facts that the leaflet was aimed at and distributed to soldiers who might shortly be posted to Northern Ireland and that the applicant herself had behaved in a way which made it clear that she would go on distributing the leaflets unless strict measures were taken to stop her.
- In all these circumstances, the Commission considers that the applicant's prosecution, conviction and sentence under the 1934 Act served an aim which was consistent with Article 10 (2) of the Convention, namely the protection of national security and the prevention of disorder within the army.
- It remains to be examined whether the applicant's prosecution and conviction, and the sentence imposed on her, were 'necessary' in order to secure this aim.
- As regards the decision to prosecute the applicant, the Commission notes that the Director of Public Prosecutions took into account, when deciding to consent to prosecution, the difficult situation in Northern Ireland and the possible effect of the campaign, which the applicant supported by distributing the leaflets, if this campaign was not stopped.
- The Commission accepts that, in view of the applicant's manifest intention to continue her action unless stopped by prohibitive measures, the decision to prosecute her was necessary for the protection of national security and the prevention of disorder in the army.
- It is true that the competent British authorities did not prosecute or convict some other persons who also distributed leaflets such as the applicant.
- Having in mind that one of the principles characterising a 'democratic society', according to the European Court of Human Rights, is that every 'penny' imposed in this sphere must be proportionate to the legitimate aim pursued',[21] the Commission must finally consider the question of the severity of the sentence. It is of the opinion that the sentence which the applicant finally received and served (seven months' imprisonment), although admittedly severe, was not in the circumstances so clearly out of proportion to the legitimate aims pursued that this severity in itself could render unjustifiable such an interference which the Commission otherwise has held justified. Conclusion
- The Commission is therefore of the opinion by 11 votes against one that the restriction imposed on the applicant's right to freedom of expression was justified under Article 10 (2) of the Convention.
- Article 14 provides:
- The Commission has found that there has been no interference with the applicant's right to manifest her belief (Article 9). It considers that no question of discrimination arises in this respect.
- Given that the arrest, prosecution and conviction of the applicant interfered with her right to freedom of expression, the Commission finds that they were motivated, not by her holding particular opinions, including pacifist views, but by the fact that her action in distributing the leaflets constituted the offence of incitement to disaffection.
- The Commission is therefore of the opinion by 11 votes and one abstention that the present case does not disclose a breach of Article 14 in conjunction with either Article 9 or Article 10 of the Convention.[23]
- For the reasons set out in the report the acts for which the applicant was convicted and sentenced could not be considered exclusively as a manifestation of her pacifist beliefs. I have therefore voted for the conclusion that these acts were not as such protected by Article 9. But I find this question very doubtful, as I shall explain, and might have dissented on this point were it not for the fact that in the present case the acts concerned were in any event protected by, and perhaps can be more adequately considered under, Article 10, as being essentially part of the exercise of freedom of expression, opinion and information. The nature and essence of this case is in my opinion best understood when it is examined under this provision, and the conditions for interference are not substantially different. In my view there has been a breach of Article 10.
- I agree with the Commission when it assumes[24] that in deciding the scope of Article 9 a distinction may be drawn between manifestation and motivation. Otherwise one could claim protection under Article 9 for any act shown to be motivated by the belief. But it is not clear, and this case has not clarified, where this line should be drawn. On the one hand, ordinary crimes such as violence or theft certainly cannot be protected as manifestations of a belief even if it is shown that they were motivated or inspired by it, as it is sometimes argued. On the other hand, one cannot in my opinion generally exclude from Article 9 all acts which are declared unlawful according to the law of the land if they do not necessarily manifest a belief, provided they are clearly motivated by it. On the contrary, as Article 9 (2) shows in setting out a series of further conditions for an interference to be justified, an act cannot be interfered with merely because it has been declared unlawful. I consider that Article 9 must, in principle, be applicable to a great many acts which are not, on their face, necessarily manifesting the underlying or motivating belief, if that is what they genuinely do. This is important where such acts cannot readily be seen as protected by other provisions of the Convention. Such is the case as regards, e.g. religious or conscientious objection to civil or professional duties.
- The opinion of the Commission seems to imply that Article 9 is inapplicable mainly because one might have done what the applicant did without sharing her belief in pacifism. In this respect it relies heavily on the language used in the leaflets, concluding that because this was not particularly of a pacifist nature, the possession and distribution of them was not a manifestation of this belief and therefore falls outside the scope of Article 9.[25] I find this approach too narrow. There is on the facts of this case no possible doubt concerning the connection between the applicant's belief and the acts for which she was punished. If it does not emerge completely from the text of the leaflet, it is clear enough from her other actions and activities. This context does not seem to have been seriously disputed by the prosecution and the courts, and seems indeed to have been accepted by the Government and the Commission in the present proceedings. The fact that the campaign and the leaflets also appealed to those other than pacifists does not create any contradiction, in my opinion, between her belief on the one hand and her participation in the campaign and the language of the leaflets on the other. Her acts were not only consistent with her belief, but genuinely and objectively expressed it when seen in their context. In my view, everyone is entitled to have their acts examined under the Convention in the context of their individual circumstances. It follows that the protection of Article 9 may have to be denied to one person but granted to another for the same acts, whether it is for distribution of the same leaflets, or for other alleged manifestations of a belief as, for instance, in different cases of alleged conscientious objection. And this, in fact, is the line taken by laws on the latter subject when they require an examination of the nature and seriousness of the objectors' motives. Moreover, the line should not be drawn too narrowly so that only certain, perhaps the more traditional, types of manifestation are protected, irrespective of the genuineness of the motivation.
- In one important respect the situation under Article 10 is different from that under Article 9, and also from many other situations where Article 10 is invoked, namely as regards its 'mixed' or 'pure' character. While the offence has been held by the Commission to be sufficiently 'mixed' to bring it outside the protection of Article 9, it had no extraneous elements in relation to Article 10. The applicant was not, for instance, charged with any breach of the peace, unlawful entry, violence or any other such unlawful act which may constitute at the same time an expression of opinion, and for which therefore protection is frequently claimed.
- Moreover, it appears that all the opinions expressed or referred to in the leaflets for which she was punished, and all the information contained in it, could as such be expressed to anyone and also lawfully imparted to the soldiers. What constituted the offence, was the more or less explicit 'incitement', consisting, as the courts held, in an attempt to influence the soldiers to act in breach of their duty and allegiance by avoiding, lawfully or unlawfully, to go to Northern Ireland.
- The aim of influencing others who are themselves responsible for their actions is an essential and legitimate aspect of the exercise of freedom of expression and opinion, in political and other matters. If others are in fact led to accept such beliefs, opinions or ideas or make use of information which has been imparted to them with a view to influencing them, they do so mainly on their own responsibility. Whether the matter is seen under Article 9 or Article 10 or both, the justification and need for punishing those, who merely try to influence others by an otherwise 'pure' exercise of these rights, must be examined in this perspective.
- On the facts of the present case I consider its nature and essence to be that a political offence was seen as a potential threat to public policy, but that the applicant did not in the circumstances actually endanger national security or undermine order in the army, which are the justifications accepted by the Commission, or at most she did so only very indirectly. No link has been shown to the Commission between her own specific acts and actual dangers to these interests. In fact, under the law applied to her by the domestic courts, the prosecution was not required to show any such link, while she on the other hand was not allowed to show that no such dangers actually existed.
- The time and space available do not allow me to go into many details, but I attach some importance to the fact that the Act of 1934 was originally passed and applied in circumstances which could be seen as a threat to political freedom, and that it had not been applied for many years when some prosecutions were again brought under it during the emergency in Northern Ireland. I find it significant that the Commission was much more specific and careful in its opinion when it accepted the interference with certain other leaflets aimed at soldiers who were actually on duty in Northern Ireland during the emergency. Their suppression was seen as[26]—
- The relevant justifications under the Convention offered in this case, and in part accepted by the Commission, seem to have been adduced in retrospect, during the present proceedings. Whatever one may think of the doctrine of the 'margin of appreciation' for the national authorities in the application of restrictions under the Convention— a doctrine which the opinion of the Commission avoids mentioning— it seems to me that it may only be invoked where it is shown that the national authorities have in fact undertaken, at the relevant time, such an appreciation, at least in substance. I have not become convinced that they did so when they decided to prosecute the applicant, and some of the language of the courts seems to suggest the contrary.
- In addition the Commission has not explicitly accepted the punishment as also being necessary to prevent crime, namely such offences as desertion or disobedience to placement in Northern Ireland. But this was, in fact, what the case before the domestic courts was all about. This was the only actual— but still rather remote— threatening effect of her acts, and this was the only incitement she was held guilty of. In my view the Commission should be very reluctant to accept punishment for incitement to commit such or similar political offences as 'necessary in a democratic society'.
- Finally, I consider that the interference by way of long imprisonment, even as it was reduced upon appeal, was out of proportion to the legitimate aim pursued, as required by the European Court of Human Rights in the Handyside case.[27] It is, to my knowledge, quite unusual in a democratic country in our time to punish anyone in this way for non-violent political offences such as those committed by the applicant, and I cannot reconcile it with the requirement of necessary in the present case. It leaves me with the unfortunate impression that in this case, because of the serious and violent conflict in Northern Ireland, the authorities over-reacted.
- That tolerance for the views of dissidents which we expect of other countries should not be abandoned in Western Europe even in times of crisis. Although the applicant's action remotely threatened public policy, this is not in my opinion a sufficient justification for interference under the system of the European Convention whose claim to credibility it is very important to preserve in the world-wide debate on human rights.
- I cannot share the Commission's approach to its examination of both the Article 9 and Article 10 questions presented in this application. In my opinion both provisions have been breached in relation to the facts of the present case.
- In relation to Article 9, if it is accepted that practical action is an important part of the philosophy of pacifism, it seems difficult not to admit that the applicant was prosecuted for her pacifist belief since the distribution of the leaflet was not merely an extension of her belief but an integral part of it. In this respect I must disagree with the Commission's examination of Article 9 finding it too narrow, firstly, because it reaches its conclusion by leaving aside a number of facts relevant to this case and, secondly, because its analysis of the contents of the leaflet is over-selective in its choice of the decisive elements.
- In determining whether the applicant's distribution of the leaflet constitutes the manifestation of a belief in practice, it is necessary to consider not only the contents of the leaflet, but other factual elements connected to the present case which validate the authenticity of the applicant's pacifist views.
- Describing the factual basis of the applicant's complaint, the Commission states in its report[29]:
- However in determining the nature and content of those views it is essential to take into account the evidence given by Miss Bernadette Devlin on the applicant's behalf (which is not disputed) that appears in the short transcript of the applicant's trial. From this, it appears that she had been with the applicant in Northern Ireland during discussions with both wings of the I.R.A. and that the applicant was saying to the people of these organisations that they ought to lay down their arms and campaign through peaceful demonstration, and that she impressed upon them that they should abandon the I.R.A. and work through peaceful organisations.
- If, on the one hand, the leaflet shows that the applicant opposes the political role of the army in Northern Ireland, her appeal to both wings of the I.R.A. to lay down their arms, on the other hand, reveals the aim of that opposition, namely to have the fighting stopped and the problems solved through peaceful negotiations. There could not be a clearer example of pacifist action than these appeals to both parties to stop fighting.
- If the leaflet, taking into consideration the known pacifist beliefs of the applicant and the facts referred to above, is analysed in this way, it leads to the conclusion that both its content and its distribution represents the manifestation of a pacifist belief within the meaning of Article 9 (1).
- Since I also consider there to have been an interference with her right to freedom of expression, particularly as it concerns her right to impart information and ideas, the remaining issues of justification under both Article 9 and Article 10 converge.[31] The issue is thus whether such an interference with the applicant's rights can be justified as being necessary in a democratic society.
- In reaching this conclusion, I am influenced by the importance attached by the Court in Handyside v. U.K. [32] to the value of freedom of expression in a democratic society. It can be derived from the Court's 'broadminded' approach that ordinary individuals are entitled to try to influence soldiers, even young soldiers bound for Northern Ireland, who, as active participants in the democratic system, should not be considered as blocked off from the marketplace of ideas, even where those ideas touch on the ethics of their professional role.
- The Government argues that public safety and order can only be secured by loyal and disciplined armed forces, and that the peacekeeping role of the army can only be accomplished if members of the army obey orders. It is difficult to see why this argument should be opposable to the applicant. She has submitted that she does not challenge the presence of troops in Northern Ireland per se under the Convention. She raises the question of the conduct of troops posted there. Her position is that soldiers in Northern Ireland have been ordered to commit acts which are in violation of international law. Such a position, concerning at least some soldiers posted in Northern Ireland, is equally sustained by the Court in its decision on the case of Ireland v. the United Kingdom. [33] Is it 'necessary' to restrict a person who tries to prevent violations of law?
- I further consider that at a time in our history, when so many are prepared either to advocate the use of violence to achieve political ends or adopt violent means themselves, a large measure of protection should be afforded to those who seek to express their voice of disapproval in moderate non-violent terms. It must be clear that there are alternatives to violence in a society that claims to be democratic. If freedom of expression and freedom to manifest beliefs in practice are to be worthwhile values then ideas which are provocative and anti-establishment must be given a wide berth unless a case is made out that a real threat is posed. This is not the case here. It might have been had the campaign been more widespread or where there were signs that army morale was being affected or if the leaflets carried threats. However, these factors are not present. In essence this application concerns an ineffectual troop of leafleteers.
- Article 10 (2) makes it clear that freedom of expression carries with it duties and responsibilities. I find that these have been respected in the moderate and factual tone used in the leaflets. It is true that the leaflet encouraged soldiers to commit crimes in the sense that if they were persuaded by the leaflet to desert or to disobey orders they would be guilty of criminal offences. However, in addition to the point that in the present case this was an unlikely event, I would agree with Mr. Opsahl that the aim of influencing others who are themselves responsible for their actions is a legitimate feature of the exercise of freedom of expression and that those who are persuaded to accept the views expressed must carry their own burden of responsibility.
Please note Press Release of 12/06/1979
1. Pacifism. Freedom of thought and conscience Art. 9 (1)). Pacifism as a philosophy is a belief within the scope of Article 9 (1) and is therefore protected by the right to freedom of thought and conscience [69]; but mere motivation or influence by a belief is not itself sufficient to secure the protection of Article 9 (1); the material action must actually express that belief [71].
2. Freedom of expression. 'Necessary' interference (Art. 10 (2)). The concept of necessity in Article 10 (2) as a justification for restrictions, penalties, etc. on the freedom of expression implies a pressing social need which may include the 'clear and present danger' test and must be assessed in the light of the particular circumstances of the case [95].
Representation
• N. S. Rodley, Legal Adviser, Amnesty International, and H. Levenson, National Council for Civil Liberties, London, for the applicant.
• The United Kingdom Government submitted written observations.
The following cases are referred to in the report:
• 1. Engel v. the Netherlands (1976), Series A, No. 22; 1 EHRR 647.
• 2. Handyside v. United Kingdom (1976), Series A, No. 24; 1 EHRR 737.
• 3. Ireland v. United Kingdom (1978), Series A, No. 25; 2 EHRR 25.
• 4. Klass v. Federal Republic of Germany (1978), Series A, No. 28; 2 EHRR 214.
• 5. R. v. Arrowsmith [1975] Q.B. 678, [1975] 2 W.L.R. 484, [1975] 1 All E.R. 463.
• 6. Times Newspapers Ltd. v. United Kingdom, Report of the Commission, Series B, No. 28.
• 7. X. v. United Kingdom (Application No. 6084/73), 1975 3 D. & R. 62.
REPORT OF THE COMMISSION
Introduction
The substance of the application
On 20 May 1974 the applicant was convicted under sections 1 and 2 of the Incitement to Disaffection Act 1934 [3] at the Central Criminal Court, London, mainly on the ground that she had distributed leaflets to troops stationed at an army camp endeavouring to seduce them from their duty or allegiance in relation to service in Northern Ireland. She was sentenced to 18 months' imprisonment. The conviction was confirmed by the Court of Appeal on 4 December 1974. [4] However, the Court of Appeal granted leave to appeal against sentence and reduced the term of imprisonment so as to allow for the applicant's immediate release. By then, she had been under detention since 14 March 1974.
The applicant submits that section 1 of the 1934 Act is so vague that it threatens the right to liberty and security of person as protected by Article 5 of the Convention.
She also considers that her conviction and sentence interfered with her right to manifest her pacifist belief as guaranteed by Article 9 (1) of the Convention and her right to freedom of expression as guaranteed by Article 10 (1) of the Convention. This interference was not justified under paragraphs (2) of the said Articles. Furthermore she alleges a violation of Article 14 in connection with Articles 9 and 10 of the Convention contending that the Incitement to Disaffection Act of necessary discriminates against persons holding pacifist opinions.
The Facts
The factual basis of the applicant's complaint
I Kevin Cadwallader came to Sweden for asylum because of Northern Ireland. I do not think that what is happening there is very good. As I see it, there must be a simpler way of ending the fight without more people being killed. So I have left rather than fight in something I think is wrong.
(British Ex-Soldier Now In Sweden)
I'm not against being a soldier. I would be willing to fight to defend this country against an invader— I'd be willing to fight for a cause I could believe in. But what is happening in Ireland is all wrong. Some of my friends have been killed there. I keep asking myself— what did they die for?
(British Ex-Soldier Now In England)
* * *
We are aware that there are British soldiers who are leaving the army, or who want to, because of British policy in Northern Ireland. We are glad about this and hope many more will do so. We have therefore compiled this fact-sheet giving information about various methods of quitting the British armed forces, hoping it may prove useful.
* * *
GOING ABSENT WITHOUT LEAVE
1. SWEDEN— Special arrangements have been made to welcome British soldiers who go A.W.O.L. to Sweden. At least 12 have already done so.
Legal Advice Obtainable From: (a) Hans Göran Franck, Kungsgatan 24, Stockholm (tel. 200550 or 200600); (b) Bengt Söderström— same address as Franck (office tel. 102502, home tel. 332013); (c) Svenska Flytingradet, Drottningsgatan 16, Stockholm (Tues. 6– 8 pm, tel. 210732).
Social Help Obtainable From: Desmond Carragher, c/o KFUK/KFUM, Birger Jarlsgatan 33 (2 tr), Stockholm (tel. 206729).
N.B. To be considered for asylum in Sweden, a soldier must have been or be about to be, posted to Northern Ireland. He should bring his I.D. card and enter via Stockholm. After 10 days (to establish residence) he should go to the police accompanied by a friend and register for POLITICAL asylum. After registering, which takes a couple of hours, he can go to the Swedish social bureau who will (a) get him a place to stay; (b) give him money to live on; (c) help him to enrol in Swedish classes. This help is available immediately after registering. There is no need to wait for the final decision about staying before obtaining these benefits.
2. EIRE— Eire has proved to be a dangerous destination in some cases. A.W.O.L. soldiers are advised NOT to go there.
3. BRITAIN— Some A.W.O.L. soldiers are having difficulties over employment (no insurance cards) and accommodation, and have to keep moving in order to avoid arrest. Those considering going A.W.O.L. in Britain should therefore plan ahead very carefully.
4. OTHER COUNTRIES— Other countries are not yet, as far as we know, offering sanctuary. However, as condemnation of the British Government's actions in Northern Ireland becomes more widespread, people in other countries may wish to help men who avoid taking part.
(Soldiers who intend to go A.W.O.L. overseas may like to compare their situation with that of US servicemen who opposed the Vietnam war. An interesting book on this subject is They Love it but Leave it by D. Prasad— obtainable from Houseman's Bookshop, 5 Caledonian Road, London N.1.— price 30p).
* * *
CONSCIENTIOUS OBJECTION
A serviceman is entitled to apply for a discharge on the grounds of conscientious objection if, since enlisting, he has developed a moral or religious objection to taking part in any war. Objections on purely political grounds to specific conflicts (e.g. that in Northern Ireland) are not usually treated sympathetically.
Those who intend to apply for a discharge on conscientious grounds, or who wish to know more about this possibility, are advised to contact the Central Board for Conscientious Objectors Continuing Committee, 6 Endsleigh St., London W.C.1. This body can give personal advice on how to proceed, and offer support throughout what can be a difficult and lengthy process.
DISCHARGE ON OTHER GROUNDS
If a serviceman has served three years (in some cases four), and has not been notified that he is about to be sent overseas, he may be able to buy himself out. He should ask permission to do this. Permission may be granted, delayed or withheld at the discretion of the Ministry of Defence. The price varies between £20 and £150 for boy-soldiers, and between £150 and £250 for adults. A soldier under 18 can choose to leave within 6 months of enlisting on payment of £20, or, if he enlisted when under 17½, without paying anything.
The basic principle governing discharge on COMPASSIONATE grounds is that of being needed at home— the family being unable to manage on their own.
In the near future, it is hoped to open a new Servicemen's Advisory Bureau in London to deal with enquiries about all LEGAL ways of leaving the forces. Telephone 01-387 5501 for details about this service. Meanwhile the National Council for Civil Liberties (186 Kings Cross Road, London W.C.1, tel. 01-278 4575) may be able to give advice.
N.B. The army may discharge a soldier on health or sexual grounds.
OPEN REFUSAL TO BE POSTED TO NORTHERN IRELAND
A soldier who publicly stated that he refused to serve in Northern Ireland, whatever the consequences, would be taking a courageous stand. He would be setting an example to other soldiers: strengthening their resolve to resist the Government's disastrous policy. Better still, if a group of soldiers made this announcement simultaneously it would make a great impact on public opinion, both inside and outside the army. Such an act could lead to Court-Martial and imprisonment. But soldiers who believe, as we do, that it is wrong for British troops to be in Northern Ireland are asked to consider whether it is better to be killed for a cause you do not believe in or to be imprisoned for refusing to take part in the conflict.
All soldiers who intend to refuse to be posted to Northern Ireland are asked to inform the BRITISH WITHDRAWAL FROM NORTHERN IRELAND CAMPAIGN, so that the brave actions can receive as much publicity and have as much effect as possible.
WE WHO ARE DISTRIBUTING THIS FACT-SHEET TO YOU HOPE THAT, BY ONE MEANS OR ANOTHER, YOU WILL AVOID TAKING PART IN THE KILLING IN NORTHERN IRELAND.
* * *
Published by: The British Withdrawal from Northern Ireland Campaign, 3 Caledonian Road, London N.1.
With this reasoning she went on distributing the leaflet and was arrested for conduct likely to cause a breach of the peace. She was released on bail and re-arrested on 14 March 1974.
A person guilty of an offence under this Act shall be liable, on conviction on indictment to imprisonment for a term not exceeding two years or to a fine not exceeding two hundred pounds, or on summary conviction to imprisonment for a term not exceeding four months or to a fine not exceeding twenty pounds, or (whether on conviction on indictment or on summary conviction) to both such imprisonment and fine.
The applicant elected to be tried by a jury.
This leaflet is the clearest incitement to mutiny and to desertion. As such, it is a most mischievous document. It is not only mischievous but it is wicked. This court is not concerned in any way with the political background against which this leaflet was distributed. What it is concerned with is the likely effects on young soldiers aged 18, 19 or 20, some of whom may be immature emotionally and of limited political understanding. It is particularly concerned about young soldiers who either come from Ireland or who have family connections with Ireland; there are probably a large number of them in the British army. These young soldiers are encouraged to desert on learning of a posting to Northern Ireland and to mutiny. If they mutiny, they are liable to be sentenced by court-martial to a very long term of imprisonment, and if they desert, they must expect to get a sentence of at least 12 months' detention. For mature women like this appellant to go round military establishments distributing leaflets of this kind amounts to a bad case of seducing soldiers from both their duty and allegiance.
The court also dealt with the question as to whether the applicant was entitled to rely on the defence of lawful excuse, inter alia, in view of the fact that following the distribution of leaflets at Colchester no indictment was brought against her under the 1934 Act. In fact, after the Colchester incident, the Director of Public Prosecutions had refused to consent to proceedings against the applicant under the 1934 Act[7] and the applicant's then solicitor had been so informed without indications of the reasons for this refusal.
The Court of Appeal stated that the words 'lawful excuse' did not appear in section 1 of the 1934 Act and that it was difficult to conceive how anyone could have a lawful excuse to incite soldiers to desert or to mutiny.
The court admitted though that a mistake as to the law might be relevant in relation to sentence. In this respect it stated:
What effect ought this inaction[8] have on sentence? It is difficult to believe that this well-educated and intelligent appellant did not appreciate what she was doing. She must have known that she was inciting mutiny and desertion. The story which she put forward at the trial, that she was merely giving information to those in the services who were already disaffected, was an insult to the intelligence of the jury who were trying her. Nevertheless, as a result of the Director of Public Prosecutions' decision, she may have thought that she could continue, with immunity, doing what she had done.
The court emphasised that had there not been the complication arising from the Director of Public Prosecution's decision, the 18 months' prison sentence would in its opinion have been justified, but in the particular circumstances it considered it appropriate to quash the sentence and substitute it by one which allowed for the applicant's immediate release.
In 1975 13 persons were prosecuted together in a trial involving a number of alleged offences under the 1934 Act. Only one charge, against one Mrs. W., related to a leaflet of the kind here in question. The jury acquitted all defendants of all charges under the 1934 Act.
The situation in Northern Ireland in 1973 and 1974
The law relating to offences of subverting the forces and the importance of the Incitement to Disaffection Act 1934
maliciously and advisedly [to] endeavour to seduce any person or persons serving in Her Majesty's force by sea or land from his or their duty and allegiance to Her Majesty.
There have been no prosecutions under this Act for many years.
The 1934 Act has been little used since its introduction and between 1956 and 1974 there were, indeed, only four prosecutions, two in 1971, one in 1973 and one in 1974; all were concerned with the possession or distribution of leaflets designed to seduce soldiers from their duty or allegiance to the Queen in relation to service in Northern Ireland.[10]
The 1934 Act has recently been under consideration by the Law Commission, a statutory body established 'for the purpose of promoting the reform of the law'.[11] In its Working Paper No. 72 the Law Commission states that it does not seek views on the wider issue of whether there is need to retain the 1934 Act. Referring to the dispute as to whether the Act is compatible with Article 10 (1) of the European Convention on Human Rights, the Law Commission states in its Working Paper:
Subject to the provisions of the Convention, the extent to which freedom of speech and freedom of action need to be curtailed in the interests of national security is essentially a matter for Parliament. We note that since 1817— the year the Incitement to Mutiny Act 1797 was revived after its lapse in 1805— there has been on the statute book the very serious offence of maliciously and advisedly endeavouring to seduce a member of the forces from his duty and allegiance. Further, in 1934 after a very full debate the Incitement to Disaffection Act was enacted. These facts may be taken as some indication of Parliament's opinion as to the need for such legislation and we do not now seek views on the principle of whether such legislation is required in the interests of national security or public safety for the prevention of disorder or crime.[12]
The Law Commission suggests only that if the Incitement to Disaffection Act is to be retained, to replace the words 'maliciously and advisedly' in section 1 by words more in accord with modern usage.[13]
Points at Issue
The general points at issue are as follows:
Under Article 5 of the Convention
Under Article 9 of the Convention
Under Article 14 read in conjunction with Article 9 and/or Article 10 of the Convention
Opinion of the Commission
As to Article 5 of the Convention
Article 5 (1) provides:,
Everyone has the right to liberty and security of person. No-one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: • (a) the lawful detention of a person after conviction by a competent court; …
• (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; …
The Commission further observes that an alleged uncertainty of the law may also give rise to issues under Article 7, or under those Convention rights which may be subject to limitations which are 'prescribed by law' as, e.g. the right to freedom of expression.[15]
As it is not contested that the applicant's arrests were effected for the purpose of bringing her before the competent legal authority on reasonable suspicion of having committed an offence, her arrests and detention before the trial were justified under Article 5 (1) (c). As it is further not contested that the applicant was convicted by a competent court in accordance with a procedure prescribed by law, it follows that her detention after conviction was justified under Article 5 (1) (a) of the Convention.
Conclusion
As to Article 9 of the Convention
1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.
The commitment, in both theory and practice, to the philosophy of securing one's political or other objectives without resort to the threat or use of force against another human being under any circumstances, even in response to the threat of or use of force.
It is true that public declarations proclaiming generally the idea of pacifism and urging the acceptance of a commitment to non-violence may be considered as a normal and recognised manifestation of pacifist belief. However, when the actions of individuals do not actually express the belief concerned they cannot be considered to be as such protected by Article 9 (1), even when they are motivated or influenced by it.
I'm not against being a soldier. I would be willing to fight to defend this country against an invader— I'd be willing to fight for a cause I could believe in. But what is happening in Ireland is all wrong.
Although this is an individual opinion of a person who is not necessarily linked to the organisation which edited the leaflet its citation nevertheless indicates that the authors consider it recommendable. It can therefore not be found that the leaflet conveys the idea that one should under no circumstances, even not in response to the threat of or the use of force, secure one's political or other objectives by violent means. It only follows from the contents of the leaflet that its authors were opposed to British policy in Northern Ireland. 73. This view is not only expressed in the statement of the ex-soldier but also by the authors of the leaflet who comment the citation as follows:
We are aware that there are British soldiers who are leaving the army, or who want to, because of British policy in Northern Ireland. We are glad about this and hope many more will do so.
And under the heading: 'Open refusal to be posted to Northern Ireland' the following passages:
A soldier who publicly stated that he refused to serve in Northern Ireland … would be setting an example to other soldiers: strengthening their resolve to resist the Government's disastrous policy.
Further:
But soldiers who believe, as we do, that it is wrong for British troops to be in Northern Ireland are asked to consider whether it is better to be killed for a cause you do not believe in or to be imprisoned for refusing to take part in the conflict.
Conclusion
As to Article 10 of the Convention
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.
Was the restriction and penalty 'prescribed by law'?
The Commission refers in this respect to its decision on the admissibility of Handyside v. United Kingdom [16] where it found that the requirement of certainty is satisfied when it is possible to determine from the relevant statutory provision what act or omission is subject to criminal liability, even if such determination derives from the courts' interpretation of the provision concerned.
Was the restriction and penalty in pursuance of one or more of the purposes of Article 10 (2) of the Convention?
THE AIM OF THE 1934 ACT
The concept of 'order' as envisaged by Article 10 (2) covers, according to the Judgment of the European Court of Human Rights in Engel v. the Netherlands, [19] the order that must prevail within the confines of a specific social group … for example when, as in the case of the armed forces, disorder in that group can have repercussions on order in society as a whole'. The Commission accepts that the maintenance of 'order' within the armed forces requires strict measures to prevent desertion.
THE PARTICULAR MEASURE TAKEN AGAINST THE APPLICANT
Was the interference and penalty necessary in a democratic society?
The applicant has suggested that the 'clear and present danger doctrine', as developed by the United States Supreme Court, be applied.
The notion 'necessary' implies a 'pressing social need' which may include the clear and present danger test and must be assessed in the light of the circumstances of a given case.[20]
However, the Commission notes in this respect that the applicant continued to distribute the leaflet despite warnings, while her companions at Warminster desisted from doing so and were not being prosecuted. These cases were consequently less serious than the applicant's case. The acquittal in a further case (concerning Mrs. W. and others) concerned, according to the Government's undisputed statements, a watered-down version of the leaflet and does not prove that the applicant's conviction was not a response to a real necessity.
As to Article 14 read together with Article 9 and/or Article 10 of the Convention
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
Further, the Commission considers that the difference of treatment of the applicant and of persons, engaged in distribution of the leaflets, described above,[22] was based on factual grounds and so objectively justified.
The applicant has not suggested that a similar action, if carried out by other persons who were motivated by other reasons, would not entail the same consequences.
Conclusion
Separate Opinion, in part dissenting, of Mr. Opsahl
necessary in the interests of public safety when the present state of the public emergency in Northern Ireland is taken into account, in so far as the letter urges disobedience to orders to fire even though these could be necessary in self-defence or the control of violence. In the present case the Commission has not attempted to link the need for punishment to the situation in similarly direct and narrow terms, and there was no incitement to disobey orders under actual service in Northern Ireland.
Dissenting Opinion of Mr. Klecker
The applicant is a convinced pacifist. She has campaigned in support of her views and in this connection she was also active in an organisation called the 'British Withdrawal from Ireland Campaign'. She helped with the drafting of a leaflet which was published by this organisation and was intended to be given to soldiers.
It is thus not in dispute that the distribution of the leaflet in question represented action in pursuance of her views.
The Commission's approach to this question is based on an examination of the leaflet in question and a determination that in effect it was not the manifestation of a pacifist belief but the manifestation of 'political' opposition to the use of the British army in Northern Ireland. I agree with the view that not every act which is motivated by a belief is protected under Article 9. Clearly there has to be a strong element of harmony between the motivation and the act under scrutiny. However, I cannot accept the approach used by the Commission to arrive at its conclusion. It isolates several unrepresentative paragraphs and extrapolates from them a conclusion which is the product of false emphasis. It seems to me to be an elementary proposition that in assessing whether the leaflet is a manifestation of a pacifist belief it should be read as a whole and not only in part. If such a test is observed several observations can be made concerning its contents.
(a) The basic purpose of the leaflet is clearly stated:
We who are distributing this fact-sheet to you hope that, by one means or another, you will avoid taking part in the killing in Northern Ireland.
(b) The means chosen by the authors (of whom the applicant was one) was to inform soldiers as to the practical steps they could take if they wanted to go absent without leave; if they objected on grounds of conscience; if they sought legal ways of leaving the service or if they openly refused to be posted to Northern Ireland. The leaflet was referred to as a 'fact-sheet' giving information about various methods of quitting the British armed forces.
(c) The fact-sheet contained a quotation from a soldier who was not expressing pacifist sentiments stricto sensu ('I'd be willing to fight for a cause I could believe in').
(d) The pamphlet could be considered as a passive form of encouragement or advocacy of the idea that soldiers should leave the army either by going absent without leave or refusing to serve in Northern Ireland. It is passive encouragement in the sense that at no point does it openly advocate in strong terms that soldiers should desert or disobey orders. Encouragement is expressed in the following terms:
We are glad about this [soldiers leaving the army because of policy in Northern Ireland] and hope many more will do so.
A soldier who publicly stated that he refused to serve in Northern Ireland … would be taking a courageous stand.
Soldiers who believe, as we do, that it is wrong for British troops to be in Northern Ireland are asked to consider whether it is better to be killed for a cause you do not believe in or to be imprisoned for refusing to take part in the conflict.
We who are distributing this fact-sheet to you hope that, by one means or another, you will avoid taking part in the killing in Northern Ireland.
(e) The tone of the pamphlet is moderate throughout. Its most striking characteristic is that it conveys factual information of the sort to be found in many leaflets offering advice. Its language is neither threatening nor abusive nor insulting.
I would emphasise the following factors in this context:
(a) The pamphlet is not meant to be a tract about pacifism as a philosophy and, therefore, the absence of statements about pacifism should not be decisive. It is against British policy in Northern Ireland and the use of the army there. This is perfectly consistent with a pacifist belief. In essence, it is a call to British soldiers to lay down their arms in relation to Northern Ireland.
(b) The hallmarks in the leaflet itself of a pacifist motivation are firstly its moderate and factual tone and secondly the fact that it is addressed to individual soldiers. In this respect it is instructive to compare the text of this pamphlet with that in Application No. 6084/73.[30]
(c) The 'non-pacifist' quotation from a soldier is not given sufficient prominence to pollute the basic character of the rest of the text. Is it not, in any event, legitimate to use non-pacifist views in this way to further a pacifist end?
I am, therefore, of the opinion that the prosecution, conviction and sentence of the applicant for the distribution of the pamphlet constitutes an interference with her right to manifest her belief in practice.
The question which is raised here concerns the nature and scope of the threat to national security and to the other heads of national interest referred to. In this regard it is notable that the trial judge was not concerned with this factual question, but rather with the narrower question of whether the leaflet could be regarded as an 'incitement'. It does appear, however, that the Director of Public Prosecutions considered the nature of the threat posed to the army's peace-keeping role in Northern Ireland by the applicant's persistence in distributing her leaflets and concluded that it justified prosecution. But this alone cannot be enough. It must be supported by evidence of the threat posed which goes beyond mere official belief. Ideas which shock and disturb official values may create sincerely perceived but unwarranted fears of imminent danger arising unless restrictive measures are applied. I cannot consider that, in the present case, such evidence has been produced that would convince an ordinary person that national security would be endangered or crime engendered by the applicant and her small band of supporters distributing moderately pitched leaflets to soldiers about to be sent to Northern Ireland. Regrettably this was not the issue that was considered by the trial jury.
Nor can I consider, on the basis of the facts presented by the Government, that an institution as solidly rooted in discipline as the army would be seriously undermined in respect of its Northern Ireland operations by leafleteers of this sort, any more than it would by the regular and acceptable features in the mass-media critical of the army role in Northern Ireland.
Note 1 Mr. Klecker was present when the final votes were taken; see footnote 26, infra. [Back] Note 2 The summary of the parties' submissions (paras. 22– 58) is not reproduced here.— Ed. [Back] Note 3 Hereinafter also referred to as 'the 1934 Act'. [Back] Note 4 R. v. Arrowsmith[1975] Q.B. 678, [1975] 2 W.L.R. 484, [1975] 1 All E.R. 463 . [Back] Note 5 S. 1 reads: 'If any person maliciously and advisedly endeavours to seduce any member of Her Majesty's forces from his duty or allegiance to Her Majesty, he shall be guilty of an offence under this Act.' s. 2 (1) reads: 'If any person, with intent to commit or to aid, abet, counsel or procure the commission of an offence under section 1 of this Act, has in his possession or under his control any document of such a nature that the dissemination of copies thereof among members of Her Majesty's forces would constitute such an offence, he shall be guilty of an offence under this Act.' [Back] Note 6 See [1975] 1 All E.R. at p. 471. [Back] Note 7 S. 3 (2) provides: 'No prosecution in England under this Act shall take place without the consent of the Director of Public Prosecutions'. [Back] Note 8 The court referred to the refusal of the Director of Public Prosecutions to consent to an indictment against the applicant after the Colchester incident. [Back] Note 9 See Law Commission, Working Paper No. 72, p. 51, paras. 82, 83. [Back] Note 10 See Law Commission, op. cit., p. 52, para. 84. [Back] Note 11 Law Commissions Act 1965, s. 1 (1). [Back] Note 12 Para. 93, p. 58. [Back]
Note 14 Klass v. Germany (1978), 2 EHRR 214, 227, para. 33. [Back] Note 15 See paras. 79– 83, infra. [Back] Note 16 Application No. 5493/72, 45 C.D. 23, 48, 49. [Back] Note 17 Cf. the Commission's report in Times Newspapers Ltd. v. United Kingdom (Series B, No. 28), paras. 200– 205. [Back] Note 18 See para. 64, supra. [Back] Note 19 (1976), 1 EHRR 647, para. 98. [Back] Note 20 Cf. Handyside v. U.K. (1976), 1 EHRR 737, para. 48. [Back] Note 21 Ibid., para. 49. [Back]
Note 23 The Committee of Ministers, agreeing with the Commission's Opinion, decided that there had been no violation of the Convention in the case: Res. DH (79) 4 of 12 June 1979.— Ed. [Back] Note 24 See para. 71, supra. [Back] Note 25 See paras. 72– 75, supra. [Back] Note 26 X. v. United Kingdom (Application No. 6804/73), 3 D. & R. 62, 65. [Back] Note 27 See para. 99, supra. [Back] Note 28 Mr. Klecker was not present when the final votes were taken but the Commission decided under rule 52 (3) of its Rules of Procedure, that he should be entitled to express his separate opinion in the report. [Back] Note 29 See para. 10, supra. [Back] Note 30 X. v. United Kingdom,3 D. & R. 562. [Back] Note 31 This examination of the issues sets to one side the possibility that the test of 'justification' in respect of freedom of expression might be more rigorous than in respect of freedom of thought, conscience and religion. [Back]
PAT ARROWSMITH AGAINST THE UNITED KINGDOM - 7050/75 12/06/1979 Press Releases
Res-32 Notice No violation Committee of Ministers The Committee of Ministers, under the terms of Article 32 (art. 32) of
the Convention for the Protection of Human Rights and Fundamental
Freedoms (hereinafter referred to as the "Convention"); Having regard to the report drawn up by the European Commission of
Human Rights in accordance with Article 31 (art. 31) of the Convention
relating to the application lodged by Miss Pat Arrowsmith against the
United Kingdom (No. 7050/75); Whereas on 5 December 1978 the Commission transmitted the said report
to the Committee of Ministers and whereas the period of three months
provided for in Article 32, paragraph 1 (art. 32-1), of the Convention
has elapsed without the case having been brought before the European
Court of Human Rights, in pursuance of Article 48 (art. 48) of the
Convention; Whereas in her application introduced on 2 June 1975, the applicant
complained that her conviction and sentence under Sections 1 and 2 of
the Incitement to Disaffection Act 1934 interfered with her right to
liberty contrary to Article 5 (art. 5) of the Convention, her right to
manifest her pacifist beliefs contrary to Article 9 (art. 9), her
right to freedom of expression contrary to Article 10 (art. 10), and
that the 1934 Act discriminated against persons holding pacifist
opinions, contrary to Article 14 read in conjunction with Articles 9
and 10 (art. 14+9, art. 14+10) of the Convention; Whereas the Commission, after having declared the application
admissible on 16 May 1977, expressed in its report, adopted on 12
October 1978, unanimously the opinion that Articles 5 and 9 (art. 5,
art. 9) of the Convention had not been violated, by 11 votes to 1 that
the restriction imposed on the applicant's right to freedom of
expression was justified under Article 10, paragraph 2 (art. 10-2), of
the Convention and by 11 votes with 1 abstention that the case did not
disclose a breach of Article 14 in conjunction with either Article 9
or 10 (art. 14+9, art. 14+10) of the Convention; Agreeing with the opinion expressed by the Commission in accordance
with Article 31, paragraph 1 (art. 31-1), of the Convention; Voting in accordance with the provisions of Article 32, paragraph 1
(art. 32-1), of the Convention, Decides that in this case there was no violation of the Convention for
the Protection of Human Rights and Fundamental Freedoms.