House of Lords
|Session 2005 - 06|
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Director of Public Prosecutions (Appellant) v. Collins (Respondent)
LORD BINGHAM OF CORNHILL
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 The information issued against the respondent was formally defective, since section 43(1) of the 1984 Act was superseded by section 127(1)(a) of the 2003 Act in the course of the two-year period charged and the information was duplicitous.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:
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:  EWHC 1308 (Admin). In paras 4-5 of his judgment Sedley LJ said:
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:
The Lord Justice then considered obscene, indecent, and menacing messages and expressed his conclusions in paras 11-12:
6. Section 127 of the 2003 Act, so far as material, provides:
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 the 2003 Act, save that it referred to "a public telecommunication system" and not (as in section 127(1)(a)) to a "public electronic communications network". Sections 11(1)(b) of the Post Office Act 1953 and 85(3) of the Postal Services Act 2000 made it an offence to send certain proscribed articles by post.
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 an approach criminal liability would turn on an unforeseeable contingency. The respondent did not seek to support this approach.
9. The parties agreed with the rulings of the Divisional Court that it is for the Justices to determine as a question of fact whether a message is grossly offensive, that in making this determination the Justices must apply the standards of an open and just multi-racial society, and that the words must be judged taking account of their context and all relevant circumstances. I would agree also. Usages and sensitivities may change over time. Language otherwise insulting may be used in an unpejorative, even affectionate, way, or may be adopted as a badge of honour ("Old Contemptibles"). There can be no yardstick of gross offensiveness otherwise than by the application of reasonably enlightened, but not perfectionist, contemporary standards to the particular message sent in its particular context. The test is whether a message is couched in terms liable to cause gross offence to those to whom it relates.
10. In contrast with section 127(2)(a) and its predecessor subsections, which require proof of an unlawful purpose and a degree of knowledge, section 127(1)(a) provides no explicit guidance on the state of mind which must be proved against a defendant to establish an offence against the subsection. What, if anything, must be proved beyond an intention to sent the message in question? Mr Perry, for the Director, relying by analogy on section 6(4) of the Public Order Act 1986, suggested that the defendant must intend his words to be grossly offensive to those to whom they relate, or be aware that they may be taken to be so.
11. It is pertinent to recall Lord Reid's observations in Sweet v Parsley  AC 132, 148:
This passage is relevant here, since Parliament cannot have intended to criminalise the conduct of a person using language which is, for reasons unknown to him, grossly offensive to those to whom it relates, or which may even be thought, however wrongly, to represent a polite or acceptable usage. On the other hand, a culpable state of mind will ordinarily be found where a message is couched in terms showing an intention to insult those to whom the message relates or giving rise to the inference that a risk of doing so must have been recognised by the sender. The same will be true where facts known to the sender of a message about an intended recipient render the message peculiarly offensive to that recipient, or likely to be so, whether or not the message in fact reaches the recipient. I would accept Mr Perry's submission.
12. In seeking to uphold the decisions below in the respondent's favour, Miss Oldham QC relied on the context in which the messages were sent, stressing that they were sent by him to his MP seeking redress of his grievances as constituent and taxpayer. This is undoubtedly a relevant fact. The respondent was entitled to make his views known, and entitled to express them strongly. The question is whether, in doing so, he used language which is beyond the pale of what is tolerable in our society.
13. The Justices thought not. A decision of justices on a matter of this kind is not to be disturbed at all readily, as the Divisional Court rightly recognised. But some at least of the language used by the respondent was language which can only have been chosen because of its highly abusive, insulting, pejorative, offensive character. There was nothing in the content or tenor of these messages to soften or mitigate the effect of this language in any way. Differing from the courts below with reluctance, but ultimately without hesitation, I conclude that the respondent's messages were grossly offensive and would be found by a reasonable person to be so. Since they were sent by the respondent by means of a public electronic communications network they fall within the section. It follows that the respondent should have been convicted.
14. Miss Oldham did not contend that this conclusion would be inconsistent with article 10 of the European Convention, given effect by the Human Rights Act 1998, and she was right not to do so. Section 127(1)(a) does of course interfere with a person's right to freedom of expression. But it is a restriction clearly prescribed by statute. It is directed to a legitimate objective, preventing the use of a public electronic communications network for attacking the reputations and rights of others. It goes no further than is necessary in a democratic society to achieve that end. Effect must also be given to article 17 of the Convention, as was held in Norwood v United Kingdom (2004) 40 EHRR SE 111.
15. For these reasons, and those given by my noble and learned friends Lord Carswell and Lord Brown of Eaton-under-Heywood, I would accordingly allow the Director's appeal. At an earlier stage he undertook to the respondent that he would not, if his appeal succeeded, seek remission of the case to the magistrates' court. There will therefore be no further order.
LORD NICHOLLS OF BIRKENHEAD
16. I have had the advantage of reading in draft the speech of my noble and learned friend Lord Bingham of Cornhill. For the reasons he gives, with which I agree, I too would allow this appeal.
BARONESS HALE OF RICHMOND
17. For the reasons given in the opinion of my noble and learned friend Lord Bingham of Cornhill, with which I agree, I too would allow this appeal but make no further order.
18. The reports of cases before appellate tribunals are strewn with instances in which the courts have reminded themselves of the importance of resisting the temptation to interfere too lightly with the findings of a lower court to which a decision has been entrusted, and have then proceeded to yield to that very temptation. The magistrates' court in this case was given the task of determining whether an expression or other matter sent by means of a public electronic communication was grossly offensive in the eyes of reasonable people, judged, as Sedley LJ put it (para 11 of his judgment in the Divisional Court) by the standards of an open and just multiracial society. The justices who sit in the magistrates' court are people who are expected to apply the standards of today's society to determination of such issues. It is of importance that their determinations should not be upset lightly. Appellate tribunals should pay more than lip service to that principle and when they do reverse them they should be clear on what basis they do so: cf Brutus v Cozens  AC 854, 862-864.