CRIMINAL LAW—MALICIOUS COMMUNICATIONs

Queen’s Bench Division (Divisional Court)
Dyson LJ and Stanley Burnton J
15 February 2007

The phrase “indecent or grossly offensive” in the Malicious Communications Act 1988 (MCA 1988), s 1 does not bear some special meaning such that communications of a political or educational nature fall outside its ambit. It is possible to interpret s 1 in a way that is compatible with Arts 9 and 10 of the European Convention on Human Rights (the Convention), by giving a heightened meaning to the words grossly offensive and indecent or by reading into s 1 a provision to the effect that the section will not apply where to create an offence would be a breach of a person’s Convention rights.
Paul Diamond (instructed by Mark Williams Associates) for the claimant.
Mark Wall QC and Daniel White (instructed by the Crown Prosecution Service) for the prosecution.

The defendant was a practising Catholic who believed that abortion was a form of murder. In 2005 she sent various chemists pictures of aborted foetuses. Before doing so she would telephone some of the pharmacies to ensure that they stocked the morning after pill. Following complaints she was charged with three offences under the Malicious Communications Act 1988, s 1(1)(b) and (4). The case against her was that she had sent to three pharmacists “pictures of an aborted foetus which is (sic) indecent/grossly offensive with the purpose of causing distress or anxiety”. She was convicted by the justices. Her appeal was dismissed by the crown court, and she appealed by way of case stated. The issues included whether the conviction constituted a breach of the defendant’s right to manifest her religion contained in Art 9 of the Convention and her right to freedom of expression under Art 10.

LORD JUSTICE DYSON:

His Lordship considered first MCA 1988, s 1 without regard to the Convention. He held that the phrase indecent or grossly offensive did not bear some special meaning such that communications of a political or educational nature fell outside its ambit. A person who sent an indecent or grossly offensive communication for a political or educational purpose would not be guilty of the offence unless it was proved that his purpose was also to cause distress or anxiety. In other words, the nature of the communication might shed light on the defendant’s mens rea.

The fact that a communication was political or educational in nature could not have any bearing on whether it was indecent or grossly offensive.
The photographs in this case were shocking and disturbing. It was impossible to say that no reasonable tribunal could have concluded that the images were grossly offensive within the meaning of MCA 1988, s 1. With more hesitation, his Lordship would say the same of indecent.
His Lordship turned to the Convention. The prosecution accepted that Art 10 was engaged, but contended that the interference with the defendant’s freedom of expression was justified as being “for the protection of health”, and/or “for the protection of the rights of others” within the meaning of Art 10(2).

His Lordship considered Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 3 All ER 411. In the light of that case, it was possible to interpret s 1 in a way which was compatible with Art 10. That could be done by giving a heightened meaning to the words grossly offensive and indecent, or by reading into s 1 a provision to the effect that the section would not apply where to create an offence would be a breach of a person’s Convention rights, that was, a breach of Art 10(1), not justified under Art 10(2). Since MCA 1988 also applied to the sending of articles which did not engage any article of the Convention eg the sending of excrement in the post, it had to follow that effect would be given to s 1 differently according to the nature of the communication that the article represented. The same article might be an expression in one case, and not an expression in another. To the eyes of someone schooled in the orthodox English domestic law rules of statutory interpretation, that seemed quixotic. But it was the inevitable consequence of the Human Rights Act 1998, s 3.

His Lordship turned to consider whether the interference with the defendant’s rights could be justified under Art 10(2).
He held that the people who worked in the three pharmacies targeted by the defendant had the right not to have sent to them material of the kind that she had sent when it was her purpose, or one of her purposes, to cause distress or anxiety to the recipient. Just as members of the public had the right to be protected from such material (sent for such a purpose) in the privacy of their homes, so too, in general terms, did people in the workplace. But it had to depend on the circumstances. The more offensive the material, the greater the likelihood that such people would have the right to be protected from receiving it. But the recipient might not be a person who needed such protection. Thus for example the position of a doctor who routinely performed abortions who received photographs similar to those that were sent by the defendant might be materially different from that of employees in a pharmacy which happened to sell the morning after pill.

He further considered whether the prosecution of the defendant in furtherance of the protection of the rights of others was “necessary in a democratic society”, and proportionate to the legitimate aim pursued. It had been convincingly shown that the conviction of Connolly was necessary in a democratic society.

The defendant’s right to express her views about abortion did not justify the distress and anxiety that she intended to cause those who received the photographs. Of particular significance was the fact that those who worked in the three pharmacies were not targeted because they were in a position to influence a public debate on abortion.

The appeal therefore failed in so far as it was based on Art 10 of the Convention. The reasoning in respect of Art 10(2) applied also under Art 9(2) and therefore the appeal would be dismissed.
Mr Justice Stanley Burnton agreed.