Divisional Court
| Published date | 01 August 2007 |
| Date | 01 August 2007 |
| DOI | http://doi.org/10.1350/jcla.2007.71.4.288 |
| Subject Matter | Divisional Court |
Divisional Court
Malicious Communications Act 1988: Human Rights
Connolly vDPP [2007] EWHC 237 (Admin)
The defendant sent photographs of aborted foetuses to pharmacists who
were selling the ‘morning after pill’. She was convicted by magistrates
of sending indecent or grossly offensive material with the purpose of
causing distress or anxiety, contrary to s. 1 of the Malicious Communica-
tions Act 1988. Her appeal to the Crown Court was dismissed. She
appealed by way of case stated to the Administrative Court, contending
that the pictures were not indecent or grossly offensive and that her
conviction under the 1988 Act was in breach of her rights under Article
9 (freedom of thought, conscience and religion) and Article 10 (freedom
of expression) of the European Convention on Human Rights.
H
ELD
,
DISMISSING THE APPEAL
, the words ‘indecent’ and ‘grossly
offensive’ were ordinary English words. The decision of the lower courts
could only be overturned if it could be shown that no reasonable court
acquainted with the ordinary use of language could have come to the
same conclusion. This was not the case here and, consideration of
the European Convention on Human Rights apart, the offence was
made out.
The conviction could be justified having regard to Article 10 by giving
a heightened meaning to the words ‘grossly offensive’ and ‘indecent’ so
as not to breach Article 10(1) in ways not justified under Article 10(2).
The ‘rights of others’ in Article 10(2) would apply to the people working
in the pharmacies, who had the right not to receive material sent
with the purpose of causing distress or anxiety. The right to express
views did not justify intending to causing distress or anxiety to those
receiving the photographs. The conviction was thus justifiable within
Article 10(2). For the same reasons, the conviction was also justifiable
within Article 9(2).
C
OMMENTARY
The enactment of the Malicious Communications Act 1988 filled a small
but significant gap in criminalising the sending, by letter or other
tangible means (it was later extended to cover electronic forms of
communication—see below), of ‘indecent’ or ‘grossly offensive’ material
where the aim of the sender is to cause distress or anxiety to the
recipient. Its immediate genesis lay in the Law Commission Report
No. 147, Poison Pen Letters (1985), itself an offshoot of earlier Law
Commission work on the various forms of criminal libel. In Working
Paper No. 84, Criminal Libel (1982), the Law Commission (at 192–201)
identified poison pen letters as a form of harm deserving punishment yet
often falling outside the scope of criminal libel and allied offences,
perhaps because the matter was addressed solely to the recipient and
thus not published or because it did not adversely affect a person’s
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