Connolly v DPP
| Jurisdiction | England & Wales |
| Judge | Lord Justice Dyson |
| Judgment Date | 15 February 2007 |
| Neutral Citation | [2007] EWHC 237 (Admin) |
| Docket Number | Case No: CO/8492/2006 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 15 February 2007 |
[2007] EWHC 237 (Admin)
Lord Justice Dyson and
Mr Justice Stanley Burnton
Case No: CO/8492/2006
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Paul Diamond (instructed by Messrs Mark Williams Associates ) for the Claimant
Mark Wall QC and Daniel White (instructed by Director of Public Prosecutions) for the Defendant
Hearing dates: 23rd January 2007
This is an appeal by way of case stated from a decision of His Honour Judge Cole sitting with magistrates at Coventry Crown Court on appeal from a decision of the justices for the Metropolitan Borough of Solihull, West Midlands on three informations preferred against Mrs Connolly by the DPP in respect of offences contrary to section 1(1)(b) and (4) of the Malicious Communications Act 1988 ("the 1988 Act").
So far as material, section 1 of the 1988 Act provides:
"(1) Any person who sends to another person—
(a) a letter or other article which conveys—
(i) a threat; or
(ii) information which is false and known or believed to be false by the sender; or
(b) any other article which is, in whole or part, of an indecent or grossly offensive nature,
is guilty of an offence if his purpose, or one of his purposes, in sending it is that it should, so far as falling within paragraph (a) or (b) above, cause distress or anxiety to the recipient or to any other person to whom he intends that it or its contents or nature should be communicated.
…
(4) A person guilty of an offence under this section shall be liable on summary conviction to a fine not exceeding level 4 on the standard scale."
The case against Mrs Connolly was that she had sent to three pharmacists "pictures of an aborted foetus which is (sic) indecent/grossly offensive with the purpose of causing distress or anxiety". On 6 October 2005, she was convicted on all three charges by the justices. Her appeal was dismissed by the Crown Court.
The Crown Court found the following facts:
"5. The appellant during 2005 as alleged in the information, sent to various chemists in Solihull pictures of aborted foetuses. The appellant admitted that she had sent the pictures but maintained that such pictures were not indecent nor grossly offensive and that the purpose of sending them was not to cause distress or anxiety but merely to make a lawful protest and educate against the use of the 'Morning After Pill'.
6. The Appellant is a Christian of the Catholic denomination. She is a practising Christian and regularly attends her local Church. She believes that an unborn Baby is a child of God and abortion is a form of murder. She articulates [sic] the Repeal of the Abortion Act 1967. She believes that deformed foetuses should have additional protection from society.
7. In or about 2004, the Appellant commenced writing to pharmacists with photographs of aborted foetuses- having apparently been urged to do so by a newspaper; she would telephone some of the pharmacies prior to sending photographs to ensure that they stocked 'The Morning After Pill'.
8. All the letters appeared to have been opened by a Supervisor, Manager or Head Pharmacist. A more junior member of staff could open the post, and indeed one particular letter was opened by a member of staff whose relative had recently given birth to a still born child.
9. On the 10 th February 2005, a complaint was received from Olton Pharmacy and the police attended. On 13 th February 2005, the Appellant was arrested and taken to Solihull Police Station for questioning.
10. On the 13 th July 2005, Mrs Connolly entered a plea of 'Not Guilty' at Solihull Magistrates Court. On 6 th October 2005 Mrs Connolly was convicted of these offences contrary to the Malicious Communications Act 1988.
11. We found the following further facts:—
(a) The Appellant on each occasion sent the relevant letters which contained photographs which we found to be both indecent and grossly offensive.
(b) The Appellant sent such indecent/grossly offensive material (intending or with the purpose of) causing distress or anxiety to the recipients.
(c) Recipients of such material were actually offended by such material."
The case stated records the appellant's case in these terms:
" 12. The Appellant's Case
(a) It was submitted on behalf of the Appellant that as current standards are so low the material did not therefore cross the threshold of being indecent or grossly offensive.
(b) That the Malicious Communications Act should not apply to a lawful protest and to find otherwise would be a breach of the European Convention of Human Rights on issues pertaining to freedom of expression and in particular freedom of religious expression."
The following questions have been submitted by the Crown Court to this court:
"a. Does the Malicious Prosecutions Act 1988 apply to the facts of this case;
b. If the answer to question (a) is affirmative i) is the sending of pictures of aborted foetuses objectively 'indecent' or 'grossly offensive' and ii) does the Appellant satisfy the subjective elements of intending to cause distress or anxiety?
c. Are the answers to the above questions affected by Articles 9 and 10 of the European Convention on Human Rights?"
Consideration of the issues without regard to the European Convention on Human Rights ("the Convention")
The genesis of the 1988 Act was the Law Commission Report on Poison Pen Letters Law Com No 147 (1985). The title of the report might give a misleading impression as to its scope. Its purpose was to recommend a new offence for any communication which is grossly offensive or indecent in nature sent for the purpose of causing anxiety or distress. It recommended that purely spoken communications made by one person to another without the intervention of any electrical, mechanical or other devices should not be covered. It noted that it was already an offence to send communications of the defined nature by telephone, telex or telegram. The report also recommended that articles which were grossly offensive or indecent, but which did not convey a message or information, should be subject to the new offence. At para 3.3 of the report, the example was given of an envelope containing human excrement being pushed through the letter-box of a private house. The recommendations of the Law Commission were substantially reflected in the 1988 Act.
Mr Diamond submits that the images sent by Mrs Connolly were neither indecent nor grossly offensive. He goes so far to say that, as a matter of law, a communication cannot be grossly offensive or indecent within the meaning of the 1988 Act if it is political or educational in nature. Alternatively, the adjective "grossly" implies a high threshold of offensiveness which it was not open to the crown court to find was crossed on the facts of this case. As regards indecency, he submits that the images were plainly not indecent: they did not offend against current standards of propriety. He refers to the decision of R v Stanley [1965] 2 QB 327, 333E where Lord Parker CJ sitting in the Court of Criminal Appeal with Marshall and Widgery JJ said:
"This court entirely agrees with what Lord Sands there said. The words "indecent or obscene" convey one idea, namely, offending against the recognised standards of propriety, indecent being at the lower end of the scale and obscene at the upper end of the scale".
In my judgment, the phrase "indecent or grossly offensive" does not bear some special meaning such that communications of a political or educational nature fall outside its ambit. It is quite impossible to extract this limitation from the phrase itself or the context in which it appears in the statute. A person who sends an indecent or grossly offensive communication for a political or educational purpose will not be guilty of the offence unless it is proved that his purpose was also to cause distress or anxiety. In other words, the nature of the communication may shed light on the defendant's mens rea. But I do not see how the fact that a communication is political or educational in nature can have any bearing on whether it is indecent or grossly offensive.
It seems to me that the appellant faces an insuperable obstacle in this part of the case. The words "grossly offensive" and "indecent" are ordinary English words. They are not used in a special sense in section 1 of the 1988 Act. This is an appeal by way of case stated and it can only succeed if the appellant can identify a material error of law. On well established domestic law principles, that means that Mrs Connolly must show that the decision below that the photographs were indecent and grossly offensive was one which no court acquainted with the ordinary use of language could have reached: see per Lord Reid in Cozens v Brutus [1973] AC 854, 861 and Lord Hoffmann in Moyna v Secretary of State for Work and Pensions [2003] 1 WLR 1929 paras 23–25.
We have seen the photographs. They are close-up colour photographs of dead 21 week old foetuses. The face and limbs are clearly visible. One of them is a close-up showing an abortion taking place. They are shocking and disturbing. That is why Mrs Connolly sent them to the pharmacists. In my view, it is impossible to say that no reasonable tribunal could have concluded that these images were grossly offensive within the meaning of section 1 of the 1988 Act. With more hesitation, I would say the same of "indecent". I did not understand Mr Diamond to challenge the court's finding that the photographs were sent for the purpose of causing...
To continue reading
Request your trial
-
Miller v Bull & Others
...the powers of the court: Ghaidan v Godin-Mendoza [2004] UKHL; [2004] 2 AC 557 para 32; Connolly v Director of Public Prosecutions [2007] EWHC 237 (Admin) and the discussion in Lester & Pannick 3ed ed on Human Rights Law and Practice in particular paras 2.3.1 to 88Ms Dehon submitted that ev......
-
R: and Others v Minister for the Cabinet Office and Another
...[2002] 1 AC 45 (prohibition of evidence about sexual behaviour of complainant); R v Lambert [2002] 2 AC 545 (reverse burden of proof) and Connolly v DPP [2007] EWHC 237 (Admin) (scope of section 1 of the Malicious Communications Act 1988). It would not be appropriate to remove an incompatib......
-
Aviva Insurance Ltd v The Secretary of State for Work and Pensions
...a reading is “ possible”, the applicable principles are familiar. The Divisional Court in Connolly v Director of Public Prosecutions [2007] EWHC 237 (Admin) § 17 found it sufficient to refer to the following passage from Lord Nicholls' judgment in Ghaidan: “30. From this it follows that th......
-
Lukaszewski and Others v The District Court in Torun, Poland and Others (No 2)
...as subject to a further implied exception to enable a fair trial under article 6(1), and Connolly v Director of Public Prosecutions [2007] EWHC 237 (Admin), [2008] 1 WLR 276, para 18, where the High Court was prepared to read a statutory prohibition on sending another person certain mater......
-
Offences Involving Communications
...or anxiety to the recipient or people to whom it was intended to be communicated, i.e. a smaller subset of people. In Connolly v DPP [2007] EWHC 237 (Admin), [2007] 2 Cr App R 5, the appellant appealed by way of case stated her convictions for three offences of sending an article or electro......
-
Divisional Court
...Communications Act 1988: Human RightsConnolly vDPP [2007] EWHC 237 (Admin)The defendant sent photographs of aborted foetuses to pharmacists whowere selling the ‘morning after pill’. She was convicted by magistratesof sending indecent or grossly offensive material with the purpose ofcausing ......
-
Table of Cases
...WLR 1833, [2013] 1 All ER 149, [2013] 1 Cr App R 1 98–100, 102–103, 105, 107, 108, 110, 111, 112, 113, 252, 255, 256 Connolly v DPP [2007] EWHC 237 (Admin), [2008] 1 WLR 276, [2007] 2 All ER 1012, [2007] 2 Cr App R 5 106, 107, 255 Cox v Riley (1986) 83 Cr App R 54, [1986] Crim LR 460, QBD 2......
-
Cases: Parts 1, 2, 3, 4
...Raymond) and Others vThe Queen [2006] UKPC 47 137Coard v Attorney-General [2007] UKPC7 218Connolly v DPP [2007] EWHC 237(Admin) 288Coombes v DPP [2006] EWHC 3263(Admin) 200Director of Public Prosecutions v Mullally[2006] EWHC 3448 (Admin), [2006]All ER (D) 49 (Nov) 193DPP v Collins [2006] U......