In the Handyside case,
The European Court of Human Rights, taking its decision in plenary
session in application of Rule 48 of the Rules of Court and composed
of the following judges:
Mr. G. BALLADORE PALLIERI, President,
Mr. H. MOSLER,
Mr. M. ZEKIA,
Mr. G. WIARDA,
Mrs. H. PEDERSEN,
Mr. THÓR VILHJÁLMSSON
Mr. S. PETRÉN,
Mr. R. RYSSDAL,
Mr. A. BOZER,
Mr. W. GANSHOF VAN DER MEERSCH,
Sir Gerald FITZMAURICE,
Mrs. D. BINDSCHEDLER-ROBERT,
Mr. D. EVRIGENIS,
Mr. H. DELVAUX,
and also Mr. M.-A. EISSEN, Registrar, and Mr. H. PETZOLD, Deputy
Registrar,
Having deliberated in private on 8 and 9 June and from
2 to 4 November 1976,
Delivers the following judgment, which was adopted on the
last-mentioned date:
PROCEDURE
1. The Handyside case was referred to the Court by the European
Commission of Human Rights (hereinafter referred to as "the
Commission"). The case originated in an application against the
United Kingdom of Great Britain and Northern Ireland lodged with the
Commission on 13 April 1972 under Article 25 (art. 25) of the
Convention for the Protection of Human Rights and Fundamental Freedoms
(hereinafter referred to as "the Convention") by a United Kingdom
citizen, Mr. Richard Handyside.
2. The Commission's request, to which was attached the report
provided for under Article 31 (art. 31) of the Convention, was lodged
with the registry of the Court on 12 January 1976, within the period
of three months laid down by Articles 32 para. 1 and 47 (art. 32-1,
art. 47). The request referred to Articles 44 and 48 (art. 44,
art. 48) and to the declaration made by the United Kingdom recognising
the compulsory jurisdiction of the Court (Article 46) (art. 46).
The purpose of the Commission's request is to obtain a decision from
the Court as to whether or not the facts of the case disclose a breach
by the respondent State of its obligations under Article 10
of the Convention and Article 1 of the Protocol (art. 10, P1-1)
of 20 March 1952 (hereinafter referred to as "Protocol No. 1").
3. On 20 January 1976, the President of the Court drew by lot, in the
presence of the Registrar, the names of five of the seven judges
called upon to sit as members of the Chamber; Sir Gerald Fitzmaurice,
the elected judge of British nationality, and
Mr. G. Balladore Pallieri, the President of the Court, were ex officio
members under Article 43 (art. 43) of the Convention and
Rule 21 para. 3 (b) of the Rules of Court respectively. The five judges
thus designated were Mr. H. Mosler, Mr. M. Zekia, Mr. G. Wiarda,
Mrs. H. Pedersen and Mr. S. Petrén (Article 43 in fine of the
Convention and Rule 21 para. 4) (art. 43).
Mr. Balladore Pallieri assumed the office of President of the Chamber
in accordance with Rule 21 para. 5.
4. The President of the Chamber ascertained, through the Registrar,
the views of the Agent of the Government of the United Kingdom
(hereinafter called "the Government") and the delegates of the
Commission regarding the procedure to be followed; having regard to
their concurring statements, the President decided by an Order of
6 February 1976 that it was not necessary at that stage for memorials
to be filed. He also instructed the Registrar to invite the
Commission to produce certain documents and these were received at the
registry on 11 February.
5. On 29 April 1976, the Chamber decided under Rule 48 to relinquish
jurisdiction forthwith in favour of the plenary Court, "considering
that the case raise[d] serious questions affecting the interpretation
of the Convention ...".
6. On the same day, the Court held a preparatory meeting to consider
the oral stage of the procedure. At this meeting it compiled a list
of questions which it sent to the Commission and to the Government,
requesting them to supply the required information in the course of
their addresses.
7. After consulting, through the Registrar, the Agent of the
Government and the delegates of the Commission, the President decided
by an Order of 3 May 1976 that the oral hearings should open on
5 June.
8. The oral hearings were held in public at the Human Rights
Building, Strasbourg, on 5 and 7 June 1976.
There appeared before the Court:
- for the Government:
- Mr. P. FIFOOT, Legal Counsellor, Foreign and Commonwealth Office,
Barrister-at-Law, Agent and Counsel,
- Mr. G. SLYNN, Q.C., Recorder of Hereford,
- Mr. N. BRATZA, Barrister-at-Law, Counsel,
- Mr. A.H. HAMMOND, Assistant Legal Adviser, Home Office,
- Mr. J.C. DAVEY, Principal, Home Office, Advisers;
- for the Commission:
- Mr. G. SPERDUTI, Principal Delegate,
- Mr. S. TRECHSEL, Delegate,
- Mr. C. THORNBERRY, who had represented the applicant before the
Commission, assisting the Delegates under Rule 29 para. 1, second
sentence.
The Court heard the addresses and submissions of Mr. Fifoot and
Mr. Slynn for the Government and of Mr. Sperduti, Mr. Trechsel and
Mr. Thornberry for the Commission, as well as their replies to the
questions put by the Court and several judges.
AS TO THE FACTS
Historical
9. The applicant, Mr. Richard Handyside, is proprietor of the
publishing firm "Stage 1" in London which he opened in 1968. He has
published, among other books, The Little Red Schoolbook (hereinafter
called "the Schoolbook"), the original edition of which was the
subject of the present case and a revised edition of which appeared on
15 November 1971.
10. The applicant's firm had previously published Socialism and Man
in Cuba, by Che Guevara, Major Speeches, by Fidel Castro, and
Revolution in Guinea, by Amilcar Cabral. Since 1971 four further
titles have appeared, namely Revolution in the Congo, by
Eldridge Cleaver, a book of writings from the Women's Liberation
Movement called Body Politic, China's Socialist Revolution, by
John and Elsie Collier, and The Fine Tubes Strike, by Tony Beck.
11. The British rights of the Schoolbook, written by Søren Hansen and
Jesper Jensen, two Danish authors, had been purchased by the applicant
in September 1970. The book had first been published in Denmark in
1969 and subsequently, after translation and with certain adaptations,
in Belgium, Finland, France, the Federal Republic of Germany, Greece,
Iceland, Italy, the Netherlands, Norway, Sweden and Switzerland as
well as several non-European countries. Furthermore it circulated
freely in Austria and Luxembourg.
12. After having arranged for the translation of the book into
English the applicant prepared an edition for the United Kingdom with
the help of a group of children and teachers. He had previously
consulted a variety of people about the value of the book and intended
publication in the United Kingdom on 1 April 1971. As soon as
printing was completed he sent out several hundred review copies of
the book, together with a press release, to a selection of
publications from national and local newspapers to educational and
medical journals. He also placed advertisements for the book in
various publications including The Bookseller, The Times Educational
and Literary Supplements and Teachers World.
13. On 22 March 1971, the Daily Mirror published an account of the
book's contents, and other accounts appeared in The Sunday Times and
the Sunday Telegraph on 28 March. Further reports were carried by the
Daily Telegraph on 29 and 30 March; they also indicated that
representations would be made to the Director of Public Prosecutions
demanding that action should be taken against the publication of the
book. The Schoolbook was also the subject of further extensive press
comment, some favourable and some not, immediately after and around
the time of the seizure referred to below.
14. After receipt of a number of complaints, on 30 March 1971 the
Director of Public Prosecutions asked the Metropolitan Police to
undertake enquiries. As a result of these, on 31 March 1971, a
successful application was made for a warrant under section 3 of the
Obscene Publications Acts 1959/1964 to search the premises occupied by
Stage 1 in London. The warrant was issued in the applicant's absence
but in accordance with the procedure laid down by English law and a
copy of the Schoolbook was before the judicial authority which issued
the warrant. It was executed on the same day and 1,069 copies of the
book were provisionally seized together with leaflets, posters,
showcards and correspondence relating to its publication and sale.
15. Acting on the advice of his lawyers the applicant continued
distributing copies of the book in the subsequent days. After the
Director of Public Prosecutions had received information that further
copies had been taken to Stage 1's premises after the search, further
successful applications were made on 1 April 1971 (in conditions
similar to those described above) to search again those premises and
also the premises of the printers of the book. Later that day
altogether 139 copies of the book were seized at Stage 1's premises
and, at the printer's, 20 spoiled copies of the book, together with
correspondence relating to it and the matrix with which the book was
printed. About 18,800 copies of a total print of 20,000 copies were
missed and subsequently sold, for example, to schools which had placed
orders.
16. On 8 April 1971, a Magistrates' Court issued, under section 2 (1)
of the Obscene Publications Act 1959, as amended by section 1 (1) of
the Obscene Publications Act 1964, two summonses against the applicant
for the following offences:
(a) on 31 March 1971 having in his possession 1,069 obscene books
entitled "The Little Red Schoolbook" for publication for gain;
(b) on 1 April 1971, having in his possession 139 obscene books
entitled "The Little Red Schoolbook" for publication for gain.
The summonses were served on the applicant on the same day. He
thereupon ceased distribution of the book and advised bookshops
accordingly but, by that time, some 17,000 copies were already in
circulation.
17. The summonses were answerable on 28 May 1971 at Clerkenwell
Magistrates' Court but, on the application of the Director of Public
Prosecutions, the case was adjourned until 29 June. On that day the
applicant appeared at Lambeth Magistrates' Court to which the case had
been transferred, having consented to the case being heard and
determined in summary proceedings by a magistrate rather than by a
judge and a jury on indictment. He claims that this choice was
dictated by his financial plight and the need to avoid the delays
inherent in the indictment procedure although this is questioned by
the Government. Having been granted legal aid, he was represented by
counsel. On 1 July 1971, after witnesses had been called for both
prosecution and defence, the applicant was found guilty of both
offences and fined £25 on each summons and ordered to pay £110 costs.
At the same time the court made a forfeiture order for the destruction
of the books by the police.
18. On 10 July 1971 notices of appeal against both convictions were
received by the Metropolitan Police from the applicant's solicitors.
The grounds stated were "that the magistrate's decision was wrong and
against the weight of the evidence". The appeal was heard before the
Inner London Quarter Sessions on 20, 21, 22, 25 and 26 October 1971.
At this hearing witnesses gave evidence on behalf of the prosecution
and on behalf of the applicant. Judgment was delivered on
29 October 1971: the decision at first instance was upheld and the
applicant was ordered to pay another £854 costs. The material seized
as described above was then destroyed.
The applicant did not exercise his right of making a further appeal to
the Court of Appeal since he did not dispute that the judgment of
29 October 1971 had correctly applied English law.
19. Whilst the Schoolbook was not the subject of proceedings in
Northern Ireland, the Channel Islands or the Isle of Man, the same was
not true of Scotland.
Indeed a Glasgow bookseller was charged under a local Act. However he
was acquitted on 9 February 1972 by a stipendiary magistrate who
considered that the book was not indecent or obscene within the
meaning of that Act. It does not appear from the file whether the case
concerned the original or the revised edition.
Further, a complaint was brought under Scottish law against Stage 1 in
respect of the revised edition. It was dismissed on 8 December 1972 by
an Edinburgh court solely on the ground that the accused could not
have the necessary mens rea. In January 1973 the Procurator Fiscal
announced that he would not appeal against this decision; he also did
not avail himself of his right to initiate criminal proceedings
against Mr. Handyside personally.
The Schoolbook
20. The original English language edition of the book, priced at
thirty pence a copy, had altogether 208 pages. It contained an
introduction headed "All grown-ups are paper tigers", an "Introduction
to the British edition", and chapters on the following subjects:
Education, Learning, Teachers, Pupils and The System. The chapter on
Pupils contained a twenty-six page section concerning "Sex" which
included the following sub-sections: Masturbation, Orgasm, Intercourse
and petting, Contraceptives, Wet dreams, Menstruation, Child-molesters
or "dirty old men", Pornography, Impotence, Homosexuality, Normal and
abnormal, Find out more, Venereal diseases, Abortion, Legal and
illegal abortion, Remember, Methods of abortion, Addresses for help
and advice on sexual matters. The Introduction stated: "This book is
meant to be a reference book. The idea is not to read it straight
through, but to use the list of contents to find and read about the
things you're interested in or want to know more about. Even if
you're at a particularly progressive school you should find a lot of
ideas in the book for improving things."
21. The applicant had planned the distribution of the book through
the ordinary book-selling channels although it was said at the appeal
hearing to have been accepted that the work was intended for, and
intended to be made available to, school-children of the age of twelve
and upwards.
22. Pending the appeal hearing, the applicant consulted his legal
advisers concerning a revision of the Schoolbook to avoid further
prosecutions; apparently he tried to consult the Director of Public
Prosecutions as well, but in vain. It was decided to eliminate or
re-write the offending lines which had been attacked before the
Magistrates' Court by the prosecution but to do so necessitated, in
some cases, re-writing substantially more than these criticised
sentences. There were other alterations made to the text by way of
general improvement, for example in response to comments and
suggestions from readers and the updating of changed data (addresses,
etc.).
23. The revised edition was published on 15 November 1971. After
consulting the Attorney General, the Director of Public Prosecutions
announced on 6 December 1971 that the new edition would not be the
subject of a prosecution. This publication took place after the
Quarter Sessions judgment but the revision of the Schoolbook had been
completed, and the printing of the new version was in train, well
before.
Domestic law
24. The action against the Schoolbook was based on the Obscene
Publications Act 1959, as amended by the Obscene Publications
Act 1964 (hereinafter called "the 1959/1964 Acts").
25. The relevant extracts from the 1959/1964 Acts, read together, are
as follows:
Section 1
"(1) For the purposes of this act an article shall be deemed to be
obscene if its effect or (where the article comprises two or more
distinct items) the effect of any one of its items is, if taken as a
whole, such as to tend to deprave and corrupt persons who are likely,
having regard to all relevant circumstances, to read, see or hear the
matter contained or embodied in it.
(2) In this Act 'article' means any description of article containing
or embodying matter to be read or looked at or both, any sound record,
and any film or other record of a picture or pictures.
..."
Section 2
"(1) Subject as hereinafter provided, any person who, whether for gain
or not, publishes an obscene article or who has an obscene article for
publication for gain (whether gain to himself or gain to another)
shall be liable -
(a) on summary conviction to a fine not exceeding one hundred pounds
or to imprisonment for a term not exceeding six months;
(b) on conviction on indictment to a fine or to imprisonment for a
term not exceeding three years or both.
... A person shall be deemed to have an article for publication for
gain if with a view to such publication he has the article in his
ownership, possession or control.
...
(4) A person publishing an article shall not be proceeded against for
an offence at common law consisting of the publication of any matter
contained or embodied in the article where it is of the essence of the
offence that the matter is obscene.
..."
Section 3
"(1) If a justice of the peace is satisfied by information on oath
that there is reasonable ground for suspecting that, in any premises
... specified in the information, obscene articles are, or are from
time to time, kept for publication for gain, the justice may issue a
warrant ... empowering any constable to enter (if need be by force)
and search the premises ... within fourteen days from the date of the
warrant, and to seize and remove any articles found therein ... which
the constable has reason to believe to be obscene articles and to be
kept for publication for gain.
(2) A warrant under the foregoing subsection shall, if any obscene
articles are seized under the warrant, also empower the seizure and
removal of any documents found in the premises ... which relate to a
trade or bussiness carried on at the premises ...
(3) Any articles seized ... shall be brought before a justice of the
peace ... who ... may thereupon issue a summons to the occupier of the
premises ... to appear ... before a magistrates' court ... to show
cause why the articles or any of them should not be forfeited; and if
the court is satisfied, as respects any of the articles, that at the
time when they were seized they were obscene articles kept for
publication for gain, the court shall order those articles to be
forfeited.
...
(4) In addition to the person summoned, any other person being the
owner, author or maker of any of the articles brought before the
court, or any other person through whose hands they had passed before
being seized, shall be entitled to appear before the court ... to show
cause why they should not be forfeited.
(5) Where an order is made under this section for the forfeiture of
any articles, any person who appeared, or was entitled to appear, to
show cause against the making of the order may appeal to quarter
sessions; and no such order shall take effect until the expiration of
fourteen days after the day on which the order is made, or, if before
the expiration thereof notice of appeal is duly given or application
is made for the statement of a case for the opinion of the High Court,
until the final determination or abandonment of the proceedings on the
appeal or case.
...
(7) For the purposes of this section the question whether an article
is obscene shall be determined on the assumption that copies of it
would be published in any manner likely having regard to the
circumstances in which it was found, but in no other manner.
...
... Where articles are seized under section 3 ... and a person is
convicted under section 2 ... of having them for publication for gain,
the court on his conviction shall order the forfeiture of those
articles.
Provided that an order made by virtue of this subsection (including an
order so made on appeal) shall not take effect until the expiration of
the ordinary time within which an appeal in the matter of the
proceedings in which the order was made may be instituted or, where
such an appeal is duly instituted, until the appeal is finally decided
or abandoned;
..."
Section 4
"(1) A person shall not be convicted of an offence against section 2
of this Act and an order for forfeiture shall not be made under the
foregoing section if it is proved that publication of the article in
question is justified as being for the public good on the ground that
it is in the interests of science, literature, art of learning, or of
other objects of general concern.
(2) It is hereby declared that the opinion of experts as to the
literary, artistic, scientific or other merits of an article may be
admitted in any proceedings under this Act either to establish or to
negative the said ground."
Section 5
"...
(3) This Act shall not extend to Scotland or to Nothern Ireland."
26. At the time of the events under review, the authorities
frequently adopted a non-contentious procedure ("disclaimer/caution
procedure") rather than instituting, as in this case, criminal
proceedings. However it could only be used when the individual
admitted that the article was obscene and consented to its
destruction. The procedure constituted no more than a matter of
practice and was abandoned in 1973 following criticisms expressed in a
judicial decision.
The judgment of the Inner London Quarter Sessions
27. At the appeal hearing two principal issues were examined by the
court, namely, first, whether or not the Crown had proved beyond
reasonable doubt that the Schoolbook was an obscene article within the
meaning of the 1959/1964 Acts; and secondly, if so, whether or not the
applicant had established the defence under section 4 of the 1959/1964
Acts to the effect that he had shown, on a balance of probabilities,
that publication of the book was justified as being for the public
good.
28. The court first dealt with the issue of obscenity. Following a
decision in another case the court noted that it had to be satisfied
that the persons who it was alleged were likely to read the article
would constitute a significant proportion. It also accepted the
meaning of the words "deprave and corrupt" as it had been explained in
that other case and about which there had been no dispute between the
parties.
29. Following further previous case-law, the court had decided that
expert evidence should be admitted on the question of whether the
Schoolbook was obscene. Such evidence, though not normally admissible
for this purpose but only in connection with the defence under
section 4 of the 1959/1964 Acts, could be heard in the present case
which was concerned with the effect of the article upon children.
The court had therefore heard seven witnesses on behalf of the
prosecution and nine on behalf of the applicant, being experts in
various fields, in particular those of psychiatry and teaching; the
views they had expressed were very different. After they had been
heard, the applicant had argued that, when one had the sincere opinion
of many highly-qualified experts against the prosecution's case, it
was impossible to say that the tendency to deprave and corrupt had
been established with certainty. The court was unable to accept this
submission: in its judgment of 29 October 1971 it pointed out that
there was an almost infinite variation in the relevant background of
the children who would be in one way or another affected by the book,
so that it was difficult to speak of "true facts" in this case.
The views of the applicant's witnesses had been those approaching the
extreme of one wing of the more broadly varied outlook on the
education and upbringing of children, whereas the evidence given on
behalf of the prosecution tended to cover the views of those who,
although clearly tending in the opposite direction, were less radical.
Particularly, when looking at the evidence on behalf of the applicant,
the court had been driven to the conclusion that most of the witnesses
were so uncritical of the book looked at as a whole, and so
unrestrained in their praise of it, as to make them at times less
convincing than otherwise they might have been. In summary the court
considered that a good deal of the witnesses had been so single-minded
in an extreme point of view as to forfeit in a large measure the power
to judge with that degree of responsibility which makes the evidence
of any great value on a matter of this sort.
30. Concerning the Schoolbook itself, the court first stressed that
it was intended for children passing through a highly critical stage
of their development. At such a time a very high degree of
responsibility ought to be exercised by the courts. In the present
case, they had before them, as something said to be a perfectly
responsible adult opinion, a work of an extreme kind, unrelieved by
any indication that there were any alternative views; this was
something which detracted from the opportunity for children to form a
balanced view on some of the very strong advice given therein.
31. The court then briefly examined the background. For example,
looking at the book as a whole, marriage was very largely ignored.
Mixing a very one-sided opinion with fact and purporting to be a book
of reference, it would tend to undermine, for a very considerable
proportion of children, many of the influences, such as those of
parents, the Churches and youth organisations, which might otherwise
provide the restraint and sense of responsibility for oneself which
found inadequate expression in the book.
The court reached the conclusion that, on the whole, and quite clearly
through the mind of the child, the Schoolbook was inimical to good
teacher/child relationships; in particular, there were numerous
passages that it found to be subversive, not only to the authority but
to the influence of the trust between children and teachers.
32. Passing to the tendency to deprave and corrupt, the court
considered the atmosphere of the book looked at as a whole, noting
that the sense of some responsibility for the community as well as to
oneself, if not wholly absent, was completely subordinated to the
development of the expression of itself by the child. As indications
of what it considered to result in a tendency to deprave and corrupt,
the court quoted or referred to the following:
A. Passage headed "Be yourself" (p. 77):
"Maybe you smoke pot or go to bed with your boyfriend or girlfriend -
and don't tell your parents or teachers, either because you don't dare
to or just because you want to keep it secret.
Don't feel ashamed or guilty about doing things you really want to do
and think are right just because your parents or teachers might
disapprove. A lot of these things will be more important to you later
in life than the things that are 'approved of'."
The objectionable point was that there was no reference there to the
illegality of smoking pot which was only to be found many pages
further on in an entirely different part of the book. Similarly there
was no specific mention at all in the book of the illegality of sexual
intercourse by a boy who has attained the age of fourteen and a girl
who has not yet attained sixteen. It had to be remembered that the
Schoolbook was indicated as a work of reference and that one looked up
the part which one wanted rather than read it as a whole book.
B. The passage (pp. 97-98) headed "Intercourse and petting" under the
main heading "Sex": to lay this before children as young as many of
those who the court considered would read the book, without any
injunction about restraint or unwisdom, was to produce a tendency to
deprave and corrupt.
C. The passage - (pp. 103 to 105) - under the heading of "Pornography"
and particularly the following:
"Porn is a harmless pleasure if it isn't taken seriously and believed
to be real life. Anybody who mistakes it for reality will be greatly
disappointed.
But it's quite possible that you may get some good ideas from it and
you may find something which looks interesting and that you haven't
tried before."
Unfortunately, the sane and sensible first paragraph quoted above was
immediately followed by a passage suggesting to children that in
pornography they might find some good ideas which they might adopt.
This was to raise the real likelihood that a substantial number of
children would feel it incumbent upon them to look for and practise
such things. Moreover, just on the previous page there was the
following passage: "But there are other kinds - for example pictures
of intercourse with animals or pictures of people hurting each other
in various ways. Pornographic stories describe the same sort of
thing." The court considered that, although it was improbable that
young people would be likely to commit sexual offences with animals as
a result of this, the possibility that they should practise some other
forms of cruelty to one another, for sexual satisfaction, was a real
likelihood in the case of a significant number of children if this got
into the hands of children at a disturbed, unsettled and sexually
excited stage of their lives. Such acts might very well be criminal
offences just like smoking pot and sexual intercourse between a boy of
at least fourteen and a girl not yet sixteen. The expression "to
deprave and corrupt" must include the admission of or the
encouragement to commit criminal offences of that kind.
33. The court concluded "in the light of the whole of the book, that
this book or this article on sex or this section or chapter on pupils,
whichever one chooses as an article, looked at as a whole does tend to
deprave and corrupt a significant number, significant proportion, of
the children likely to read it". Such children would, it was
satisfied, include a very substantial number aged under sixteen.
34. The court finally dealt with the issue of the defence under
section 4 of the 1959/1964 Acts. It stated that no doubt there were
many features about the book which, taken by themselves, were good.
The unfortunate thing was that so frequently the good was intermixed
with things that were bad and detracted from it.
For example, much of the information about contraceptives (pp. 98-102)
was very relevant and desirable which should be laid before very many
children who might not otherwise readily have access to it. But it
was damaged by the suggestion, backed by the recommendation to take
direct action if the school authorities would not give way, that every
school should have at least one contraceptive vending machine
(p. 101).
Similarly, the treatment of the subject of homosexuality (pp. 105-107)
was a factual, very compassionate, understanding and valuable
statement. But again, no matter how good one assessed the value of
this section, it was hopelessly damning by its setting and context,
and the fact that it, only, contained any suggestion of a stable
relationship in relation to sex and that marriage received no such
treatment at all. Moreover, there was a very real danger that this
passage would create in the minds of children a conclusion that that
kind of relationship was something permanent.
Again, there were passages with regard to venereal diseases
(pp. 110-111), contraception (pp. 98-102) and abortion (pp. 111-116),
containing dispassionately and sensibly, and on the whole completely
accurately, a great deal of advice which ought not to be denied to
young children. However, on the balance of probabilities, these
matters could not outweigh what the court was convinced had a
tendency to deprave and corrupt. The court asked itself whether,
granted the degree of indecency which it found, the good likely to
result from the Schoolbook was such that it ought, nevertheless, to be
published in the public interest; it regretfully came to the
conclusion that the burden on the appellant to show that "publication
of the article in question is justified as being for the public good"
had not been discharged.
Further details concerning the revised edition
35. The passages from the original edition of the Schoolbook whose
"extreme" tone or "subversive" aspects had been emphasised by the
judgment of 29 October 1971 (paragraphs 30 and 31 above) are repeated
either with no, or with no important, changes in the revised edition
which was prepared before that date but published on 15 November 1971
(paragraphs 22-23 above).
Of the passages cited by Quarter Sessions as striking examples of the
tendency to deprave and corrupt (paragraph 32 above), one was not
altered (p. 77, "Be yourself"). On the other hand, the others were
fairly extensively softened (pp. 97-98, "Intercourse and petting", and
pp. 103-105, "Pornography") and on page 95 of the work there is now a
mention of the illegality of sexual intercourse with a girl under
sixteen.
Furthermore, the revised edition no longer has any reference to the
installation in schools of contraceptive vending machines and points
out, on page 106, that homosexual tendencies are often temporary.
PROCEEDINGS BEFORE THE COMMISSION
36. In his application, lodged with the Commission on 13 April 1972,
Mr. Handyside complained that the action in the United Kingdom
against himself and the Schoolbook was in breach of his right to
freedom of thought, conscience and belief under Article 9 (art. 9) of
the Convention, his right to freedom of expression under Article 10
(art. 10) of the Convention and his right to the peaceful enjoyment of
possessions under Article 1 of Protocol No. 1 (P1-1). He also
maintained that, contrary to Article 14 (art. 14) of the Convention,
the United Kingdom had failed to secure to him the above rights
without discrimination on the ground of political or other opinion;
that the proceedings brought against him had been contrary to
Article 7 (art. 7) of the Convention; and finally that the respondent
Government were also in breach of Articles 1 and 13 (art. 1, art. 13)
of the Convention. He also itemised the losses he had incurred as a
result of the action in question, which included £14,184 in quantified
damages and further unquantified items.
37. In its decision of 4 April 1974, the Commission accepted the
application insofar as it concerned allegations under Article 10
of the Convention and Article 1 of Protocol No. 1 (art. 10, P1-1), but
declared it inadmissible insofar as it concerned Articles 1,
7, 9, 13 and 14 (art. 1, art. 7, art. 9, art. 13, art. 14) of the
Convention. It decided on the same date to consider, ex officio, any
issue which might arise from the circumstances of the case under
Articles 17 and 18 (art. 17, art. 18) of the Convention and notified
the parties of this a few days later.
38. In its report of 30 September 1975, the Commission expressed the
opinion:
- by eight votes to five, with one abstention, that there had been no
violation of Article 10 (art. 10) of the Convention;
- that neither the provisional seizure (eleven votes) nor the
forfeiture and destruction of the Schoolbook (nine votes to four, with
one abstention) had violated Article 1 of Protocol No. 1 (P1-1);
- by twelve votes in favour, with two abstentions, that further
discussion under Article 17 (art. 17) of the Convention was
unnecessary;
- unanimously, that no breach of Article 18 (art. 18) of the
Convention had been established.
The report contains various separate opinions.
FINAL SUBMISSIONS MADE TO THE COURT
39. The following final submissions were made to the Court at the
oral hearing on 7 June 1976:
- for the Commission:
"May it please the Court to say and to judge
(1) whether, in consequence of the legal proceedings instituted in the
United Kingdom against the applicant as publisher of The Little Red
Schoolbook, proceedings which led to the seizure and confiscation of
that publication and the sentencing of the applicant to payment of a
fine and costs, there was or was not a violation of the Convention, in
particular of Article 10 and of Article 1 of Protocol No. 1 (art. 10,
P1-1);
(2) if so, whether the applicant should be afforded just satisfaction
in accordance with Article 50 (art. 50) of the Convention, of a nature
and amount to be determined by the Court."
- for the Government:
"... the United Kingdom Government have noted the submissions made by
the delegates, and as to the first of them we would ask the Court to
say that in this matter there was no violation.
As to the second matter ..., I think I should say this, that this
Court has not been addressed at this stage on any matter with regard
to satisfaction and it is wholly premature for that issue to be one
that is to be considered by the Court at this stage. If it is to be
considered - if our submission is right on the first issue, it will
not be -, then there is an occasion for further argument on that
matter."
40. In reply to an observation by the Agent of the Government, the
Commission's principal delegate stated that, when using the words "in
particular", he had meant to indicate the two Articles which were to
be taken into consideration by the Court.
AS TO THE LAW
41. On 4 April 1974, following a hearing in the presence of the
parties on both merits and admissibility, the Commission accepted the
application insofar as it concerned Article 10 of the Convention and
Article 1 of Protocol No. 1 (art. 10, P1-1), but declared it
inadmissible to the extent that Mr. Handyside invoked Articles 1, 7,
9, 13 and 14 (art. 1, art. 7, art. 9, art. 13, art. 14) of the
Convention. A few days later, the Commission advised the parties that
it would take into consideration Articles 17 and 18 (art. 17,
art. 18) as well. However, in its report of 30 September 1975
(paragraphs 170 and 176), it expressed the opinion, in agreement with
the applicant and the Government (paragraphs 92 and 128), that
Article 17 (art. 17) is of no application in this case.
In reply to a question from the Court, the delegates of the Commission
specified that the allegations not retained on 4 April 1974
(Articles 1, 7, 9, 13 and 14 of the Convention) (art. 1, art. 7,
art. 9, art. 13, art. 14) related to the same facts as did those based
on Article 10 of the Convention and Article 1 of Protocol
No. 1 (art. 10, P1-1). They were accordingly not separate complaints
but mere legal submissions or arguments that had been put forward
along with others. However, the provisions of the Convention and of
the Protocol form a whole; once a case is duly referred to it, the
Court may take cognisance of every question of law arising in the
course of the proceedings and concerning facts submitted to its
examination by a Contracting State or by the Commission. Master of
the characterisation to be given in law to these facts, the Court is
empowered to examine them, if it deems it necessary and if need be ex
officio, in the light of the Convention and the Protocol as a whole
(see, inter alia, the judgment of 23 July 1968 on the merits of the
"Belgian Linguistic" case, Series A no. 6, p. 30, para. 1, and the
De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 12,
p. 29, para. 49).
The Court, bearing in mind Mr. Handyside's original application as
well as certain statements made before the Court (see, inter alia,
paragraphs 52 and 56 below), finds that it should have regard to
Article 14 (art. 14) of the Convention in addition to Articles 10
and 18 and Article 1 of Protocol No. 1 (art. 10, art. 18, P1-1). It
shares the opinion of the Commisson that Articles 1, 7, 9, 13 and 17
(art. 1, art. 7, art. 9, art. 13, art. 17) are not relevant in this
case.
I. ON THE ALLEGED VIOLATION OF ARTICLE 10 (art. 10) OF THE CONVENTION
42. The applicant claims to be the victim of a violation of
Article 10 (art. 10) of the Convention which provides:
"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 (art. 10) 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."
43. The various measures challenged - the applicant's criminal
conviction, the seizure and subsequent forfeiture and destruction of
the matrix and of hundreds of copies of the Schoolbook - were without
any doubt, and the Government did not deny it, "interferences by
public authority" in the exercise of his freedom of expression which
is guaranteed by paragraph 1 (art. 10-1) of the text cited above. Such
interferences entail a "violation" of Article 10 if they do not fall
within one of the exceptions provided for in paragraph 2 (art. 10-2),
which is accordingly of decisive importance in this case.
44. If the "restrictions" and "penalties" complained of by
Mr. Handyside are not to infringe Article 10 (art. 10), they must,
according to paragraph 2 (art. 10-2), in the first place have been
"prescribed by law". The Court finds that this was the case. In the
United Kingdom legal system, the basis in law for the measures in
question was the 1959/1964 Acts (paragraphs 14-18, 24-25 and
27-34 above). Besides, this was not contested by the applicant who
further admitted that the competent authorities had correctly applied
those Acts.
45. Having thus ascertained that the interferences complained of
satisfied the first of the conditions in paragraph 2 of Article 10
(art. 10-2), the Court then investigated whether they also complied
with the others. According to the Government and the majority of the
Commission, the interferences were "necessary in a democratic
society", "for the protection of ... morals".
46. Sharing the view of the Government and the unanimous opinion of
the Commission, the Court first finds that the 1959/1964 Acts have an
aim that is legitimate under Article 10 para. 2 (art. 10-2), namely, the
protection of morals in a domocratic society. Only this latter
purpose is relevant in this case since the object of the said Acts
- to wage war on "obscene" publications, defined by their tendency to
"deprave and corrupt" - is linked far more closely to the protection
of morals than to any of the further purposes permitted by
Article 10 para. 2 (art. 10-2).
47. The Court must also investigate whether the protection of morals
in a democratic society necessitated the various measures taken
against the applicant and the Schoolbook under the 1959/1964 Acts.
Mr. Handyside does not restrict himself to criticising these Acts as
such: he also makes - from the viewpoint of the Convention and not of
English law - several complaints concerning their application in his
case.
The Commission's report and the subsequent hearings before the Court
in June 1976 brought to light clear-cut differences of opinion on a
crucial problem, namely, how to determine whether the actual
"restrictions" and "penalties" complained of by the applicant were
"necessary in a democratic society", "for the protection of morals".
According to the Government and the majority of the Commission, the
Court has only to ensure that the English courts acted reasonably, in
good faith and within the limits of the margin of appreciation left to
the Contracting States by Article 10 para. 2 (art. 10-2). On the other
hand, the minority of the Commission sees the Court's task as being
not to review the Inner London Quarter Sessions judgment but to
examine the Schoolbook directly in the light of the Convention and of
nothing but the Convention.
48. The Court points out that the machinery of protection established
by the Convention is subsidiary to the national systems safeguarding
human rights (judgment of 23 July 1968 on the merits of the "Belgian
Linguistic" case, Series A no. 6, p. 35, para. 10 in fine). The
Convention leaves to each Contracting State, in the first place, the
task of securing the rights and liberties it enshrines. The
institutions created by it make their own contribution to this task
but they become involved only through contentious proceedings and once
all domestic remedies have been exhausted (Article 26) (art. 26).
These observations apply, notably, to Article 10 para. 2 (art. 10-2). In
particular, it is not possible to find in the domestic law of the
various Contracting States a uniform European conception of morals.
The view taken by their respective laws of the requirements of morals
varies from time to time and from place to place, especially in our
era which is characterised by a rapid and far-reaching evolution of
opinions on the subject. By reason of their direct and continuous
contact with the vital forces of their countries, State authorities
are in principle in a better position than the international judge to
give an opinion on the exact content of these requirements as well as
on the "necessity" of a "restriction" or "penalty" intended to meet
them. The Court notes at this juncture that, whilst the adjective
"necessary", within the meaning of Article 10 para. 2 (art. 10-2), is not
synonymous with "indispensable" (cf., in Articles 2 para. 2 (art. 2-2) and
6 para. 1 (art. 6-1), the words "absolutely necessary" and "strictly
necessary" and, in Article 15 para. 1 (art. 15-1), the phrase "to the
extent strictly required by the exigencies of the situation"), neither
has it the flexibility of such expressions as "admissible", "ordinary"
(cf. Article 4 para. 3) (art. 4-3), "useful" (cf. the French text of the
first paragraph of Article 1 of Protocol No. 1) (P1-1), "reasonable"
(cf. Articles 5 para. 3 and 6 para. 1) (art. 5-3, art. 6-1) or "desirable".
Nevertheless, it is for the national authorities to make the initial
assessment of the reality of the pressing social need implied by the
notion of "necessity" in this context.
Consequently, Article 10 para. 2 (art. 10-2) leaves to the Contracting
States a margin of appreciation. This margin is given both to the
domestic legislator ("prescribed by law") and to the bodies, judicial
amongst others, that are called upon to interpret and apply the laws
in force (Engel and others judgment of 8 June 1976, Series A no. 22,
pp. 41-42, para. 100; cf., for Article 8 para. 2 (art. 8-2), De Wilde, Ooms
and Versyp judgment of 18 June 1971, Series A no. 12, pp. 45-46, para. 93,
and the Golder judgment of 21 February 1975, Series A no. 18,
pp. 21-22, para. 45).
49. Nevertheless, Article 10 para. 2 (art. 10-2) does not give the
Contracting States an unlimited power of appreciation. The Court,
which, with the Commission, is responsible for ensuring the
observance of those States' engagements (Article 19) (art. 19), is
empowered to give the final ruling on whether a "restriction" or
"penalty" is reconcilable with freedom of expression as protected by
Article 10 (art. 10). The domestic margin of appreciation thus goes
hand in hand with a European supervision. Such supervision concerns
both the aim of the measure challenged and its "necessity"; it covers
not only the basic legislation but also the decision applying it,
even one given by an independent court. In this respect, the Court
refers to Article 50 (art. 50) of the Convention ("decision or ...
measure taken by a legal authority or any other authority") as well as
to its own case-law (Engel and others judgment of 8 June 1976,
Series A no. 22, pp. 41-42, para. 100).
The Court's supervisory functions oblige it to pay the utmost
attention to the principles characterising a "democratic society".
Freedom of expression constitutes one of the essential foundations of
such a society, one of the basic conditions for its progress and for
the development of every man.
Subject to paragraph 2 of Article 10
(art. 10-2), it is applicable not only to "information" or "ideas"
that are favourably received or regarded as inoffensive or as a matter
of indifference, but also to those that offend, shock or disturb the
State or any sector of the population.
Such are the demands of that
pluralism, tolerance and broadmindedness without which there is no
"democratic society". This means, amongst other things, that every
"formality", "condition", "restriction" or "penalty" imposed in this
sphere must be proportionate to the legitimate aim pursued.
From another standpoint, whoever exercises his freedom of expression
undertakes "duties and responsibilities" the scope of which depends on
his situation and the technical means he uses. The Court cannot
overlook such a person's "duties" and "responsibilities" when it
enquires, as in this case, whether "restrictions" or "penalties" were
conducive to the "protection of morals" which made them "necessary" in
a "democratic society".
50. It follows from this that it is in no way the Court's task to
take the place of the competent national courts but rather to review
under Article 10 (art. 10) the decisions they delivered in the
exercise of their power of appreciation.
However, the Court's supervision would generally prove illusory if it
did no more than examine these decisions in isolation; it must view
them in the light of the case as a whole, including the publication in
question and the arguments and evidence adduced by the applicant in
the domestic legal system and then at the international level. The
Court must decide, on the basis of the different data available to it,
whether the reasons given by the national authorities to justify the
actual measures of "interference" they take are relevant and
sufficient under Article 10 para. 2 (art. 10-2) (cf., for Article 5 para. 3
(art. 5-3), the Wemhoff judgment of 27 June 1968, Series A no. 7,
pp. 24-25, para. 12, the Neumeister judgment of 27 June 1968,
Series A no. 8, p. 37, para. 5, the Stögmüller judgment of 10 November
1969, Series A no. 9, p. 39, para. 3, the Matznetter judgment of
10 November 1969, Series A no. 10, p. 31, para. 3, and the Ringeisen
judgment of 16 July 1971, Series A no. 13, p. 42, para. 104).
51. Following the method set out above, the Court scrutinized under
Article 10 para. 2 (art. 10-2) the individual decisions complained of, in
particular, the judgment of the Inner London Quarter Sessions.
The said judgment is summarised in paragraphs 27-34 above. The Court
reviewed it in the light of the case as a whole; in addition to the
pleadings before the Court and the Commission's report, the memorials
and oral explanations presented to the Commission between June 1973
and August 1974 and the transcript of the proceedings before the
Quarter Sessions were, inter alia, taken into consideration.
52. The Court attaches particular importance to a factor to which the
judgment of 29 October 1971 did not fail to draw attention, that is,
the intended readership of the Schoolbook. It was aimed above all at
children and adolescents aged from twelve to eighteen. Being
direct, factual and reduced to essentials in style, it was easily
within the comprehension of even the youngest of such readers. The
applicant had made it clear that he planned a widespread circulation.
He had sent the book, with a press release, to numerous daily papers
and periodicals for review or for advertising purposes. What is more,
he had set a modest sale price (thirty pence), arranged for a reprint
of 50,000 copies shortly after the first impression of 20,000 and
chosen a title suggesting that the work was some kind of handbook for
use in schools.
Basically the book contained purely factual information that was
generally correct and often useful, as the Quarter Sessions
recognised. However, it also included, above all in the section on
sex and in the passage headed "Be yourself" in the chapter on pupils
(paragraph 32 above), sentences or paragraphs that young people at a
critical stage of their development could have interpreted as an
encouragement to indulge in precocious activities harmful for them or
even to commit certain criminal offences. In these circumstances,
despite the variety and the constant evolution in the United Kingdom
of views on ethics and education, the competent English judges were
entitled, in the exercise of their discretion, to think at the
relevant time that the Schoolbook would have pernicious effects on the
morals of many of the children and adolescents who would read it.
However, the applicant maintained, in substance, that the demands of
the "protection of morals" or, to use the wording of the 1959/1964
Acts, of the war against publications likely to "deprave and corrupt",
were but a pretext in his case. The truth of the matter, he alleged,
was that an attempt had been made to muzzle a small-scale publisher
whose political leanings met with the disapproval of a fragment of
public opinion. Proceedings were set in motion, said he, in an
atmosphere little short of "hysteria", stirred up and kept alive by
ultra-conservative elements. The accent in the judgment of
29 October 1971 on the anti-authoritarian aspects of the Schoolbook
(paragraph 31 above) showed, according to the applicant, exactly what
lay behind the case.
The information supplied by Mr. Handyside seems, in fact, to show
that letters from members of the public, articles in the press and
action by Members of Parliament were not without some influence in the
decision to seize the Schoolbook and to take criminal proceedings
against its publisher. However, the Government drew attention to the
fact that such initiatives could well have been explained not by some
dark plot but by the genuine emotion felt by citizens faithful to
traditional moral values when, towards the end of March 1971, they
read in certain newspapers extracts from the book which was due to
appear on 1 April. The Government also emphasised that the
proceedings ended several months after the "campaign" denounced by the
applicant and that he did not claim that it had continued in the
intervening period. From this the Government concluded that the
"campaign" in no way impaired dispassionate deliberation at the
Quarter Sessions.
For its part the Court finds that the anti-authoritarian aspects of
the Schoolbook as such were not held in the judgment of
29 October 1971 to fall foul of the 1959/1964 Acts. Those aspects
were taken into account only insofar as the appeal court considered
that, by undermining the moderating influence of parents, teachers,
the Churches and youth organisations, they aggravated the tendency to
"deprave and corrupt" which in its opinion resulted from other parts
of the work. It should be added that the revised edition was allowed
to circulate freely by the British authorities despite the fact that
the anti-authoritarian passages again appeared there in full and even,
in some cases, in stronger terms (paragraph 35 above). As the
Government noted, this is hard to reconcile with the theory of a
political intrigue.
The Court thus allows that the fundamental aim of the judgment of
29 October 1971, applying the 1959/1964 Acts, was the protection of
the morals of the young, a legitimate purpose under Article 10 para. 2
(art. 10-2). Consequently, the seizures effected on 31 March and
1 April 1971, pending the outcome of the proceedings that were about
to open, also had this aim.
53. It remains to examine the "necessity" of the measures in dispute,
beginning with the said seizures.
If the applicant is right, their object should have been at the most
one or a few copies of the book to be used as exhibits in the criminal
proceedings. The Court does not share this view since the police had
good reasons for trying to lay their hands on all the stock as a
temporary means of protecting the young against a danger to morals on
whose existence it was for the trial court to decide. The legislation
of many Contracting States provides for a seizure analogous to that
envisaged by section 3 of the English 1959/1964 Acts.
54. A series of arguments which merit reflection was advanced by the
applicant and the minority of the Commission concerning the
"necessity" of the sentence and the forfeiture at issue.
Firstly, they drew attention to the fact that the original edition of
the Schoolbook was the object of no proceedings in Northern Ireland,
the Isle of Man and the Channel Islands and of no conviction in
Scotland and that, even in England and Wales, thousands of copies
circulated without impediment despite the judgment of 29 October 1971.
The Court recalls that section 5 (3) of the 1959/1964 Acts provides
that they shall not extend to Scotland or to Northern Ireland
(paragraph 25 in fine above). Above all, it must not be forgotten that
the Convention, as is shown especially by its Article 60 (art. 60),
never puts the various organs of the Contracting States under an
obligation to limit the rights and freedoms it guarantees. In
particular, in no case does Article 10 para. 2 (art. 10-2) compel them to
impose "restrictions" or "penalties" in the field of freedom of
expression; it in no way prevents them from not availing themselves of
the expedients it provides for them (cf. the words "may be subject").
The competent authorities in Northern Ireland, the Isle of Man and the
Channel Islands may, in the light of local conditions, have had
plausible reasons for not taking action against the book and its
publisher, as may the Scottish Procurator Fiscal for not summonsing
Mr. Handyside to appear in person in Edinburgh after the dismissal of
the complaint under Scottish law against Stage 1 in respect of the
revised edition (paragraph 19 above). Their failure to act - into
which the Court does not have to enquire and which did not prevent the
measures taken in England from leading to revision of the Schoolbook -
does not prove that the judgment of 29 October 1971 was not a response
to a real necessity, bearing in mind the national authorities' margin
of appreciation.
These remarks also apply, mutatis mutandis, to the circulation of many
copies in England and Wales.
55. The applicant and the minority of the Commission also stressed
that the revised edition, albeit little different in their view from
the first, was not the object of proceedings in England and Wales.
The Government charged them with minimising the extent of the changes
made to the original text of the Schoolbook: although the changes were
made between the conviction at first instance on 1 July 1971 and the
appeal judgment of 29 October 1971, they were said to relate to the
main passages cited by the Quarter Sessions as showing particularly
clearly a tendency to "deprave and corrupt". The Government claimed
that the Director of Public Prosecutions must have taken the view that
the changes dispensed him from invoking the 1959/1964 Acts again.
In the Court's view, the absence of proceedings against the revised
edition, which differed fairly extensively from the original edition
on the points at issue (paragraphs 22-23 and 35 above), rather
suggests that the competent authorities wished to limit themselves to
what was strictly necessary, an attitude in conformity with Article 10
(art. 10) of the Convention.
56. The treatment meted out to the Schoolbook and its publisher in
1971 was, according to the applicant and the minority of the
Commission, all the less "necessary" in that a host of publications
dedicated to hard core pornography and devoid of intellectual or
artistic merit allegedly profit by an extreme degree of tolerance in
the United Kingdom. They are exposed to the gaze of passers-by and
especially of young people and are said generally to enjoy complete
impunity, the rare criminal prosecutions launched against them
proving, it was asserted, more often than not abortive due to the
great liberalism shown by juries. The same was claimed to apply to
sex shops and much public entertainment.
The Government countered this by the remark, supported by figures,
that the Director of Public Prosecutions does not remain inactive nor
does the police, despite the scanty manpower resources of the squad
specialising in this field. Moreover, they claim that, in addition to
proceedings properly so called, seizures were frequently made at the
relevant time under the "disclaimer/caution procedure"
(paragraph 26 above).
In principle it is not the Court's function to compare different
decisions taken, even in apparently similar circumstances, by
prosecuting authorities and courts; and it must, just like the
respondent Government, respect the independence of the courts.
Furthermore and above all, the Court is not faced with really
analogous situations: as the Government pointed out, the documents in
the file do not show that the publications and entertainment in
question were aimed, to the same extent as the Schoolbook
(paragraph 52 above), at children and adolescents having ready access
thereto.
57. The applicant and the minority of the Commission laid stress on
the further point that, in addition to the original Danish edition,
translations of the "Little Book" appeared and circulated freely in
the majority of the member States of the Council of Europe.
Here again, the national margin of appreciation and the optional
nature of the "restrictions" and "penalties" referred to in
Article 10 para. 2 (art. 10-2) prevent the Court from accepting the
argument. The Contracting States have each fashioned their approach
in the light of the situation obtaining in their respective
territories; they have had regard, inter alia, to the different views
prevailing there about the demands of the protection of morals in a
democratic society. The fact that most of them decided to allow the
work to be distributed does not mean that the contrary decision of the
Inner London Quarter Sessions was a breach of Article 10 (art. 10).
Besides, some of the editions published outside the United Kingdom do
not include the passages, or at least not all the passages, cited in
the judgment of 29 October 1971 as striking examples of a tendency to
"deprave and corrupt".
58. Finally, at the hearing on 5 June 1976, the delegate expounding
the opinion of the minority of the Commission maintained that in any
event the respondent State need not have taken measures as Draconian
as the initiation of criminal proceedings leading to the conviction of
Mr. Handyside and to the forfeiture and subsequent destruction of the
Schoolbook. The United Kingdom was said to have violated the
principle of proportionality, inherent in the adjective "necessary",
by not limiting itself either to a request to the applicant to
expurgate the book or to restrictions on its sale and advertisement.
With regard to the first solution, the Government argued that the
applicant would never have agreed to modify the Schoolbook if he had
been ordered or asked to do so before 1 April 1971: was he not
strenuously disputing its "obscenity"? The Court for its part confines
itself to finding that Article 10 (art. 10) of the Convention
certainly does not oblige the Contracting States to introduce such
prior censorship.
The Government did not indicate whether the second solution was
feasible under English law. Neither does it appear that it would have
been appropriate in this case. There would scarcely have been any
sense in restricting to adults sales of a work destined above all for
the young; the Schoolbook would thereby have lost the substance of
what the applicant considered to be its raison d'être. Moreover, he
did not advert to this question.
59. On the strength of the data before it, the Court thus reaches the
conclusion that no breach of the requirements of Article 10 (art. 10)
has been established in the circumstances of the present case.
II. ON THE ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 (P1-1)
60. The applicant in the second place alleges the violation of
Article 1 of Protocol No. 1 (P1-1) which provides:
"Every natural or legal person is entitled to the peaceful enjoyment
of his possessions. No one shall be deprived of his possessions
except in the public interest and subject to the conditions provided
for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the
right of a State to enforce such laws as it deems necessary to control
the use of property in accordance with the general interest or to
secure the payment of taxes or other contributions or penalties."
61. The complaint concerns two distinct measures, namely, the seizure
on 31 March and 1 April 1971 of the matrix and of hundreds of copies
of the Schoolbook, on the one hand, and their forfeiture and
subsequent destruction following the judgment of 29 October 1971, on
the other. Both measures interfered with Mr. Handyside's right "to
the peaceful enjoyment of his possessions". The Government do not
contest this but, in agreement with the majority of the Commission,
maintain that justification for the measures is to be found in the
exceptions attached by Article 1 of the Protocol (P1-1) to the
principle enunciated in its first sentence.
62. The seizure complained of was provisional. It did no more than
prevent the applicant, for a period, from enjoying and using as he
pleased possessions of which he remained the owner and which he would
have recovered had the proceedings against him resulted in an
acquittal.
In these circumstances, the Court thinks that the second sentence of
the first paragraph of Article 1 (P1-1) does not come into play in
this case. Admittedly the expression "deprived of his possessions",
in the English text, could lead one to think otherwise but the
structure of Article 1 (P1-1) shows that that sentence, which
originated moreover in a Belgian amendment drafted in French
(Collected Edition of the "travaux préparatoires", document H (61) 4,
pp. 1083, 1084, 1086, 1090, 1099, 1105, 1110-1111 and 1113-1114),
applies only to someone who is "deprived of ownership" ("privé de sa
propriété").
On the other hand the seizure did relate to "the use of property" and
thus falls within the ambit of the second paragraph. Unlike
Article 10 para. 2 (art. 10-2) of the Convention, this paragraph sets the
Contracting States up as sole judges of the "necessity" for an
interference. Consequently, the Court must restrict itself to
supervising the lawfulness and the purpose of the restriction in
question. It finds that the contested measure was ordered pursuant to
section 3 of the 1959/1964 Acts and following proceedings which it was
not contested were in accordance with the law. Again, the aim of the
seizure was "the protection of morals" as understood by the competent
British authorities in the exercise of their power of appreciation
(paragraph 52 above). And the concept of "protection of morals", used
in Article 10 para. 2 (art. 10-2) of the Convention, is encompassed in the
much wider notion of the "general interest" within the meaning of the
second paragraph of Article 1 of the Protocol (P1-1).
On this point the Court thus accepts the argument of the Government
and the opinion of the majority of the Commission.
63. The forfeiture and destruction of the Schoolbook, on the other
hand, permanently deprived the applicant of the ownership of certain
possessions. However, these measures were authorised by the second
paragraph of Article 1 of Protocol No. 1 (P1-1), interpreted in the
light of the principle of law, common to the Contracting States,
whereunder items whose use has been lawfully adjudged illicit and
dangerous to the general interest are forfeited with a view to
destruction.
III. ON THE ALLEGED VIOLATION OF ARTICLE 18 (art. 18) OF THE
CONVENTION
64. Mr. Handyside is of the opinion that, contrary to Article 18
(art. 18), he underwent "restrictions" pursuing a "purpose" mentioned
neither by Article 10 (art. 10) of the Convention nor by Article 1 of
Protocol No. 1 (P1-1).
This complaint does not support examination since the Court has
already concluded that the said restrictions concerned aims that were
legitimate under these two last-mentioned Articles (art. 10, P1-1)
(paragraphs 52, 62 and 63 above).
IV. ON THE ALLEGED VIOLATION OF ARTICLE 14 (art. 14) OF THE CONVENTION
65. In the early stages of the proceedings initiated before the
Commission by the applicant, he claimed to be the victim of a
violation of Article 14 (art. 14) of the Convention which provides:
"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."
66. On 4 April 1974 the Commission rejected the application on this
point as being manifestly ill-founded. However, the Court was of the
opinion that it should also have regard to Article 14, taken
together with Article 10 (art. 14+10) of the Convention and Article 1 of
Protocol No. 1 (art. 14+P1-1) (paragraph 41 above): some of Mr. Handyside's
complaints, made after as well as before the decision of 4 April 1974
and with or without express reference to Article 14 (art. 14), raise
the question of an arbitrary difference in treatment.
However, the data before the Court do not show that he suffered
discrimination in the enjoyment of his freedom of expression and his
property rights. In particular, they do not reveal that he was
persecuted on account of his political leanings (paragraph 52 above).
Neither does it appear that the pornographic publications and
entertainment which he said profited by an extreme degree of tolerance
in the United Kingdom were aimed, to the same extent as the
Schoolbook, at children and adolescents having ready access thereto
(paragraph 56 above). Finally, the documents in the file do not
disclose that the measures taken against the applicant and the book
departed from other decisions, taken in similar cases, to the point of
constituting a denial of justice or a manifest abuse (Engel and others
judgment of 8 June 1976, Series A no. 22, p. 42, para. 103).
V. ON THE APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION
67. Having found no violation of Protocol No. 1 (P1) or of the
Convention, the Court concludes that the question of the application
of Article 50 (art. 50) does not arise in this case.
FOR THESE REASONS, THE COURT
1. Holds by thirteen votes to one that there has been no breach of
Article 10 (art. 10) of the Convention;
2. Holds unanimously that there has been no breach either of
Article 1 of Protocol No. 1 (P1-1) or of Articles 14 and 18 (art. 14,
art. 18) of the Convention.
Done in French and in English, the French text being authentic, at
the Human Rights Building, Strasbourg, this seventh day of December,
one thousand nine hundred and seventy-six.
Signed: Giorgio BALLADORE PALLIERI
Signed: Marc-André EISSEN
Judges Mosler and Zekia have annexed their separate opinions to the
present judgment, in accordance with Article 51 para. 2 (art. 51-2) of the
Convention and Rule 50 para. 2 of the Rules of Court.
Initialled: G. B.P.
Initialled: M.-A.E.
SEPARATE OPINION OF JUDGE MOSLER
(Translation)
1. I differ from the Court's reasoning on one point only. However,
it is so decisive for the question of whether or not there has been a
violation in this case that my view on this point of detail has
compelled me to vote against paragraph 1 of the operative provisions
of the judgment. I am not convinced that the measures taken by the
British authorities, including the judgment of the Inner London
Quarter Sessions, were "necessary", within the meaning of
Article 10 para. 2 (art. 10-2), for the achievement of their aim, namely
the protection of morals. Paragraph 2 of Article 10 (art. 10-2)
allows the States to subject the exercise of everyone's right to
freedom of expression to restrictions and penalties only if they are
measures necessary, in a democratic society, for certain aims
considered to be legitimate exceptions to the right guaranteed by
paragraph 1 (art. 10-1). These aims include the protection of morals
which is relied on by the Government. In the absence of one of the
factors which, when found in combination, entitle the State to avail
itself of the exception to the right to freedom of expression,
paragraph 2 (art. 10-2) does not apply and the individual's right must
be respected without any interference. However, my interpretation of
the word "necessary" and my conception of its application to the
impugned measures do not, in part, coincide with the Court's view.
They have thus led to my contrary vote although I entirely approve the
other reasons contained in the judgment and, inter alia, the opinions
expressed on certain questions of principle concerning the scope of
the Convention in relation to the States' domestic legal systems and
the definition of certain elements of the rights guaranteed and the
exceptions permitted.
In order to leave no doubt about my agreement with the opinion of the
Court insofar as it follows and develops more precisely existing
case-law or adopts new and well-defined standpoints, I should like to
emphasise that I accept in particular the passages on the Court's
independence in the characterisation of facts (paragraph 41), on the
respective powers of the Court and of the national authorities
(problem of the "margin of appreciation" - cf., inter alia,
paragraph 50) and on the examination of measures intended to protect
morals in a democratic society (cf., inter alia, paragraph 48).
2. The measures inflicted on the applicant thus had a legitimate aim.
They were taken pursuant to legislation that cannot be criticised
under Article 10 para. 2 (art. 10-2). Nobody disputes their conformity
with this legislation. They were "prescribed by law" within the
meaning of the Convention.
However, the Court's supervision cannot stop there. Since the criteria
in Article 10 para. 2 (art. 10-2) are autonomous concepts (cf. most
recently, mutatis mutandis, the Engel and others judgment of
8 June 1976, Series A no. 22, p. 34, para. 81), the Court must investigate
both whether it was "necessary", for the domestic authorities, to have
recourse to the means they employed to achieve the aim and whether
they overstepped the national margin of appreciation with a resultant
violation of the common standard guaranteed by an autonomous concept.
What is "necessary" is not the same as what is indispensable
(paragraph 48 of the judgment). Such a definition would be too narrow
and would not correspond to the usage of this word in domestic law.
On the other hand, it is beyond question that the measure must be
appropriate for achieving the aim. However, a measure cannot be
regarded as inappropriate, and hence not "necessary", just because it
proves ineffectual by not achieving its aim. A measure likely to be
effectual under normal conditions cannot be deprived of its legal
basis after the event by failure to attain the success which it might
have had in more favourable circumstances.
The greater part of the first edition of the book circulated without
impediment. The measures taken by the competent authorities and
confirmed by the Inner London Quarter Sessions prevented merely the
distribution of under 10 per cent of the impression. The remainder,
that is about 90 per cent, reached the public including probably, to a
large extent, the adolescents meant to be protected (cf. the address
of Mr. Thornberry at the hearing on 7 June 1976). The measures in
respect of the applicant thus had so little success that they must be
taken as ineffectual in relation to the aim pursued. In fact young
people were not protected against the influence of the book that had
been qualified as likely to "deprave and corrupt" them by the
authorities, acting within their legitimate margin of appreciation.
The ineffectualness of the measures would in no way prevent their
being considered appropriate if it had been due to circumstances
beyond the influence and control of the authorities. However, that
was not the case. Certainly it cannot be presumed that the measures
were not taken in good faith and with the genuine intention of
preventing the book's circulation. Above all, the carefully reasoned
judgment of the Inner London Quarter Sessions excludes such a
presumption. Nevertheless, from an objective point of view, the
measures actually taken against the book's circulation could never
have achieved their aim without being accompanied by other measures
against the 90 per cent of the impression. Yet nothing in the case
file, in particular in the adresses of those appearing before the
Court, shows that action of this kind was attempted.
Under Article 10 para. 2 (art. 10-2), the authorities' action in certain
respects and their lack of action in others must be viewed as a whole.
The aim, legitimate under Article 10 para. 2 (art. 10-2), of restricting
freedom of expression in order to protect the morals of the young
against The Little Red Schoolbook, is one and indivisible. The result
of the authorities' action as well as of their inaction must be
attributed to the British State. It is responsible for the application
of measures that were not appropriate with regard to the aim pursued
because they covered only one small part of the object of the
prosecution without taking the others into account.
Accordingly the measures chosen by the authorities were, by their very
nature, inappropriate.
Furthermore some attendant facts must be reviewed.
I leave aside the fact, apparently not disputed between the State, the
Commission and the applicant, that publications far more "obscene"
than The Little Red Schoolbook were readily accessible to anyone in
the United Kingdom. Assuming this to be correct, it does not prevent
the authorities from having recourse to measures of prohibition
against a book intended in particular for schoolchildren.
On the other hand, the diversity of the approaches adopted in
different regions of the United Kingdom (paragraph 19 of the judgment)
raises doubts about the necessity of the measures taken in London.
Undoubtedly the Convention does not compel the Contracting States to
pass uniform legislation for all the territory under their
jurisdiction. Nevertheless, it does oblige them to act in such a way
that the level of protection guaranteed by the Convention is
maintained throughout the whole of that territory. In this case it is
difficult to understand why a measure that was not thought necessary
outside England and Wales was deemed to be so in London.
There remains the question whether the application of the contested
measures, which were inappropriate from an objective point of view,
fell within the margin left to the domestic institutions to choose
between different measures having a legitimate aim and to assess their
potential effectualness. In my view, the reply must be negative
because of the clear lack of proportion between that part of the
impression subjected to the said measures and that part whose
circulation was not impeded. Admittedly the result of the action
taken was the punishment of Mr. Handyside in accordance with the law,
but this result does not by itself justify measures that were not apt
to protect the young against the consequences of reading the book.
3. It must follow that the action complained of was not "necessary",
within the meaning of Article 10 para. 2 (art. 10-2), with regard to the
aim pursued. Such a measure is not covered by the exceptions to which
freedom of expression can be subjected, even if the aim is perfectly
legitimate and if the qualification of what is moral in a democratic
society remained within the framework of the State's margin of
appreciation.
The right enshrined in Article 10 para. 1 (art. 10-1) is so valuable for
every democratic society that the criterion of necessity, which, when
combined with other criteria, justifies an exception to the principle,
must be examined from every aspect suggested by the circumstances.
It is only for this reason that I have regretfully voted against
paragraph 1 of the operative provisions. As for paragraph 2,
concerning Article 1 of Protocol No. 1 (P1-1) and two other Articles,
I have rejoined the majority as I was bound by the prior decision on
Article 10 (art. 10) and, on this basis, was quite able to accept the
Court's reasons.
SEPARATE OPINION OF JUDGE ZEKIA
The Court, in arriving at the conclusion that Article 1 of
Protocol No. 1 (P1-1) has not been contravened by the forfeiture and
destruction of the matrix and copies of the "Little Red Schoolbook",
in paragraph 63 stated the following:
"63. The forfeiture and destruction of the Schoolbook, on the other
hand, permanently deprived the applicant of the ownership of certain
possessions. However, these measures were authorised by the second
paragraph of Article 1 of Protocol No. 1 (P1-1), interpreted in the
light of the principle of law, common to the Contracting States,
whereunder items whose use has been lawfully adjudged illicit and
dangerous to the general interest are forfeited with a view to
destruction."
In considering the legality of the seizure of the matrix and of
hundreds of copies of the Schoolbook, which took place on 31 March and
1 April 1971, I concede that the second paragraph of Article 1 of
Protocol No. 1 (P1-1) is relevant. The said paragraph (P1-1) speaks
of the right of a State if necessary for the general interest to
control the use of the property. It deals with the right of a State,
provided the conditions stated therein have been complied with, to
interfere with the possessory rights of the owner who is at liberty to
make use of his property in any way he likes as long as such usage
does not go against the law.
The seizure under review was made in pursuance of a warrant issued by
a judge under section 3 of the "Obscene Publications Acts 1959/1964".
The object of a seizure might very well be to prevent the commission
or the furtherance of an offence connected with the protection of
morals; it might also be to secure an article for its being produced
before the court as an exhibit or even as "corpus delicti". Such an
article may constitute the subject-matter of the prosecution and
therefore there is nothing wrong in its seizure by an authorised
person.
The English court on 1 July 1971, applying the relevant provision of
the aforesaid Acts after the completion of the trial, ordered the
forfeiture of the matrix and books already seized. The order was
confirmed by the appeal court on 29 October 1971 and the books and
articles already forfeited were destroyed.
In ascertaining the legality of the order of forfeiture and the
destruction of the items involved, in my view, the first paragraph of
Article 1 of Protocol No. 1 (P1-1) fits in more precisely than any
other paragraph of the Protocol. The first paragraph relates to
deprivation of possession. Surely the forfeiture and destruction of
an article owned by somebody else amount to deprivation of possession
of such owner. Coming to the other requirements prescribed for the
legality of such deprivation; the enabling Acts empowering forfeiture
and destruction are admittedly not incompatible with relevant
provisions of the Convention. Protection of morals is undoubtedly of
public interest and the conditions set out in the aforesaid Acts for
ordering forfeiture and destruction have been observed.
I consider it more appropriate therefore to base the legality of the
order of forfeiture and destruction complained of on the first
paragraph of Article 1 of Protocol No. 1 (P1-1). I am content in
rendering my interpretation to confine myself to the wording of the
text of the first paragraph and to attach the ordinary meaning to the
words used therein.