It is illegal to send indecent or grossly offensive material to cause distress or anxiety to the recipient, even when it is done for political or educational reasons, the High Court has said.
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.