Free Director Of Public Prosecutions Case Study Example

Frances Oldham QC Esther Harrison (Instructed by Mander Cruikshank)

David Perry, Louis Mabley.
A person is guilty of an offence if he sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character
The Act received Royal Assent on 17th July, 2003. s. 127 came into force on 25th July, 2003.
In the period since January 2002 to January 2004, Mr. Collins, a respondent, repeatedly telephoned to the office of Mr. David Taylor, MP. Respondent spoke personally with staff members of Mr. Taylor, as well as left recorded messages. These phone calls and messages contained respondent`s angry tirades concerning public policy on immigration and asylum. The respondent used such words as “Pakis”, Black Bastards”, “Niggers”, “Wogs”. Those who communicated with respondent or heard his messages stated that they were shocked and alarmed by his language. [2]
The magistrate`s court following a trial dismissed the charges. The court noted that the use of racist terms was caused by respondent`s indignation over the manner his requests were handled. The court ruled that there is no ground to convict the respondent. In the court`s view, his language was definitely offensive, however, a reasonable person would not consider the language to be “grossly offensive”.[4]
Following the decision, Director of Public Prosecutions appealed to Queen`s Bench Divisional Court. The court gave extempore judgment affirming trial court`s ruling that respondent`s language cannot be considered grossly offensive within the meaning of s.127 1(a). [2005] EWHC 1308 To determine whether a particular message is “grossly offensive” courts must look primarily at the context of the message (circumstances and background surrounding the message), not its contents. [9] In this case, the respondent despite the offensive content of his phone calls did not mean to offend the person/ persons to whom it was addressed. However, the language would be considered grossly offensive if the respondent was speaking to a member of ethnicity he offended. Lord Justice notes that the legislature pursued a specific goal by criminalizing gross offences: to protect people from being subjected to grossly offensive messages. Furthermore, not every such message results in punishment; justices should carefully consider whether the wider society treats the words and expressions used as grossly offensive. Therefore, not every use of grossly offensive language is punishable by law. [12] Divisional Court affirmed the decision of magistrate`s court.
In this case the court was asked to consider the meaning and application of s.127 (1)(a). The certified question was the following: what is the appropriate test to determine whether one`s messages sent through electronic communications systems constitute an offence under s.127(1) of the Communications Act 2003. Based on this, the House of Lords was asked to rule whether the respondent`s messages and calls were grossly offensive within the meaning of s. 127 (1) (a) and thus constitute an offence.
The object of Communications Act and specifically of s127 (1)(a) is to prohibit the use of public services (in this case, telephone communications services) for the purpose of transmission of messages that violate the principles of public order by “attacking reputation and rights” of the members of society. The object of s1 Malicious Communications Act 1988, on the other hand, is to protect people against receipt of messages they find unacceptable or offensive.[7]
Lord Brown also points that there is a crucial difference between the purposes of those sections. S.127 intends to make the mere act of sending a grossly offensive message a criminal act. On the other hand, s.1 of Malicious Communications Act criminalizes the same act only if the sender of such message clearly intended to cause distress or anxiety to the recipient.[25] In other words, the second element of crime, mens rea or state of mind, must be present in this case. Lord Brown also agrees with Lord Bingham that the s.127 purports to protect the “integrity” of public communications services. [27]
The proscribed act or actus reus, is an element of crime – a criminal act prohibited by legislature. Under s. 127(1)(a), actus reus is the act of sending of a grossly offensive message by means of public communication systems. [8] The text of this section further states that sending of a message is also an offence if it has “indecent, obscene or menacing character”. Lord Bingham specifies that under this section, an offence is complete when such message is sent. Therefore, it is completely irrelevant whether the message was received by someone or if it was offending to the person who heard it. The fact that the message was sent already constitutes a criminal act.[8] Lord Brown agrees with the definition of actus reus under s.127 given by Lord Bingham, stating that sending a grossly offensive message over public communications services constitutes the offence, even if that message was communicated to someone who would not in any way be offended or distressed by its contents. [26]
The House of Lords agrees with the ruling of Divisional Court noting that to determine whether a particular message is grossly offensive, it is necessary to consider commonly accepted standards of modern society, as well as the context of the message and relevant circumstances. The House of Lords emphasized that there cannot be a strict and objective criterion that determines whether the message is grossly offensive; each case must be treated separately according to reasonable contemporary standards. Nevertheless, the court concludes that the message is grossly offensive if the language and terms cause gross offence to whom it relates. [9]
Lord Carswell was concerned with the fact that the justices of Divisional Court and magistrate`s court did not consider whether the members of racial enthnicities would find the message grossly offensive. Furthermore, the important question they failed to address is whether a reasonable person in contemporary society would also find the message grossly offensive. On these grounds, Lord Carswell pointed out two factors that should convince the House of Lords to reverse the decision. First factor is that justices considered the reaction of the recipents of respondent`s calls and messages rather than the possible reaction of reasonable members of society in general. Second factor is that the respondent`s counsel in Divisional Court accepted the view that the wording of the calls and messages was undoubtedly offensive to related members of ethnical groups. Therefore, Lord Carswell assumes that according to the standards of multi-racial society a reasonable person would also regard those calls as grossly offensive. Based on this, Lord Carswell agreed that the decision should be reversed. [22]
The House of Lords held that s. 127 (1) (a) may restrict person`s right to freedom of expression, which is protected by Article 10 of European Convention of Human Rights. Nevertheless, it is a lawful restriction prescribed by the statute because it intends to protect the society from the misuse of public electronic communications services that results in violation of rights of other members of society. This standard is common for democratic countries as it balances the interests of individual (freedom of expression in this case) with the public interest. [14]
House of Lords unanimously allowed Director`s appeal without further order. Respondent will not be convicted as the appellant agreed that the case would not be returned to the magistrate`s court in the event the appeal is successful. [15]

Reflective log

Explain how your knowledge and understanding of the law have developed since you started your degree.
My understanding of the law has changed significantly since I`ve started degree. Even though I have learnt a great deal about the branches of law, I must say this is not the most important knowledge I have acquired. Of course, every lawyer must know the law, you can`t argue with that. However, it is much more important to know how the law works; what are the principles that govern all aspects of legal environment whether it is global questions of legislature and its impact on society, or the way the law works on mundane level. After all, law is a system, and just like every system it has its own rules and principles. For example, I have realized how important it is to identify correctly legal issues in each case in order to make strong arguments. The fate of the case depends on how well lawyer can identify principle facts and issues, as well as to distinguish what is important for the case and what is not.