Judgment Approved by the court for handing down.
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. 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.”
25.
Lord Carswell said:“21. I respectfully agree with the conclusion expressed by my
noble and learned friend Lord Bingham of Cornhill in paragraph
11 of his opinion that it must be proved that the respondent
intended his words to be offensive to those to whom they related
or be aware that they may be taken to be so. I also agree with his
conclusion in paragraph 8 that it can make no difference to
criminal liability whether a message is ever actually received or
whether the persons who do receive it are offended by it. What
matters is whether reasonable persons in our society would find
it grossly offensive.
22. These conclusions are sufficient to answer the certified
question. It remains to apply the principles to the facts of the
present case and the findings of the magistrates' court. I felt quite
considerable doubt during the argument of this appeal whether
the House would be justified in reversing the decision of the
magistrates' court that the reasonable person would not find the
terms of the messages to be grossly offensive, bearing in mind
that the principle to which I have referred, that a tribunal of fact
must be left to exercise its judgment on such matters without
undue interference. Two factors have, however, persuaded me
that your Lordships would be right to reverse its decision. First,
it appears that the justices may have placed some weight on the
reaction of the actual listeners to the messages, rather than
considering the reactions of reasonable members of society in
general. Secondly, it was conceded by the respondent's counsel
in the Divisional Court that a member of a relevant ethnic
minority who heard the messages would have found them
grossly offensive. If one accepts the correctness of that
concession, as I believe one should, then one cannot easily
escape the conclusion that the messages would be regarded as
grossly offensive by reasonable persons in general, judged by the
standards of an open and just multi-racial society. The terms used
were opprobrious and insulting, and not accidentally so. I am
satisfied that reasonable citizens, not only members of the ethnic
minorities referred to by the terms, would find them grossly
offensive.”
26.
Lord Brown of Eaton-under-Heywood said:-
DPP v Bussetti
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