TERROISM ACT 2006 s2 – Collecting and dissemination of terrorist material – R v Iqbal [2010] EWCA Crim 3215
 
The defendant had been arrested at a UK airport en route to Finland and in his possession were found documents relating to the promotion of terrorism. In an appeal against his conviction the Court of Appeal, Criminal Division rejected the argument that s 2TA 2006 did not cover possession of such documents in the UK where there intended use was abroad it was to be interpreted as covering such a situation.

CRIMINAL JUSTICE AND IMMIGRATION ACT 2008 s63(1) – Possession of extreme pornographic material – R v CHENG (PING CHAN) [2009] EWCA Crim 2965.

A Chinese national, with a very poor command of English, was detained with a bag containing several hundred DVD’s.  Most of these were simple counterfeits of mainstream films but eight contained grossly offensive and disgusting images of sexual activity with dogs. In quashing the conviction because of an improper direction to the jury the Court of Appeal ruled that - it was sufficient for the Crown, for the purposes of establishing the offence of possession of an extreme pornographic image contrary to the Criminal Justice and Immigration Act 2008 s.63(1), to establish that the defendant was in physical possession of the image. Though it had to prove that the defendant knew of the image's existence, it did not have to prove that he knew of its nature. Once possession had been established the burden shifted to the defendant to establish, on the balance of probabilities, that he had not seen the image and neither knew nor had cause to suspect it to be an extreme pornographic image.

Obscene Publications Act 1959 ss1 & 2 – Theatre Act 1968 s2(4), Broadcasting Act 1990 Sched 15 para 6 – R (on the application of Green) v City of Westminster Magistrates Court [2007] EWHC 2785.

G, was a member of a Christian organization and had sought to issue a summons for a private prosecution against the producers of 'Jerry Springer: the Opera' in which God, Christ, Mary, and Adam were presented as exhibiting considerable excesses and using bad language – in particular Christ was portrayed as a homosexual. The magistrate refused to issue a summons on the grounds that no action could be brought against either the producers or the BBC (who had broadcast the opera) under the Theatre Act 1968 and that in any event there was no prima facie case of blasphemous libel. The QBD (Administrative Court) upheld the decision. Blasphemy involved two elements – (a) contemptuous, reviling, scurrilous or ludicrous material relating to God, Christ, or the formularies of the Church of England (Anglican Established Church) and (b) the publication had to be such as tended to endanger society as a whole, by endangering the peace, depraving public morality, shaking the fabric of society or tending to cause civil strife. However tasteless, the work did not target the Christian religion but tasteless chat shows and in any event there was no evidence that the second requirement had been fulfilled – it had been seen in theatres throughout the land and though there had been a demonstration against it outside Broadcasting House this was insufficient to make a prima facie case. In any event s2(4) TA1968 applied to broadcasting by Sch 15 para 6 BA 1990 prevented the use of the OPA 1959 in relation to live performances and broadcasts.

NB: s79 of the Criminal Justice and Immigration Act 2008 abolishes the common law offences of blasphemy and blasphemous libel and in future religions will be protected by the incitement of hatred against believers – see Part 3A the Public Order Act 1986 inserted by the Racial and Religious Hatred Act 2006 (in Part XI of the 2nd ed of the Statute Book).

Public Order Act 1986 s4A – S v Crown Prosecution Service [2008] EWHC 438 (Admin) 8/2/08

An animal rights supporter took a photograph of the complainant who worked as a security guard for an animal-testing company while demonstrating outside the plant. The photograph plus an offensive message was published on an animal rights activist's website and implied, falsely that C had been convicted of violence in the past. C was told of the material but did not see it until shown it by police officers by which time it had been taken down from the website. The defendant was charged with displaying 'any writing, sign or other visible representation which is threatening, abusive or insulting ... thereby causing that or another person harassment, alarm or distress'. The court held that once the image had been posted with the requisite intent the defendant took the chance that the intended harassment, alarm or distress would be caused to C and it did not matter how that was ultimately triggered and could include a police officer acting in the course of his duty with no intention to alarm.

Malicious Communications Act 1988 – s1 – Connolly v DPP [2007] EWHC 237 (Admin) - anti-abortion campaigner sending image of aborted foetuses to three pharmacies that sold the morning-after pill – Whether prosecution compatible with Article 10 ECHR 1950.

The appellant was a committed Christian and strongly opposed to abortion. She sent three images of aborted foetuses to three pharmacies that sold the morning-after pill. She was prosecuted under s1 Malicious Communications Act 1988 on grounds that the images were indecent or grossly offensive and had been sent with the intention of causing distress or anxiety to the recipients. She argued that she was exercising her legitimate right of protest and freedom of expression under Article 10 ECHR 1950. The Court held that a reasonable tribunal interpreting the words in s1 MCA 1988 as ordinary words could have found her guilty of an offence and that the interference with her rights of free speech were justified under Article 10(20 ECHR 1950. Her beliefs did not justify causing the distress and anxiety she had caused the recipients of the images and they had not been targeted as able to influence the public debate on abortion policy. Article 9 ECHR 1950 (freedom of religion) did not give the right of freedom of religious expression a higher degree of protection than secular expression. (R (Prolife Alliance) v British Broadcasting Corporation (2003) HRLR 760 considered).

R v. Hamilton [2007] EWCA Crim 2062

The Court of Appeal considered an appeal against a conviction of outraging public decency, where the applicant had surreptitiously taken video footage of images beneath the skirts of a number of female customers of a supermarket, including at least one minor. For the offence to made out two elements must be proven by the prosecution: first, that the act must be of such a lewd, obscene or disgusting nature as to outrage public decency and secondly, the act must occur in a public place and must be capable of having been seen by two or more persons – even thought it need not be demonstrated that such persons did in fact witness the act in question. The first limb was clearly satisfied and, on balance, the Court of Appeal considered that the second limb was also made out – two or more persons were in principle capable of witnessing H’s actions, even if there was no proof that they did in fact actually do so.

Up to seven years imprisonment for stirring up hatred based on grounds of sexual orientation

The provision of the Criminal Justice and Immigration Act 2008 which makes it an offence to incite or stir up hatred based on grounds of sexual orientation – with a potential of up to 7 years imprisonment is now in force and the Ministry of Justice has issued a guidance note on its enforcement – there is a freedom of expression defence (s74 @ Schedule 16 amending the Public Order Act 1986) came into force on 23 March 2010.

www.justice.gov.uk/publications/docs/circular-05-2010-sexual-orientation-stirring-up-hatred.pdf

Public Order Act 1986 – ss19 & 29  – R v Sheppard & R v Whittle [2010] EWCA Crim 65, 29/01/10 – Racially inflammatory material placed on internet site in California – Whether an offence in England and Wales where site could be viewed.

Racially inflammatory material was placed on a website hosted in California by Sheppard who had edited the material and set-up the web-site for the purpose of publishing the material. He and Stephen Whittle were convicted at Leeds Crown Court for publishing racially inflammatory material contrary to s19 Public Order Act 1986. Whittle had written the material while in England and submitted by e-mail to Sheppard in England who had edited it in England then submitted it to the remote server in California over which he had control. The activities would not have constituted a crime in California. On appeal three issues were raised, firstly whether the English courts had jurisdiction; secondly whether the material constituted ‘writing’ and thirdly whether there had been ‘publication’ of the material. The Court of Appeal upheld the trial judge holding that a ‘substantial measure’ of the activities constituting the crime had taken place in England. The Californian server was merely a stage in the transmission of the material and no significant elements of the offence had been carried out there. The material was written in that it came within the phrase ‘any sign or other visible representation’ within the Act; s29 of the Act was wide enough to encompass electronic publications. Finally it was not necessary for the prosecution to show that specific ‘publishees’ had viewed the material – all that had to be shown was that the material had been made generally accessible to all or available to, or had been placed before or offered to the public. It was not relevant that all the evidence of viewing provided by the prosecution was access by one police constable.