arrowsmith v the united kingdom

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N O T E S

Arrowsmith v The United KingdomThe Report of the European Commission on Human Rights in the Arrowsmithcase (7050/75) raises several interesting questions concerning the scope of theprotection of free speech under the European Convention. The applicant, PatArrowsmith, was convicted of offences under sections 1 and 2 of the Incitement toDisaffection Act 1934 for distributing at an army base leaflets advocating thatsoldiers should leave the forces or refuse to serve in Northern Ireland. The Courtof Appeal dismissed her appeal, Lawton LJ characterizing the documents as'mischievous' and 'wicked' and concluding that they constituted 'the clearestincitement to mutiny and desertion' ([1975] QB 678, 684). Miss Arrowsmith thenlodged a petition with the European Commission, principally on the ground thather conviction violated Article 10 of the Convention protecting the right 'toreceive and impart information and ideas without interference by public authority. . . ' The application was held admissible (8 Commission Decisions 123), but onthe merits the Commission (with two members dissenting) has now upheld thecontention of the UK government that the prosecution and conviction should beregarded as a necessary restriction on th e exercise of free speech in the inte rests ofnational security and for the prevention of disorder. It is hardly surprising tha t theCommittee of Ministers agreed with this finding and concluded there had been noviolation of the Convention by the United Kingdom (Resolution DH (79)4,reported together with the Commission's Report).

Quite apart from the freedom of expression issues, which form the main subjectof this note, the argument before the Commission touched on a number of otherlegal points on the interpretation of the Convention. The most important of theseconcerned the application of Article 9, affirming the freedom of conscience andreligion. The majority of the Commission agreed with the government'ssubmission that the applicant's leaflets, although motivated by her pacifist beliefs,could not be treated as a manifestation of those beliefs for the purpose of thisArticle, because they expressed political opinions about a particular situation. It isoften a difficult point whether a constitutionally protected freedom of religion orbelief extends to speech and acts which are influenced by a religious or otherdeeply held conviction. The United States Supreme Court, interpreting the FirstAmendment 'free exercise' of religion clause, has held that it may protect fromregulation religiously based conductunless there is a compelling state interestjustifying the restriction. T hu s, in one of the leading cases, Cantwell v Connecticut310 US 296 (1940), the Court ruled inapplicable a state statute requiring a permitfrom a local official to solicit money for religious causes, because it constituted anunlawful prior restraint on the appellants' 'free exercise' rights. The argument thatthe speech or activity must be an integral part of religious practice and worship

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280 NOTEShas been consistently rejected by the American courts; it seems to be enough thatthe conduct is 'rooted in religious belief (see Burger CJ in Wisconsin v Yoder 406US 205, 215 (1972)). The Commission's majority approach in the Arrowsmithcase perhaps shows a mo re restrictive attitud e to the scope of the conduct w hich isto be protected under Article 9 of the Convention; in this respect it shares theapproach of some national courts in applying this provision, see in particular theDu tch case noted in Yearbook 3 of the Europe an Convention 648.

In view of these problems in determining the scope of conduct to be protectedand also the difficulties in resolving what constitutes a 'religion' (or in somejurisdictions a secular conscientious belief) for this purpose, courts are under-standably generally more willing to entertain arguments that restrictions on thepublication of religious or pacifist literature violate rights to freedom ofexpression. The Commission's Report in the Arrowsmith case is accordinglylargely devoted to determining whether the prosecution under the Incitement toDisaffection Act wa s a justifiable re striction und er Article 10(2) on the freedom ofexpression conferred by the first paragraph of that Article. The remainder of thisnote is concerned to challenge its conclusion that it was.

However, before discussing the principal reasons given by the Commission forits conclusion, it is as well to mention briefly an aspect of the case which mightconveivably have influenced its approach. Miss Arrowsmith was prosecuted fordistributing leaflets on an army base, not for making a speech or publishing anarticle advocating refusal by soldiers to serve in Ulster. Might it have beencontended that the distribution of literature amounts to conduct rather thanspeech, and so falls outside the area of Article 10 altogether? The same questionsmay, of course, be raised with regard to similar activities such as the holding ofmeetings and processions or picketing. One passage in the Report might suggestthat the Commission was attracted to this point: 'The Commission recognizesthat freedom of expression constitutes one of the essential foundations of ademocratic society. It finds, however, that the applicant by distributing the leafletshere in question went further than simply to express a political opinion' (para 90).It seems, however, from the context that the Commission was here attempting todraw a line between political speech and incitement to actiona distinctiondiscussed later in this noterather than to place weight on any difference theremay be between pure speech and the act of canvassing. In any case the fact thatthe UK government conceded that Miss Arrowsmith was exercising expressionrights indicates that this point was not really in issue. And this was quite right.The re can be no justification for treatin g canvassing and leafleting differently fromthe publication of literature for this purpose, except that time, manner and placeregulations for the former can be supported on public safety or nuisance grounds;this has for long been the position of the US Supreme Court (see e.g., Schneiderv State 308 US 147 (1939) and Martin v Struthers 319 US 141 (1943)).

The initial steps in the argument leading to the application's dismissal werefirst, to examine whether the 1934 Act was as such a restriction on free speechimposed for one of th e aims set ou t in Article 10(2) of the Convention ('. . .

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NOTES 28lrestrictions or penalties . . . in the interests of national secu rity, territorialinteg rity o r public safety, for the p reven tion of disorder or crim e . . .') andsecondly, to determine whether the prosecution of Miss Arrowsmith on the factswas similarly related to these aims. The Commission had little difficulty inconcluding th at the Incitem ent to Disaffection Act could be justified as a measurewhich ha s as its goal the preservation of national security and territorial integrity,and also the maintenance of order within the forces (see the Engel case, Decisionsof the Court No. 22). The applicant's contention that the Act was ex facie invalidunder the Covention was, therefore, rejected. The Commission clearly took thereasonable view that permissible measures to achieve these goals went beyondthose necessary to protect official secrets and to guard against external invasion.(The applicant's subsidiary argument that the Act was too broad and vague andwas thus incompatible with Article 5 of the Convention, guaranteeing the right toliberty and security of the person, was relatively summarily rejected.)What is much more controversial is the second conclusion that on the facts ofthe case the prosecution was initiated in pursuance of the prescribed aims. MissArrowsmith's case was that she was only expressing her opinions, albeit in aforcible way and to those most intimately concerned, on the undesirability of themilitary presence in Northern Ireland and providing information for soldiers howthey might leave the army. In essence the claim was that to regard the prosecutionas undertaken in pursuit of a permissible restriction on free expression would becompletely to undermine this freedom in its most important spherepoliticaldebate. The Commission, however, here drew a distinction between theexpression of political opinion concerning the situation in Ireland and theencourag emen t of soldiers not to serve there or go absent witho ut leave. But this issurely a distinction without a real difference, reminiscent of the attempts by theUS Supreme Court to distinguish between the abstract advocacy of politicaldoctrine and incitement to action (see e.g., Brandeis J in Whitney v California 247US 357, 376 (1927), and Yates v US 354 US 298 (1957))- As Holmes J put it somemorably in Gitlovi v New York 268 US 662, 673 (1925), 'Every idea is anincitement . . . The only difference between the expression of an opinion and anincitement in the narrower sense is the speaker's enthusiasm for the result'. In themost recent major American case in this area, Brandenberg v Ohio 395 US 444(1969)cited to the Commission in argumentthe line is drawn between on theone hand advocacy of law violation which is to be protected under the FirstAmendment, and on the other the advocacy of imminent lawless action, likely toproduce such action, which may be constitutionally prevented. This maximizesthe protection of free speech in this area and removes the troublesome distinctionbetween pure advocacy and incitement. Had it adopted this approach, theCom mission w ould not have been justified in simply distinguishing betweenpolitical argument and incitement to disaffection. After all, presumably membersof the forces are free to read newspaper articles attacking troop presence in Ulsterand relating the treatment of army deserters in various countries; it is hard then tosee why they should not have access to pamphlets advocating refusal to serve in

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282 NOTESIreland, when such literature would not contain any ideas or information notimplicit in freely available material (see the dissent of Mr. Opsahl, para 5).

This conclusion can be supported by reference to an argument which has beenput forward to justify the special protection afforded free speech (T . Scanlon, 'ATheory of Freedom of Expression', in The Philosophy of Law, ed R. M. Dworkin(Oxford University Press 1977), reprinted from 1 Philosophy and P ub Aff 204(1972)). It proceeds from the premiss that the fundamental autonomy ofindividuals precludes the State from telling them what to believe or hinderingtheir consideration of various courses of action. From this it follows that theremust be general access to ideas and information for the determination of truth,and more relevantly to the Arrowsmith case, the State is not justified in preventingits citizens being exposed to various inducements to act, including incitements todisobey the law. It is one thing to proscribe action, it is another to proscribeadvocacy or incitement to that action. If some soldiers had been persuaded by theargum ents in the leaflets to de sert, this w ould have been their decision; it might belegitimate for the State to punish them, but it could not be right to imposepenalties on those who had urged this course, for in no significant sense wouldthey be responsible for the soldiers' conduct. This view was supported in separatedissents by Mr. Opsahl and Mr. Klecher, both of whom regarded the aim ofinfluencing others who are themselves responsible for their actions as an integralaspect of free speech. Scanlon's argument may also serve to explain the narrowexception to free speech protection stated by the Supreme Court in Brandenberg.Incitement which will probably lead to imminent unlawful action may properly berestricted because the listener or reader may well have had no opportunity toreflect on the merits of the course of action urged on him. To put it another way,in some s ituation s th e persons incited m ay not be regarded as fully responsible fortheir actions and it is legitimate to punish those influencing them.

In opposition to this application of Scanlon's thesis, it may be said thatmembers of the forces have surrendered their autonomy, and consequentlyrestrictions on free speech in this context are politically and legally justifiable.(The same might be said of other groups, e.g. the police and civil servants, andfor different reasons, minors and prisoners.) In the Engel case, the EuropeanCourt of Human Rights recognised that the circumstances of military life couldjustify penalties imposed on servicemen for writing articles which undermineddiscipline. But there may be arguments for tolerating restrictions on speech bymembers of the forces (as in Engel) which do not apply so strongly to speechaddressed to them by civilians; it is far from clear that soldiers have in any sensegiven up their right to receive information and ideas, particularly thosecommunications which attempt to persuade them to change their status. In anyevent the Commission did not really consider the case for insulating members ofthe forces from general political debate. In practice, as already suggested, this goalcould not be completely achieved, for there is no legal means of preventing asoldier from reading material of the kind at issue in Arrowsmith as long as it isaddressed to the general public (see Horridge J's charge to the jury in Bowman

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NOTES 283(1912) 76 JP 271, 272 on the provision in the Incitement to Mutiny Act 1797,com parab le to s. 1 of the 1934 legislation).Th e third question considered by the Comm ission w as whether the prosecutionwas a measure 'necessary in a democratic society' to achieve the goals, inpursu ance of which restriction s on free speech may be justified under Article 10(2).T hi s ph rase h as given th e Co urt som e difficulty in the handful of cases which havebeen referred to it on freedom of expression. In the Handyside case (Decisions ofthe Court No. 24) and the Sunday Times case (Decisions of the Court No. 30) itdeveloped the principle that bodies in the member states have a 'margin ofappreciation' in determining what restrictions are 'necessary', and that the role ofthe Court is to review the exercise of this discretionthough this supervisorypower is not limited to an examination whether the State legislature or court hasacted reasonably and in good faith. In Arrowsmith the Commission accepted theapplicant's argument that a measure was only to be regarded as 'necessary' ifsome test equivalent to the American 'clear and present danger' rule was satisfied.Un der this, restriction s on speech are only justified if there would be a serious riskof significant injury to the State if the speech were not abridged (Dennis v US 341US 494 (1951)).

The 'dear and present danger' test, as any student of American constitutionallaw appreciates, abounds with difficulties (see G. Marshall, ConstitutionalTheory, Oxford Univers ity P ress (1971) 17779). and it is unfo rtuna te th at theCommission has added the concept to the guidelines already formulated by theCourt for applying Article 10(2). One question which has proved troublesome forthe Supreme Court is the level at which the test is to be applied: is the task of thereviewing court to determine whether it was reasonable for the legislature toproscribe a certain type of speech as likely in the abstract to con stitute a clear andpresent danger, or should the court ask itself whether prosecution was justifiableon this ground on the particular facts? The Commission correctly adopted thelatter approach; this is consonant with the Court's jurisprudence and reduces therisk of undue deference to legislative judgement. But it then misapplied the test.

The Commission noted that the Director of Public Prosecutions, whose consentis necessary for prosecution under the 1934 Act, took into account the possibleeffects of the applicant's campaign if it were not stopped, and then concluded thatit was within the authorities' discretion to find that the distribution of the leafletsshould be prevented as a necessary restriction on free speech. But it may beobjected first, that merely to consider possible effects hardly satisfies the 'clear andpresent danger' test in American law (see Brandenberg), and secondly and moreimportantly, it seems incompatible with the European Court's requirement thatthe restriction must meet a 'pressing social need' (see Handyside, para 48). As thedissents point out, there was really no substantial evidence that the UKauthorities ever seriously asked what the likely repercussions of the applicant'sactivities were going to be. On the facts, the Arrowsmith case appearsdistinguishable from an earlier application arising from a prosecution under the1934 Act, which the Commission had ruled manifestly ill-founded and therefore


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284 NOTE8inadmissible: X v United Kingdom (6084/73, 3 Com mission Decisions 62). Therethe leaflets were circulated to troops in Northern Ireland, contained bribes toinduce soldiers to join the IRA and hand over officers and arms, and urgeddisobedience to orders to return fire.

An inference that may be drawn from this Report is that the Commission seemsreluctant to protect freedom of expression against restriction in politicallysensitive cases, although it is in these circumstances that governments are mosttempted to encroach on civil liberties. One would not expect the US SupremeCourt these days to uphold a prosecution on these facts under a statute equivalentto the British Incitement to Disaffection Actthough it must be said that in theFirst World War cases such as Schenk v US 249 US 47 (1919), it refused to quashconvictions for causing insubordination in the forces by the circulation ofdocuments opposing American participation in the war. In any case, whatever theposition in the United States, the European Commission and Court are not, as theUK government submitted in Arrowsmith, institutions comparable to a Statesupreme cou rt. Th eir role is to ensure a minim um degree of protection throug houtthe member states of the rights enshrined in the Convention, rather than toachieve uniformity. Whether the Commission achieved even this limited task inArrowsmith may be doubtful, but at least its Report may be of some comfort tothose hostile to the development of a strong European Bill of Rights.

E. M. BARENDTSt. Catherine's College, Oxford

Contract law reform in New Zealand: the Contractual RemediesAct 1979In passing the Contractual Remedies Act 1979 the New Zealand Parliament has,in the space of sixteen relatively short sections, effected sweeping changes to thegeneral law of contract. The purpose of this note is to provide a brief account ofthe background to the Act, an outline of its most important provisions and someof the writer's thoughts thereon. The Act affects such a large part of the law ofcontract that little more than an introductory survey is possible here.I . B A C K G R O U N D T O T H E A C TThe Act has its origins in the 1967 report of the Contracts and Commercial LawReform Committee on Misrepresentation and Breach of Contract. For a long timethe report seemed to have been shelved. However, in January 1978, the Com-m ittee, presented a further brief report reaffirming its earlier proposals, and on thisoccasion the Government was quick to respond. The Contractual Remedies Billwas introduced into Parliament on 4 October 1978 and, after recess study by the


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