The conviction of Veronica Connolly was upheld
on appeal this month. Connolly had sent pictures of aborted
foetuses to pharmacies which stocked the morning after
contraceptive pill.
Connolly was convicted in the Magistrates
Court of committing an offence under the Malicious Communications
Act. That Act, from 1988, says that someone who sends another
person material which is grossly offensive or indecent and is sent
in order to cause the recipient distress or anxiety is guilty of an
offence. The offence can apply to letters, email and other forms of
communication.
Connolly appealed that decision to the Crown
Court which upheld the conviction and to the High Court, which has
now also backed the original decision.
Connolly admitted sending the pictures and
said that, as a Catholic, she viewed unborn children as children of
God and therefore to be protected. She argued that the degenerate
nature of society and her right to free speech mitigated the
offence.
"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," said
the Crown Court documents. "[It was argued] 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."
The European
Convention on Human Rights provides that everyone has the
right to freedom of expression. It is a qualified right, however:
the Convention states that the freedom 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."
Lord Justice Dyson in the High Court said that
the context was a useful indicator of the state of mind of the
accused but did not absolve her. "I do not see how the fact that a
communication is political or educational in nature can have any
bearing on whether it is indecent or grossly offensive," he said in
his judgment.
In balancing the rights of expression of
Connolly and the rights to not be offended of pharmacy workers,
Dyson said that the workers deserved protection. "In my judgment,
the persons who worked in the three pharmacies which were targeted
by Mrs Connolly had the right not to have sent to them material of
the kind that she sent when it was her purpose, or one of her
purposes, to cause distress or anxiety to the recipient," he
said.
"Just as members of the public have the right
to be protected from such material (sent for such a purpose) in the
privacy of their homes, so too, in general terms, do people in the
workplace," said Dyson.
"I would hold that it has been convincingly
shown that the conviction of Mrs Connolly on the facts of this case
was necessary in a democratic society. Her right to express her
views about abortion does not justify the distress and anxiety that
she intended to cause those who received the photographs," said
Dyson, dismissing that part of the appeal which depended on a
general freedom of expression.
A similar offence exists in the Communications
Act, which forbids the sending of a message that is "grossly
offensive or of an indecent, obscene or menacing character". But
the Communications Act is limited to the use of a public electronic
communications network. Accordingly, an employee sending such
material by email to a colleague might fall foul of the Malicious
Communications Act but not the Communications Act.
