Director of Public Prosecutions v Collins

Whether a message is grossly offensive under section 127 of the Communications Act 2003 depends on its content, the circumstances and context of transmission, and the standards of an open and just multiracial society. The expression has no special legal meaning. The question is for the magistrates to apply to the facts. The recipient’s likely or intended reaction may be important, particularly where the message is unsolicited. The statutory offence concerns the sending of the message in its context, rather than its content considered in isolation. Parliament criminalised only grossly offensive messages, so the word “grossly” must be given independent effect.

The respondent made repeated telephone calls and left messages for the constituency office of a Member of Parliament. Some messages contained racial abuse. He was charged under section 43(1) of the Telecommunications Act 1984 and section 127 of the Communications Act 2003, although the information covered an extended period and did not distinguish between the statutory regimes.

The Leicester Justices found the messages offensive but acquitted the respondent, deciding that a reasonable person would not regard them as grossly offensive. The prosecution appealed by way of case stated. The issue was whether the justices were entitled to reach that conclusion.

1. Appeal dismissed. The Leicester Justices were entitled to conclude that the messages, although offensive, were not grossly offensive.
2. Section 127(1) of the Communications Act 2003 criminalises the sending of a message that is grossly offensive, rather than offensive language in the abstract. The same words may be grossly offensive in one message and innocuous in another. Context is therefore essential.
3. “Grossly offensive” is an ordinary English phrase with no special legal content. Applying Brutus v Cozens [1973] AC 854, the question is for the justices to apply to the facts as found. They must assess the message by the standards of an open and just multiracial society.
4. The relevant assessment may include the message’s content, the circumstances in which it was sent, Parliament’s objective of protecting people from unsolicited messages which they may find seriously objectionable, and the intended or likely effect on the recipient. The fact that the respondent was addressing his Member of Parliament and that no recipient was shown to have been a member of an ethnic minority were matters the justices were entitled to consider.
5. The court noted, but did not resolve, the different problems posed by the statutory references to menacing, obscene and indecent messages. A menacing message ordinarily involves conveying a threat and the intended or likely effect on the recipient may be central. Obscenity and indecency have historically been treated as matters of objective fact judged by contemporary standards of decency.

• Leicester Justices: acquitted the respondent on 4 October 2004, finding that the messages were offensive but not grossly offensive.
• High Court (Administrative Court): on appeal by case stated, held that the justices were entitled to reach that conclusion and dismissed the appeal.