Mr Collins, 61, made a number of calls over a two year period to
his local MP, David Taylor. Sometimes he spoke to Mr Tayor's staff
in the North West Leicestershire constituency; sometimes he left
recorded messages to which staff and Mr Taylor himself later
listened.
Collins was described in court as holding "strong views on
immigration and asylum policy". He referred to "Wogs", "Pakis",
"Black bastards" and "Niggers" in his calls. Some who received the
calls described themselves as shocked, alarmed and depressed by the
language.
Under the Communications Act 2003, it is an offence to send over
a public electronic communications network a message that is
"grossly offensive or of an indecent, obscene or menacing
character". The wording can be traced back to legislation passed in
1935 and the charges were brought under an Act of 1984; but the
House of Lords considered the case as though the 2003 Act
applied.
A lower court ruled that Collins' language was offensive – but
not grossly offensive. The charges were dismissed. The Director of
Public Prosecutions appealed without success to the Queen's Bench
Divisional Court. He then appealed to the House of Lords.
Allowing the appeal, Lord Bingham of Cornhill ruled that the
question of whether a message is grossly offensive must be answered
by applying "the standards of an open and just multi-racial
society" and the words must be judged "taking account of their
context and all relevant circumstances."
"Usages and sensitivities may change over time," he wrote.
"Language otherwise insulting may be used in an unpejorative, even
affectionate, way, or may be adopted as a badge of honour".
"There can be no yardstick of gross offensiveness otherwise than
by the application of reasonably enlightened, but not
perfectionist, contemporary standards to the particular message
sent in its particular context," he continued. "The test is whether
a message is couched in terms liable to cause gross offence to
those to whom it relates."
He explained that the law does not criminalise the conduct of
one who uses language which is, for reasons unknown to him, grossly
offensive to those to whom it relates; rather, it criminalises
those whose message is couched in terms showing an "intention to
insult those to whom the message relates or giving rise to the
inference that a risk of doing so must have been recognised by the
sender."
Lord Bingham continued that "some at least of the language used
by the respondent was language which can only have been chosen
because of its highly abusive, insulting, pejorative, offensive
character. There was nothing in the content or tenor of these
messages to soften or mitigate the effect of this language in any
way."
"Differing from the courts below with reluctance, but ultimately
without hesitation, I conclude that the respondent's messages were
grossly offensive and would be found by a reasonable person to be
so," he wrote. "Since they were sent by the respondent by means of
a public electronic communications network they fall within the
section. It follows that the respondent should have been
convicted."
Collins did not seek to rely on the Human Rights Act of 1998 –
which includes a right to freedom of expression. Rightly so,
observed Lord Bingham: while the Communications Act interferes with
the right, it is a restriction clearly prescribed by statute. "It
is directed to a legitimate objective, preventing the use of a
public electronic communications network for attacking the
reputations and rights of others. It goes no further than is
necessary in a democratic society to achieve that end," he
wrote.
The Director of Public Prosecutions appears to have brought the
appeal to clarify the law. Due to a previous undertaking, the
result will not affect Mr Collins and no order against him will be
made.
The court noted that the offence in the Communications Act
overlaps with a similar offence in the Malicious Communications Act
of 1988 which is potentially wider because it is not limited to the
use of a public electronic communications network. The 1988 Act
criminalises, for example, dropping a letter through a letterbox
which is grossly offensive, obscene, indecent or menacing.
