Alison Chabloz v Crown Prosecution Service
| Jurisdiction | England & Wales |
| Judge | Lord Justice Coulson,Mrs Justice Cheema-Grubb |
| Judgment Date | 31 October 2019 |
| Neutral Citation | [2019] EWHC 3094 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | No. CO/1016/2019 |
| Date | 31 October 2019 |
[2019] EWHC 3094 (Admin)
Lord Justice Coulson
Mrs Justice Cheema-Grubb DBE
No. CO/1016/2019
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Mr A Davies (instructed by TV Edwards) appeared on behalf of the Applicant.
Mr J Mulholland QC (instructed by the Crown Prosecution Service) appeared on behalf of the Respondent.
Background
On 25 May 2018 at Westminster Magistrates' Court, the applicant, Miss Alison Chabloz, was convicted of three offences under section 127(1)(a) and (b) of the Communications Act 2003. She appealed her convictions to Southwark Crown Court, but on 13 February 2019 her appeal was dismissed by His Honour Judge Hehir and Mrs Meena Rego JP. Judge Hehir produced a detailed written ruling explaining that decision, which was dated 11 February.
After that, things got into something of a procedural muddle. The applicant sought to appeal by way of case stated, and initially it appears that (without seeking submissions from the respondent) the judge thought this was the appropriate procedure. An appeal by way of case stated was commenced in March 2019. However, following a hearing in May concerned with how the matter should proceed, the judge refused to state a case and indicated that the proper course was for the applicant to seek permission to judicially review the written ruling in accordance with the practice set out in Sunworld Limited v Hammersmith and Fulham LBC [2000] 1 WLR 2102. No such application has ever formally been made, although written grounds for judicial review were produced in September 2019.
The confusion has not stopped there. There were a number of defects in the original application to appeal by way of case stated: for example, the respondent to the appeal was originally Southwark Crown Court, and the CPS was not served. By an order made by the Administrative Court of its own initiative on 27 March 2019, which sought to remedy some of these errors, the CPS was substituted as the respondent.
On 19 August 2019, Sir Wyn Williams made appropriately tart comments about how this case had “become a procedural nightmare”, and indicated the need for one overarching hearing to deal with all issues. He set out directions for the parties to follow to achieve that. The parties have not complied with all those directions.
However, at the hearing today, namely 31 October 2019, both parties were anxious for the court to go ahead to deal with the substantive issues. We have accepted that invitation on the following basis. We treat the application before us as an application for judicial review in accordance with Sunworld, because there was a written ruling which we think obviated the need for the more cumbersome “case stated” mechanism. We waived the need for an acknowledgement of service, even though it would have been helpful to see how the CPS put their case at an earlier stage. We extended the necessary time for both parties following the failure to comply with all of the directions of Sir Wyn Williams. Finally, we ruled that, although this is an application for judicial review and the respondent would usually therefore be the court (with the CPS as an interested party), the respondent can remain the CPS because of the written consent of HMCTS.
The issues
Section 127(1) of the Communications Act 2003 states as follows:
“(1) A person is guilty of an offence if he—
(a) sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or
(b) causes any such message or matter to be so sent.”
The first two charges against the applicant in the present case were that on or about 28 September 2016, contrary to section 127(1)(b), she had caused to be sent by means of a public electronic communications network, namely the internet, a message or matter that was grossly offensive, being a hyperlink on her blog to two performances of her antisemitic songs entitled “Nemo's Antisemitic Universe” and “(((Survivors)))”. These songs had been performed by the applicant four days earlier at a meeting of a right-wing organisation called the London Forum at the Grosvenor Hotel in London. The performances had been video-recorded and then uploaded onto YouTube.
The applicant had not been involved in the uploading, but she had a free account with wordpress.com and had been allocated a subdomain entitled
“tellmemorelies.wordpress.com”, a blog which allowed her to publish and manage multimedia content. On this blog site the applicant informed those looking at the site that she had performed the songs, and pasted a hyperlink which connected with the YouTube site and allowed immediate streaming of the London Forum video of her performances.
The third charge concerned section 127(1)(a). The applicant accepted that on 2 September 2017 she had uploaded the video of her performing another song called “I like the story as it is — SATIRE!” onto the YouTube website. This song was grossly offensive for the same reasons.
In respect of the first two charges, the applicant originally took a whole raft of points, first before the district judge and then before Judge Hehir. The only one of those that survives to this court (Issue 1) is the submission that the posting of a hyperlink did not ‘cause an offensive message or other matter to be sent’. The submission is that the posting of the hyperlink was a neutral act on the part of the applicant.
In relation to the third charge, the only issue that remains is the submission that a communication cannot occur with an inanimate object, and that uploading the video to the YouTube server, located in a bunker in California, could not amount to a communication (Issue 2).
CollinsandChambers
In my view, these issues fall to be considered primarily by reference to two well-known English decisions, one of the House of Lords and the other of a particularly strong constitution of this Court.
In Director of Public Prosecutions v Collins [2006] 1 WLR 2223, the defendant telephoned his MP and spoke directly to him or members of his staff, or left messages on an answering machine, referring to ethnic minorities in highly derogatory terms. Both the magistrates and the Administrative Court dismissed the charges, in part on the basis that none of those with whom the defendant interacted or who had received the messages were from the ethnic backgrounds of those abused and were not grossly offended by the language used.
The House of Lords allowed the appeal. They held that the purpose of section 127(1) was not to protect people against the receipt of unsolicited messages but to prohibit the use of a service provided and funded by the public and for the benefit of the public, for the transmission of communications which contravened the basic standards of society. The actus reus of the offence was the sending of the message of the proscribed character by the defined means. The House of Lords also stressed that the offence was complete when the message was sent, and it made no difference that the message was never accessed by anyone, always provided that there was an intention to insult those to whom the message related.
Relevant paragraphs of the speech of Lord Bingham include:
“7. This brief summary of the relevant legislation suggests two conclusions. First, the object of section 127(1)(a) and its predecessor sections is not to protect people against receipt of unsolicited messages which they may find seriously objectionable. That object is addressed in section 1 of the Malicious Communications Act 1988, which does not require that messages shall, to be proscribed, have been sent by post, or telephone, or public electronic communications network. The purpose of the legislation which culminates in section 127(1)(a) was to prohibit the use of a service provided and funded by the public for the benefit of the public for the transmission of communications which contravene the basic standards of our society. A letter dropped through the letterbox may be grossly offensive, obscene, indecent or menacing, and may well be covered by section 1 of the 1988 Act, but it does not fall within the legislation now under consideration.
8. Secondly, it is plain from the terms of section 127(1)(a), as of its predecessor sections, that the proscribed act, the actus reus of the offence, is the sending of a message of the proscribed character by the defined means. The offence is complete when the message is sent. Thus it can make no difference that the message is never received, for example because a recorded message is erased before anyone listens to it. Nor, with respect, can the criminality of a defendant's conduct depend on whether a message is received by A, who for any reason is deeply offended, or B, who is not. On such...
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