DPP v Collins

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeBARONESS HALE OF RICHMOND,LORD NICHOLLS OF BIRKENHEAD,LORD BROWN OF EATON-UNDER-HEYWOOD,LORD BINGHAM OF CORNHILL,LORD CARSWELL
Judgment Date19 July 2006
Neutral Citation[2006] UKHL 40
Date19 July 2006

[2006] UKHL 40

HOUSE OF LORDS

Appellate Committee

Lord Bingham of Cornhill

Lord Nicholls of Birkenhead

Baroness Hale of Richmond

Lord Carswell

Lord Brown of Eaton-under-Heywood

Director of Public Prosecutions
(Appellant)
and
Collins
(Respondent)

Appellants:

David Perry

Louis Mabley

(Instructed by Crown Prosecution Service)

Respondents:

Frances Oldham QC

Esther Harrison

(Instructed by Mander Cruikshank)

LORD BINGHAM OF CORNHILL

My Lords,

1

By section 127(1)(a) of the Communications Act 2003 it is an offence to send a message that is grossly offensive by means of a public electronic communications network. In this appeal by the Director of Public Prosecutions, the House is asked to consider the meaning and application of that provision.

The facts and the proceedings

2

The relevant facts are simple and (save in one important respect) undisputed. The respondent, a man now aged 61, made a number of telephone calls over the two years from January 2002 - January 2004 to the constituency and Westminster offices of Mr David Taylor, the Member of Parliament for North West Leicestershire, whose constituent the respondent was. On some occasions he spoke to a member of Mr Taylor's staff; on others he left recorded messages, to which members of staff and Mr Taylor himself later listened. In these telephone calls and recorded messages the respondent, who held strong views on immigration and asylum policy and the provision of public support to immigrants and applicants for asylum, ranted and shouted and made reference to "Wogs", "Pakis", "Black bastards" and (according to the statement of facts agreed between the parties for purposes of this appeal but not the case stated by the Justices) "Niggers". Some of those who received the calls and heard the messages described themselves as shocked, alarmed and depressed by the respondent's language.

3

The respondent was charged with sending messages of a grossly offensive, obscene or menacing character by means of a public telecommunications system between 1 January 2002 and 6 January 2004, contrary to section 43(1) of the Telecommunications Act 1984. The information issued against the respondent was formally defective, since section 43(1) of the 1984 Act was superseded by section 127(1)(a) of the 2003 Act in the course of the two-year period charged and the information was duplicitous. But no objection has at any time been taken on these grounds. It has been agreed to treat section 127(1)(a) as if it had been effective throughout the relevant period, and to treat the charge as one of sending messages that were grossly offensive.

4

The respondent pleaded not guilty and following a trial on 4 October 2004 Leicestershire Justices dismissed the charge. In a case stated for the opinion of the High Court the Justices gave their reasons. They found that the racist terms used by the respondent sprang from his obvious frustration at the way his concerns were being handled. They concluded:

"The conversations and messages left were 'offensive' but not 'grossly' offensive. A reasonable person would not find the terms used to be grossly offensive."

5

On the Director's appeal to the Queen's Bench Divisional Court the leading judgment was given extempore after a brief argument by Sedley LJ, with whom Mitting J agreed: [2005] EWHC 1308 (Admin). In paras 4-5 of his judgment Sedley LJ said:

"4. I am bound to say that my first reaction to the question was that if these messages were offensive, it was not possible in a decent society to find that they were less than grossly offensive. One has only to visualise having to explain and justify the making of the material distinction to a black person or to one of Asian origin in order to appreciate its invidiousness.

5. But for much the same reason, I can understand the dilemma in which the justices found themselves. In order to interfere as little as possible with freedom of expression, Parliament has criminalised only grossly offensive messages. To have found the respondent's messages to be inoffensive would have been extraordinary: hence the justices' initial finding. But some added value had to be given to the word 'grossly' and the question is whether the justices, despite what I have said about the character of the respondent's language, were entitled in the particular circumstances of the case to find that this additional criterion was not met."

He concluded that the Justices had been entitled to find as they had. He referred to section 127(1)(a) of the 2003 Act and (which the parties had not) the Human Rights Act 1998, suggesting that the reason for criminalising certain messages sent by post, telephone or public electronic communications network was to protect people against receipt of unsolicited messages which they might find seriously objectionable. Thus the legislation struck a balance between the respect for private life enjoined by article 8 and the right of free expression protected by article 10. He continued, in para 9 of his judgment:

"9. This is why it is the message, not its content, which is the basic ingredient of the statutory offence. The same content may be menacing or grossly offensive in one message and innocuous in another. As was pointed out in argument, counsel in the present case are unlikely to have exposed themselves to prosecution by discussing its facts on the telephone. A script writer e-mailing his or her director about dialogue for a new film is not likely to fall foul of the law, however intrinsically menacing or offensive the text they are discussing. In its context, such a message threatens nobody and can offend nobody. Here, as elsewhere, context is everything."

The Lord Justice then considered obscene, indecent, and menacing messages and expressed his conclusions in paras 11-12:

"11. If (as I will assume) these are the respective meanings of menacing, obscene and indecent messages in the communications legislation, the category of grossly offensive messages can be seen to lie somewhere near the centre of the spectrum. What is offensive has to be judged (very much as the justices, by considering the reaction of reasonable people, judged it) by the standards of an open and just multi-racial society. So too, therefore, what is grossly offensive, an ordinary English phrase with no special legal content, which on first principles (see Brutus v Cozens [1973] AC 854) it is for the justices to apply to the facts as they find them. Whether a telephone message falls into this category has to depend not only on its content but on the circumstances in which the message has been sent and, at least as background, on Parliament's objective in making the sending of certain messages a crime.

12. The respondent had no idea, and evidently did not care, whether the person he was addressing or who would pick up his recorded message would be personally offended - grossly offended - by his abusive and intemperate language. It was his good fortune that none was, but this was nevertheless a fact which the justices were entitled to take into account. So was the fact that it was his Member of Parliament to whom he was trying to address his opinions. Had the respondent nevertheless found himself speaking on any of his calls to a member of an ethnic minority, it might well have been impossible, however stoically the hearer might have brushed it aside, to avoid the conclusion that the message was grossly offensive: [counsel for the defendant] concedes as much. Such a conclusion would be loyal to Parliament's essential objective of protecting people from being involuntarily subjected to grossly offensive messages. It would also have to take account, however, of the fact that it is not every transmission of grossly offensive language which is punishable, but only messages which, in their particular circumstances and context, are to be regarded in the wider society which the justices represent as grossly offensive."

The legislation

6

Section 127 of the 2003 Act, so far as material, provides:

"127. Improper use of public electronic communications network

  • (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.

  • (2) A person is guilty of an offence if, for the purpose of causing annoyance, inconvenience or needless anxiety to another, he?

    • (a) sends by means of a public electronic communications network, a message that he knows to be false,

    • (b) causes such a message to be sent; or

    • (c) persistently makes use of a public electronic communications network.

  • (3) A person guilty of an offence under this section shall be liable, on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale, or to both."

The genealogy of this section may be traced back to section 10(2)(a) of the Post Office (Amendment) Act 1935, which made it an offence to send any message by telephone which is grossly offensive or of an indecent, obscene or menacing character. That subsection was reproduced with no change save of punctuation in section 66(a) of the Post Office Act 1953. It was again reproduced in section 78 of the Post Office Act 1969, save that "by means of a public telecommunication service" was substituted for "by telephone" and "any message" was changed to "a message or other matter". Section 78 was elaborated but substantially repeated in section 49(1)(a) of the British Telecommunications Act 1981 and was re-enacted (save for the substitution of "system" for "service") in section 43(1)(a) of the Telecommunications Act 1984. Section 43(1)(a) was in the same terms as section 127(1)(a) of ...

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