Reference:  UKHL 40;  1 WLR 2223;  4 All ER 602; (2007) 1 CrAppR 5; (2007) CrimLR 98; The Times 21 July 2006
Court: House of Lords
Judge: Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Baroness Hale of Richmond, Lord Carswell, Lord Brown of Eaton-under-Heywood
Date of judgment: 19 Jul 2006
Summary: Criminal law – Telecommunications – Grossly offensive message – s.127(1) Communications Act 2003
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Instructing Solicitors: CPS for the DPP; Mander Cruikshank for C
C telephoned his MP’s constituency office on a number of occasions over a period of more than two years. He would speak to whoever answered the phone, or would leave a message on the answering machine if no one answered. Three people who worked in the office spoke to him or heard his messages. In these conversations and messages, he would often speak of his dislike for “wogs”, “Pakis” and “black bastards”. None of those who heard him were a member of an ethnic minority. One found his language upsetting. C was charged with sending, by means of a public communication system, messages that were grossly offensive or of an obscene character, an offence under s.127(1) Communications Act 2003. Magistrates acquitted C on the basis that a reasonable person would consider his messages offensive, but not grossly so. The Administrative Court upheld the acquittal. The DPP appealed.
What was the correct test for the commission of an offence under s.127(1) of the Communications Act 2003;
Whether C should have been convicted
Allowing the appeal:
S.127(1) was intended to prohibit the use of a public service to transmit communications which contravened basic standards of society. The actus reus was the sending of a message, regardless of whether it was received. It did not matter whether or not the person receiving the message was offended. It was a question of fact in all the circumstances whether a message was grossly offensive, applying the standards of an open and just multi-racial society. The test was whether a message was liable to cause gross offence to those to whom it related. The mens rea was that the defendant must have intended the words to be grossly offensive or be aware that they might be taken to be so. This would ordinarily be found where a message was couched in terms indicating an intention to insult, or where facts known to the sender made the message offensive to the recipient.
C’s messages were grossly offensive and C should have been convicted.
Their Lordships clairified that the purpose of this provision, making it clear that an offence will be committed whenever a public communications service is used to send a message which the sender intends is, or knows might be taken to be, grossly offensive. Their Lordships held that Article 10 was complied with by the mens rea requirement.
C’s case turned on whether his messages were ‘grossly offensive’ to a reasonable person. Their Lordships reluctantly disagreed with the Magistrates, Lord Carswell attributing this to the Magistrates having been influenced by the attitudes of those who heard the message, which was a factor their Lordships held to be irrelevant.