Director of Public Prosecutions (Appellant) v. Collins (Respondent), (2006)
 UKHL 40
from  EWHC 1308 (Admin)
THE LORDS OF APPEAL
judgment IN THE CAUSE
Director of Public Prosecutions (Appellant)
Lord Bingham of Cornhill
Lord Nicholls of
Baroness Hale of Richmond
Lord Brown of
Crown Prosecution Service)
Frances Oldham QC
(Instructed by Mander
22 June 2006
19 July 2006
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Director of Public Prosecutions (Appellant) v. Collins (Respondent)
 UKHL 40
LORD BINGHAM OF CORNHILL
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
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.
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 The information issued against the respondent was formally defective, since section 43(1) of the 1984 Act was superseded by section 127(1)(a) of the 2003 Act in the course of the two-year period charged and the information was duplicitous.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.
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:
The conversations and messages left were 'offensive' but not 'grossly' offensive. A reasonable person would not find the terms used to be grossly offensive.
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:
4. I am bound to say that my first reaction to the question was that if these messages were offensive, it was not possible in a decent society to find that they were less than grossly offensive. One has only to visualise having to explain and justify the making of the material distinction to a black person or to one of Asian origin in order to appreciate its invidiousness.
5. But for much the same reason, I can understand the dilemma in which the justices found themselves. In order to interfere as little as possible with freedom of expression, Parliament has criminalised only grossly offensive messages. To have found the respondent's messages to be inoffensive would have been extraordinary: hence the justices' initial finding. But some added value had to be given to the word 'grossly' and the question is whether the justices, despite what I have said about the character of the respondent's language, were entitled in the particular circumstances of the case to find that this additional criterion was not met.
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:
9. This is why it is the message, not its content, which is the basic ingredient of the statutory offence. The same content may be menacing or grossly offensive in one message and innocuous in another. As was pointed out in argument, counsel in the present case are unlikely to have exposed themselves to prosecution by discussing its facts on the telephone. A script writer e-mailing his or her director about dialogue for a new film is not likely to fall foul of the law, however intrinsically menacing or offensive the text they are discussing. In its context, such a message threatens nobody and can offend nobody. Here, as elsewhere, context is everything.
The Lord Justice then considered obscene...
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