Director of Public Prosecutions v. Collins

The case concerns the meaning and application of section 127(1)(a) of the Communications Act 2003, which makes it an offence to send by means of a public electronic communications network a message that is "grossly offensive". The House held that the actus reus is the sending of such a message by the defined means and that criminal liability does not depend on whether the message is actually received or whether particular recipients are offended.

There is a presumption that Parliament intended some mens rea and therefore, to secure conviction under section 127(1)(a), it must be shown that the sender intended the words to be grossly offensive or was aware that they might be so taken. The standards to be applied are those of a reasonable person in an open and just multiracial society and the context of the message is relevant but did not excuse the respondent's use of opprobrious racial language. Applying those principles the House concluded the messages were grossly offensive and the respondent should have been convicted.

Background and facts:

• The respondent made repeated telephone calls and left recorded messages to his Member of Parliament's constituency and Westminster offices between January 2002 and January 2004. In those calls he used strongly racist and abusive language. Some staff who heard the messages reported feeling shocked, alarmed or depressed.
• The respondent was charged under section 43(1) of the Telecommunications Act 1984 (later superseded by section 127(1)(a) of the Communications Act 2003) with sending messages that were grossly offensive. At trial the magistrates dismissed the charge, finding the messages offensive but not grossly offensive.

Procedural history:

• The Director of Public Prosecutions appealed to the Divisional Court ([2005] EWHC 1308 (Admin)), where Sedley LJ and Mitting J held the justices were entitled to find the messages not grossly offensive. The Director then appealed to the House of Lords.

Issues framed:

1. What is the meaning and scope of "grossly offensive" in section 127(1)(a) of the Communications Act 2003?
2. What mental element (mens rea) if any is required for an offence under section 127(1)(a)?
3. To what extent does context (for example that the recipient was the sender's Member of Parliament) affect whether a message is grossly offensive?
4. Whether the provision is compatible with the Convention right to freedom of expression under article 10 ECHR.

Court's reasoning and conclusions:

• The House emphasised the statutory history tracing section 127(1)(a) from earlier postal and telephony offences and concluded the object of the provision is to protect the integrity of services provided by the public for public benefit by prohibiting transmissions that contravene basic standards of society.
• Actus reus: the offence is complete on sending; it is immaterial whether the message is received or whether particular recipients are offended.
• Mens rea: by applying the presumption in favour of mens rea, the court read into the section that liability requires that the sender intended the message to be grossly offensive or was aware that it might be so understood.
• Standards and context: the assessment is by reference to the reaction of reasonable persons in an open and just multiracial society; context and circumstances are relevant but did not exculpate the respondent whose language was opprobrious and intentionally abusive.
• Convention rights: the restriction on expression was a prescribed and proportionate interference with article 10 rights and article 17 was also engaged; there was no inconsistency with Convention rights.

Relief sought:

• The Director sought to overturn the magistrates' finding and to secure a conviction for sending grossly offensive messages under section 127(1)(a).

Appeal allowed. The House held that under section 127(1)(a) the actus reus is the sending of a message by means of a public electronic communications network that is grossly offensive; criminal liability does not depend on actual receipt or subjective offence of recipients. By presumption of mens rea the sender must have intended the words to be grossly offensive or been aware that they might be so taken. Applying these principles, the respondent's messages were grossly offensive and he should have been convicted.

Magistrates' court (Leicestershire Justices): charge dismissed on 4 October 2004. Queen's Bench Divisional Court: appeal by the Director of Public Prosecutions heard by Sedley LJ and Mitting J, reported at [2005] EWHC 1308 (Admin), where the justices' decision was upheld. House of Lords: appeal allowed [2006] UKHL 40.