QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE STANLEY BURNTON
| Veronica Connolly
|- and -
|Director of Public Prosecutions
Mark Wall QC and Daniel White (instructed by Director of Public Prosecutions) for the Defendant
Hearing dates: 23rd January 2007
Crown Copyright ©
Lord Justice Dyson:
"(1) Any person who sends to another person-
(a) a letter or other article which conveys-
(i) a threat; or(ii) information which is false and known or believed to be false by the sender; or
(b) any other article which is, in whole or part, of an indecent or grossly offensive nature,
is guilty of an offence if his purpose, or one of his purposes, in sending it is that it should, so far as falling within paragraph (a) or (b) above, cause distress or anxiety to the recipient or to any other person to whom he intends that it or its contents or nature should be communicated.
(4) A person guilty of an offence under this section shall be liable on summary conviction to a fine not exceeding level 4 on the standard scale."
"5. The appellant during 2005 as alleged in the information, sent to various chemists in Solihull pictures of aborted foetuses. The appellant admitted that she had sent the pictures but maintained that such pictures were not indecent nor grossly offensive and that the purpose of sending them was not to cause distress or anxiety but merely to make a lawful protest and educate against the use of the 'Morning After Pill'.
6. The Appellant is a Christian of the Catholic denomination. She is a practising Christian and regularly attends her local Church. She believes that an unborn Baby is a child of God and abortion is a form of murder. She articulates [sic] the Repeal of the Abortion Act 1967. She believes that deformed foetuses should have additional protection from society.
7. In or about 2004, the Appellant commenced writing to pharmacists with photographs of aborted foetuses- having apparently been urged to do so by a newspaper; she would telephone some of the pharmacies prior to sending photographs to ensure that they stocked 'The Morning After Pill'.
8. All the letters appeared to have been opened by a Supervisor, Manager or Head Pharmacist. A more junior member of staff could open the post, and indeed one particular letter was opened by a member of staff whose relative had recently given birth to a still born child.
9. On the 10th February 2005, a complaint was received from Olton Pharmacy and the police attended. On 13th February 2005, the Appellant was arrested and taken to Solihull Police Station for questioning.
10. On the 13th July 2005, Mrs Connolly entered a plea of 'Not Guilty' at Solihull Magistrates Court. On 6th October 2005 Mrs Connolly was convicted of these offences contrary to the Malicious Communications Act 1988.
11. We found the following further facts:-
(a) The Appellant on each occasion sent the relevant letters which contained photographs which we found to be both indecent and grossly offensive.
(b) The Appellant sent such indecent/grossly offensive material (intending or with the purpose of) causing distress or anxiety to the recipients.
(c) Recipients of such material were actually offended by such material."
"12. The Appellant's Case
(a) It was submitted on behalf of the Appellant that as current standards are so low the material did not therefore cross the threshold of being indecent or grossly offensive.
(b) That the Malicious Communications Act should not apply to a lawful protest and to find otherwise would be a breach of the European Convention of Human Rights on issues pertaining to freedom of expression and in particular freedom of religious expression."
"a. Does the Malicious Prosecutions Act 1988 apply to the facts of this case;
b. If the answer to question (a) is affirmative i) is the sending of pictures of aborted foetuses objectively 'indecent' or 'grossly offensive' and ii) does the Appellant satisfy the subjective elements of intending to cause distress or anxiety?
c. Are the answers to the above questions affected by Articles 9 and 10 of the European Convention on Human Rights?"
Consideration of the issues without regard to the European Convention on Human Rights ("the Convention")
"This court entirely agrees with what Lord Sands there said. The words "indecent or obscene" convey one idea, namely, offending against the recognised standards of propriety, indecent being at the lower end of the scale and obscene at the upper end of the scale".
Consideration of the issues in the light of the Convention
"1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."
"30. From this it follows that the interpretative obligation decreed by section 3 is of an unusual and far-reaching character. Section 3 may require a court to depart from the unambiguous meaning the legislation would otherwise bear. In the ordinary course the interpretation of legislation involves seeking the intention reasonably to be attributed to Parliament in using the language in question. Section 3 may require the court to depart from this legislative intention, that is, depart from the intention of the Parliament which enacted the legislation. The question of difficulty is how far, and in what circumstances, section 3 requires a court to depart from the intention of the enacting Parliament. The answer to this question depends upon the intention reasonably to be attributed to Parliament in enacting section 3.
31. On this the first point to be considered is how far, when enacting section 3, Parliament intended that the actual language of a statute, as distinct from the concept expressed in that language, should be determinative. Since section 3 relates to the 'interpretation' of legislation, it is natural to focus attention initially on the language used in the legislative provision being considered. But once it is accepted that section 3 may require legislation to bear a meaning which departs from the unambiguous meaning the legislation would otherwise bear, it becomes impossible to suppose Parliament intended that the operation of section 3 should depend critically upon the particular form of words adopted by the parliamentary draftsman in the statutory provision under consideration. That would make the application of section 3 something of a semantic lottery. If the draftsman chose to express the concept being enacted in one form of words, section 3 would be available to achieve Convention-compliance. If he chose a different form of words, section 3 would be impotent.
32. From this the conclusion which seems inescapable is that the mere fact the language under consideration is inconsistent with a Convention-compliant meaning does not of itself make a Convention-compliant interpretation under section 3 impossible. Section 3 enables language to be interpreted restrictively or expansively. But section 3 goes further than this. It is also apt to require a court to read in words which change the meaning of the enacted legislation, so as to make it Convention-compliant. In other words, the intention of Parliament in enacting section 3 was that, to an extent bounded only by what is 'possible', a court can modify the meaning, and hence the effect, of primary and secondary legislation.
33. Parliament, however, cannot have intended that in the discharge of this extended interpretative function the courts should adopt a meaning inconsistent with a fundamental feature of legislation. That would be to cross the constitutional boundary section 3 seeks to demarcate and preserve. Parliament has retained the right to enact legislation in terms which are not Convention-compliant. The meaning imported by application of section 3 must be compatible with the underlying thrust of the legislation being construed. Words implied must, in the phrase of my noble and learned friend Lord Rodger of Earlsferry, 'go with the grain of the legislation'. Nor can Parliament have intended that section 3 should require courts to make decisions for which they are not equipped. There may be several ways of making a provision Convention-compliant, and the choice may involve issues calling for legislative deliberation."
"It is plain from the language of article 10(2), and the European Court has repeatedly held, that any national restriction on freedom of expression can be consistent with article 10(2) only if it is prescribed by law, is directed to one or more of the objectives specified in the article and is shown by the state concerned to be necessary in a democratic society. "Necessary" has been strongly interpreted: it is not synonymous with "indispensable", neither has it the flexibility of such expressions as "admissible", "ordinary", "useful", "reasonable" or "desirable": Handyside v United Kingdom (1976) 1 EHRR 737, 754, para 48. One must consider whether the interference complained of corresponded to a pressing social need, whether it was proportionate to the legitimate aim pursued and whether the reasons given by the national authority to justify it are relevant and sufficient under article 10(2): The Sunday Times v United Kingdom (1979) 2 EHRR 245, 277-278, para 62."
"It is a different matter where restrictions are imposed on a right or freedom guaranteed by the Convention in order to protect "rights and freedoms" not, as such, enunciated therein. In such a case only indisputable imperatives can justify interference with enjoyment of a Convention right".
"Having regard to the foregoing, the reasons adduced in support of the applicant's conviction and sentence were not sufficient to establish convincingly that the interference thereby occasioned with the enjoyment of his right to freedom of expression was "necessary in a democratic society"; in particular the means employed were disproportionate to the aim of protecting "the reputation or rights of others". Accordingly the measures give rise to a breach of Article 10 of the Convention".
"It was not contended by counsel for the Alliance that a restriction barring the televising of a programme likely to be offensive to public feeling was, per se, incompatible with article 10. Nor should it have been. The reference in article 10(2) to the "rights of others" need not be limited to strictly legal rights the breach of which might sound in damages and is well capable of extending to a recognition of the sense of outrage that might be felt by ordinary members of the public who in the privacy of their homes had switched on the television set and been confronted by gratuitously offensive material."
"Nevertheless the citizen has a right not to be shocked or affronted by inappropriate material transmitted into the privacy of his home. It is not necessary to consider whether that is a Convention right (Mr Pannick made a brief reference to article 8, but did not seek to develop the point). Whether or not it is classified as a Convention right, it is in my view to be regarded as an "indisputable imperative" in the language of the European Court of Human Rights in Chassagnou v France (1999) 29 EHRR 615, 687, para 113.
"1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedom of others."
"31. As enshrined in Article 9, freedom of thought, conscience and religion is one of the foundations of a 'democratic society' within the meaning of the Convention. It is, in its religious dimension; one of the most vital elements that go to make up the identity of believers and of their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it.
While religious freedom is primarily a matter of individual conscience, it also implies, inter alia, freedom to 'manifest [one's] religion.' Bearing witness in words and deeds is bound up with the existence of religious convictions.
According to Article 9, freedom to manifest one's religion is not only exercisable in community with others, 'in public' and within the circle of those whose faith one shares, but can also be asserted 'alone' and 'in private'; furthermore, it includes in principle the right to try to convince one's neighbour, for example through 'teaching,' failing which, moreover, 'freedom to change [one's] religion or belief,' enshrined in Article 9, would be likely to remain a dead letter."
Stanley Burnton J: