What is permissible in terms of freedom of expression and freedom of religion in the context of the abortion debate?

Background

In R v Skinner [2026] EWCR 4, Mr Skinner was a devout Christian strongly opposed to abortion. He sent two identical letters, attached to e-mails, to Temporary Inspector Fern Graham of the Dorset Police and to the Office of the Dorset Police and Crime Commissioner (which was opened by a female office administrator) headed “Reporting mass murder in Ophir Road” – a reference to the British Pregnancy Advisory Service’s clinic in Ophir Road, Bournemouth, which offers pregnancy termination. The letters included what were said to be photographs of aborted foetuses and comments about “brutal killings taking place in Bournemouth” and “terror and torture” suffered by foetuses in the process of termination [1-4]. (He also sent them to the Chief Constable and to local councillors, but those were not the subject of a criminal complaint [7].) He was convicted in respect of the e-mails to Inspector Graham and the Police and Crime Commissioner for improper use of the public electronic communications network, contrary to s.127(1) of the Communications Act 2003 [9 & 10]. He appealed.

The law

Saini J noted that the Divisional Court had recently set out the scope of s.127(1) and its interaction with the ECHR at para [111] of Cobban & Anor v Director of Public Prosecutions [2024] EWHC 1908 (Admin) at [12]. In summary [17]:

‘(1) The object of section 127(1)(a) is to prohibit the use of a service provided and funded by the public for the benefit of the public for the transmission of communications which contravene the basic standards of our society. It is the use of the public network which is the core of the offence;

 (2) Whether a message sent over an electronic communications network is “grossly offensive” within section 127(1)(a) is a question of fact to be answered objectively by reference to its contents and context, and not its actual effect. In determining whether a message is “grossly offensive” the tribunal of fact must ask whether its contents are liable to cause gross offence to those to whom it relates, or whether reasonable persons in our society would find it grossly offensive. That test requires the application of the standards of an open, just, multiracial and multifaith society;

(3) There is binding authority in the form of R v Collins [2006] UKHL 40 to the effect that the ingredients of the offence under section 127(1)(a) are as follows:

1. The actus reus of the offence comprises three elements, namely: (a) sending a message; (b) of the proscribed “grossly offensive” character; and (c) by way of a public electronic communications network. Provided that all three elements are proved, the actus reus is complete at the time of the sending. It makes no difference whether the relevant message is received or read;

2. As regards the mens rea of the offence, the defendant must have intended his message to be grossly offensive to those to whom it related, or be aware that it may be taken to be so;

(4) However, before a defendant can be convicted for sending a message prosecuted under this section, the court must also be satisfied that the conviction is a proportionate interference with such Convention rights as apply.’

The judgment

It was common ground that Mr Skinner had sent the letters over a public communications network for the purposes of section 127(1); the issue was whether the communications were “grossly offensive” and whether the mens rea had been proved [18].

The Court was not satisfied that the conviction was a proportionate interference with Mr Skinner’s Convention right to freedom of speech under Article 10 [34]:

• The views expressed in the letters, as supported by the images, were political speech entitled to the highest form of protection. The abortion debate raised important matters of public interest where strong views were legitimately held and expressed, often in forceful terms, by persons on each side of the argument and ‘great caution is required before a state can restrict the expression of political standpoints’ [35];
• An individual had the right to use images as a form of speech in a way which would shock and offend ‘and indeed it is of often the power of an image which carries the message in its strongest terms’ [36]; and
• The intended recipients of the letters were public officials. Inspector Fern could be expected to have ‘a higher tolerance as a police official’, and Mr Skinner had no way of knowing that anyone other than the Police and Crime Commissioner would open the correspondence, which was marked for his attention [37].

The Court was in no doubt that those who viewed the Images had found them deeply distressing, but they were ‘part and parcel of a debate on an important matter of public interest, where there are strongly held views both for and against abortion’ [41]. Appeal allowed [42].