Director of Public Prosecutions (Appellant) v. Collins (Respondent)

Under Section 127(1)(a) of the Communications Act 2003, the offence is complete when a person intentionally sends a message of the proscribed character through a public electronic communications network. Receipt and the reaction of any actual recipient are immaterial.

Gross offensiveness is judged objectively. The court must apply reasonably enlightened, but not perfectionist, contemporary standards to the message in its context. The question is whether its terms are liable to cause gross offence to those to whom they relate.

The sender must intend the words to be offensive to those persons or recognise the risk that they may be understood in that way. The provision is a proportionate restriction on freedom of expression.

The respondent repeatedly telephoned the constituency and Westminster offices of his Member of Parliament. He used highly abusive racial expressions while complaining about immigration and asylum policy. He was charged with sending grossly offensive messages through a public telecommunications system.

Leicestershire Justices dismissed the charge. They found the messages offensive but not grossly offensive by the standards of a reasonable person. The Divisional Court dismissed the Director's appeal in [2005] EWHC 1308 (Admin), holding that the justices were entitled to consider the messages' context and the reactions of those who heard them.

The Director appealed to the House of Lords. The central issues were the purpose and elements of Section 127(1)(a) of the Communications Act 2003, the appropriate test for gross offensiveness, the required state of mind, and whether the messages satisfied that test.

1. Appeal allowed unanimously. Lord Bingham delivered the leading speech. Lord Nicholls and Baroness Hale agreed with his reasons. Lord Brown agreed with Lord Bingham and Lord Carswell. The House declared that the respondent should have been convicted, but made no further order because the Director had undertaken not to seek remission.

2. Per Lord Bingham, the purpose of Section 127(1)(a) of the Communications Act 2003 is to protect the integrity of a publicly provided communications service. It prohibits use of that service to transmit communications which contravene society's basic standards. Its purpose is not confined to protecting recipients from unsolicited objectionable messages; that concern is addressed separately by Section 1 of the Malicious Communications Act 1988.

3. The actus reus is the sending, by the prescribed means, of a message having the proscribed character. The offence is complete when the message is sent. It is immaterial whether anyone receives the message or whether an actual recipient is offended. Criminal liability cannot depend upon the unforeseeable reaction or identity of a recipient.

4. Whether a message is grossly offensive is a question of fact. The tribunal must apply the standards of an open and just multiracial society and consider the message's context and all relevant circumstances. The standard is that of reasonably enlightened, but not perfectionist, contemporary opinion. The operative question is whether the terms are liable to cause gross offence to those to whom they relate.

5. Applying the presumption stated in Sweet v Parsley [1970] AC 132, Lord Bingham held that culpability is required despite the subsection's silence about mens rea. The sender must intend the words to be offensive to those to whom they relate or be aware of the risk that they may be understood in that way. Such culpability can ordinarily be inferred from deliberately insulting language or from facts known to the sender which make a message peculiarly offensive.

6. Lord Carswell emphasised that appellate courts should not lightly disturb a magistrates' evaluative finding. Intervention was nevertheless justified because the justices appeared to give weight to the reactions of the actual listeners and did not properly assess the response of reasonable members of society. The deliberately opprobrious racial language was grossly offensive by the standards of an open and just multiracial society.

7. Per Lord Bingham, Section 127(1)(a) interferes with Article 10 expression but is prescribed by law, pursues the legitimate aim of protecting the reputations and rights of others, and goes no further than necessary in a democratic society. Article 17 of the Convention must also be given effect.

1. House of Lords: In [2006] UKHL 40, unanimously allowed the Director's appeal and declared that the respondent should have been convicted. No further order was made because the Director had undertaken not to seek remission.
2. Queen's Bench Divisional Court: In [2005] EWHC 1308 (Admin), dismissed the Director's appeal. Sedley LJ, with whom Mitting J agreed, held that the justices were entitled to find that the messages were not grossly offensive in their particular context.
3. Leicestershire Justices: Dismissed the charge after finding that the messages were offensive but not grossly offensive and that a reasonable person would not find them grossly offensive.