Reference:  EWHC 237 (Admin);  1 WLR 276;  2 AllER 1012;  2 CrAppR 5;  HRLR 17; (2007) CrimLR 729; The Times, 28 Feb 2007
Court: Queen's Bench Division (Administrative Court)
Judge: Dyson LJ and Stanley Burnton J
Date of judgment: 15 Feb 2007
Summary: Criminal law - s.1 Malicious Communications Act 1988 - Sending indecent or grossly offensive articles with purpose of causing distress or anxiety - Freedom of expression - Freedom of thought, conscience and religion - Articles 9 and 10, European Convention on Human Rights - Political or educational intent - Whether images of aborted foetuses 'indecent or grossly offensive'
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Instructing Solicitors: Mark Williams Associates for the Claimant; DPP for the Defendant
C was an anti-abortion campaigner who sent photographs of aborted foetuses to three pharmacies that sold the morning-after pill. She was convicted of offences contrary to the Malicious Communications Act s.1 for sending articles that were indecent or grossly offensive with the purpose of causing distress or anxiety to the recipients.
C appealed, contending that (1) the Act does not apply to political or educational communications; (2) the images were not indecent or grossly offensive; (3) she had intended not to cause distress or anxiety but to make a lawful protest and to educate as to the effects of the morning-after pill; and (4) the conviction breached her rights to freedom of expression and freedom of religion.
(1) Whether the Malicious Communications Act applied to communications that were political or educational;
(2) Whether the images were indecent or grossly offensive;
(3) Whether one of C’s purposes in sending the photographs had been to cause distress or anxiety to the recipients;
(4) Whether her conviction breached her Article 10 right to freedom of expression;
(5) Whether her conviction breached her Article 9 right to freedom of thought, conscience and religion.
(1) The Act applied to these communications;
(2) It was impossible to say that no reasonable tribunal could have concluded that the images were indecent or grossly offensive;
(3) The Court was entitled to find that C had intended to cause distress and anxiety;
(4) It had been convincingly shown that C’s conviction was proportionate to the legitimate aim pursued and was necessary in a democratic society. Her right to express her views did not justify the distress and anxiety she intended to cause those who received the photographs. They had the right not to receive such material. It was significant that they were in no position to influence public debate. The most that could have been achieved was that three pharmacies may have stopped selling the ‘morning after pill’, which would have made no contribution to public debate on abortion.
(5) Religious expression was of no higher order than secular expression. Art 9 therefore added nothing to the appeal under Art 10.
Dyson LJ’s judgment in this unusual case contains a valuable discussion of the qualifications on the right to freedom of expression under Article 10. He held that the relevant ‘rights of others’ under Article 10(2) included the right not to receive grossly offensive material intended to distress, and that this right subsisted in the workplace as well as in the home.
Had C repeated her actions the pharmacies may have been able to bring a claim under the Protection from Harassment Act, but for these individual acts the criminal law was their only recourse.