Judgments - Director of Public Prosecutions (Appellant) v. Collins (Respondent)

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    19.  The magistrates' court found (para 3 of the case stated) that one member of the staff of Mr David Taylor MP who listened to the messages on his answering machine was upset by the language used, but another was not. A third found it depressing. Mr Taylor was not personally offended but was concerned about the possible effect on his staff. The court expressed its conclusion in paragraph 9 of the case stated:

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

    20.  In the Divisional Court Sedley LJ, with whom Mitting J agreed, expressed his opinion in paragraph 12 of his judgment in the following terms:

    "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: Miss Harrison 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 justices did not express any view on whether a reasonable person belonging to any of the ethnic minorities to whom the respondent referred in his telephone calls would find the terms used grossly offensive.

    21.  I respectfully agree with the conclusion expressed by my noble and learned friend Lord Bingham of Cornhill in paragraph 11 of his opinion that it must be proved that the respondent intended his words to be offensive to those to whom they related or be aware that they may be taken to be so. I also agree with his conclusion in paragraph 8 that it can make no difference to criminal liability whether a message is ever actually received or whether the persons who do receive it are offended by it. What matters is whether reasonable persons in our society would find it grossly offensive.

    22.  These conclusions are sufficient to answer the certified question. It remains to apply the principles to the facts of the present case and the findings of the magistrates' court. I felt quite considerable doubt during the argument of this appeal whether the House would be justified in reversing the decision of the magistrates' court that the reasonable person would not find the terms of the messages to be grossly offensive, bearing in mind that the principle to which I have referred, that a tribunal of fact must be left to exercise its judgment on such matters without undue interference. Two factors have, however, persuaded me that your Lordships would be right to reverse its decision. First, it appears that the justices may have placed some weight on the reaction of the actual listeners to the messages, rather than considering the reactions of reasonable members of society in general. Secondly, it was conceded by the respondent's counsel in the Divisional Court that a member of a relevant ethnic minority who heard the messages would have found them grossly offensive. If one accepts the correctness of that concession, as I believe one should, then one cannot easily escape the conclusion that the messages would be regarded as grossly offensive by reasonable persons in general, judged by the standards of an open and just multiracial society. The terms used were opprobrious and insulting, and not accidentally so. I am satisfied that reasonable citizens, not only members of the ethnic minorities referred to by the terms, would find them grossly offensive.

    23.  I accordingly agree with your Lordships that we are entitled to reach a different conclusion from the courts below. I would allow the appeal and declare that the respondent should have been convicted of the offence charged, while making no further order.

LORD BROWN OF EATON-UNDER-HEYWOOD

My Lords,

    24.  I have had the advantage of reading in draft the speeches of my noble and learned friends, Lord Bingham of Cornhill and Lord Carswell and for the reasons they give, with which I agree, I too would allow this appeal.

    25.  I add only this. The contrast between section 127(1)(a) of the 2003 Act—under which the respondent was charged—and section 1 of the Malicious Communications Act 1988 (a contrast struck by Lord Bingham at para 7 of his speech) is crucial to an understanding of the true nature and ambit of liability under section 127(1)(a). Whereas section 127(1)(a) criminalises without more the sending by means of a public electronic communications network of inter alia a message that is grossly offensive, the corresponding part of section 1(1) of the 1988 Act (as amended by section 43(1) of the Criminal Justice and Police Act 2001) provides that:

    "Any person who sends to another person (a) a letter, electronic communication or article of any description which conveys (i) a message which is . . . grossly offensive . . . is guilty of an offence if his purpose, or one of his purposes, in sending it is that it should . . . 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."

    26.  In short, for liability to arise under section 1(1), the sender of the grossly offensive message must intend it to cause distress or anxiety to its immediate or eventual recipient. Not so under section 127(1)(a): the very act of sending the message over the public communications network (ordinarily the public telephone system) constitutes the offence even if it was being communicated to someone who the sender knew would not be in any way offended or distressed by it. Take, for example, the case considered in argument before your Lordships, that of one racist talking on the telephone to another and both using the very language used in the present case. Plainly that would be no offence under the 1988 Act, and no offence, of course, if the conversation took place in the street. But it would constitute an offence under section 127(1)(a) because the speakers would certainly know that the grossly offensive terms used were insulting to those to whom they applied and would intend them to be understood in that sense.

    

 
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