Reference:  EWHC 1308 (Admin);  1 WLR 308;  3 All ER 326; (2005) 2 CrAppR 39; (2005) CrimLR 794
Court: Queen's Bench Division
Judge: Sedley LJ and Mitting J
Date of judgment: 23 Jun 2005
Summary: Criminal law – Telecommunications – Grossly offensive message – Test for determining whether message grossly offensive – s.127(1) Communications Act 2003
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Instructing Solicitors: CPS for the prosecution; Mander Cruickshank for the defendant.
Mr Collins had 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. Collins 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 Mr Collins on the basis that a reasonable person would consider his messages offensive, but not grossly so. The magistrates’ court referred, at the prosecutor’s request, the question of whether it was wrong to so find.
Whether the magistrates had erred in finding Mr Collins not guilty of the offence.
Finding that the magistrates had not erred:
At least in relation to menacing or grossly offensive messages, it is the message, not its content, that is the basic ingredient of the offence; context is everything (in contrast, obscenity and indecency are treated as matters of objective fact). The content of the message, the circumstances in which it is sent, and Parliament’s intention in making the sending of certain messages a crime (to protect people from being involuntarily subjected to such messages) are all relevant in determining whether a given message is ‘grossly offensive’. Although Mr Collins evidently did not care whether the person receiving his message would be personally and grossly offended by his message, it was his good fortune that none was, and the justices were entitled to take that into account. The fact that he was trying to convey his opinions to an MP was also relevant. The justices were therefore entitled to come to the decision that they arrived at.
A short judgment, which attempts to balance the competing Article 8 and Article 10 rights that informed the statutory provision. It would appear that whether something is grossly offensive depends upon all the circumstances.