Connolly v Director of Public Prosecutions

Section 1 of the Malicious Communications Act 1988 applies to communications that are political or educational in character if they are indecent or grossly offensive and are sent with the purpose of causing distress or anxiety. Convention rights may require a rights-compatible interpretation, but they do not prevent conviction where the interference with expression is prescribed by law, pursues the protection of the rights of others, and is necessary and proportionate in a democratic society. The assessment is fact-sensitive. Freedom of religious expression does not enjoy a higher level of protection than other expression.

The claimant appealed by way of case stated from her convictions at Coventry Crown Court for sending photographs of aborted foetuses to three pharmacists, contrary to section 1 of the Malicious Communications Act 1988. She maintained that the photographs were neither indecent nor grossly offensive, that they were sent as a lawful protest and for educational purposes, and that conviction would breach Articles 9 and 10 of the Convention.

The Crown Court had found that the photographs were indecent and grossly offensive and had been sent with the purpose of causing distress or anxiety. The central questions were whether section 1 applied, whether the Convention required a different interpretation or prevented conviction, and whether the interference with the claimant’s rights was justified.

1. The appeal was dismissed. The photographs were capable of being found grossly offensive, and the Crown Court was entitled to find that they were indecent. The expressions in section 1 of the Malicious Communications Act 1988 bear their ordinary meaning. On a case stated appeal, the question was whether no tribunal acquainted with the ordinary use of language could have reached the decision below. That threshold was not met.
2. The political or educational character of a communication does not place it outside section 1. Its character may assist in determining the sender’s purpose, but does not decide whether it is indecent or grossly offensive. The statutory mens rea was established on the facts.
3. Article 10 was engaged because the photographs conveyed a political message about abortion. Section 3 of the Human Rights Act 1998 permitted section 1 to be interpreted compatibly with Article 10, including by giving the statutory words a heightened meaning or reading in a qualification for Convention rights. That interpretation could produce different results according to whether the article represented an expression engaging Convention rights.
4. The interference was prescribed by law and pursued the legitimate aim of protecting the rights of others, rather than protecting health. People generally have a right not to receive grossly offensive material sent with the purpose of causing distress or anxiety. Whether prosecution is necessary in a democratic society requires a fact-sensitive proportionality assessment.
5. The relevant factors included the claimant’s strongly held views, the public importance of abortion, the shocking nature and reality of the photographs, the recipients’ lack of public influence on the abortion debate, and the limited effectiveness of targeting pharmacies. The conviction was proportionate. Article 9 was engaged on the assumed facts, but Article 9(2) led to the same result. Religious expression was not entitled to a higher level of protection than secular expression.

• High Court (Administrative Court): the appeal by way of case stated was dismissed.
• Coventry Crown Court: dismissed the claimant’s appeal against convictions imposed by the justices.
• Solihull Magistrates’ Court: convicted the claimant on three informations under section 1 of the Malicious Communications Act 1988.