Case: Director of Public Prosecutions v Collins [2006] 4 All ER 602
Outcome: discussed
Nevertheless, it does seem to me that the approach of the House of Lords in Director of Public Prosecutions v Collins [2006] 4 All ER 602 provides some assistance in determining what is intended by the concept of "offence to a reasonable adult". 145 In Director of Public Prosecutions v Collins the respondent had been charged with an offence under s 127(1)(a) of the Communications Act 2003 (UK), which provided, inter alia, that a person was guilty of an offence if he or she sent, by means of a public electronic communications system, a message that was "grossly offensive". The charges arose from telephone calls to a member of Parliament and his staff. The respondent had strong views on immigration policy and shouted references to "wogs", "Pakis" and "black bastards". 146 Their Lordships were of the view that the question of whether a message is "grossly offensive" is to be determined by the standards of an open and just multi-racial society and that the words used must be considered in their context and all relevant circumstances. 147 Lord Bingham observed at [9] that there can be no yardstick of gross offensiveness other than by the application of reasonably enlightened, and not perfectionist contemporary standards. His Lordship concluded at [13] that the respondent's messages were grossly offensive and would be found "by a reasonable person" to be so. 157 Both Director of Public Prosecutions v Collins and Wurramura v Haymon dealt with offensive behaviour under penal statutes rather than depictions of acts likely to cause offence to a reasonable adult under a film classification scheme. Nevertheless, the definition of "offensive" in the Guidelines adopts the ordinary meaning of that term, ie. material which causes outrage or extreme disgust. Both of the authorities to which I have referred would appear to approach the meaning of the term in that sense. 158 It is also to be noted that although the statute under consideration in Director of Public Prosecutions v Collins did not expressly proscribe messages which were (grossly) offensive to "a reasonable person", both Lord Bingham and Lord Carswell proceeded upon the basis that this was to be established in order for a contravention to be made out. Lord Carswell drew no distinction between the concept of "a reasonable person" and that of "reasonable persons." 159 The Act refers in s 11(a) to the standards "generally accepted by reasonable adults". By contrast, the description of the X18+ classification in the Code refers to depictions likely to cause offence to "a reasonable adult". This distinction also appears in s 29(4)(a) and s 29(4)(b) of the Act. 160 I do not consider that anything turns on the difference in this language. Director of Public Prosecutions v Collins suggests that there is no difference between those terms. In any event, in a cooperative legislative scheme which provides for the classification of films, it would be wrong to draw narrow distinctions between "reasonable adults" and "a reasonable adult". 161 The words "a reasonable adult" in the X18+ classification are part of a composite phrase. That phrase has special work to do. It must be considered in light of the objective referred to by the ALRC, namely that censorship, and classification categories, are aimed at regulating the availability of films within the broad framework of general community standards. The Act and the Code establish a regime for classification of films which applies nationally. Community standards differ widely across Australia. The search is not for one reasonable representative person. The scheme takes account of diverse Australia-wide community standards. 162 The Review Board said it had regard to the definition of "reasonable adult" either as contained in the Guidelines or in the Macquarie Dictionary. However, the Guidelines (ie. The Guidelines for Classification of Films and Computer Games) contain no definition of that term. (Nor, for that matter, does the Macquarie Dictionary). There is a definition of "reasonable adult" in the Guidelines for the Classification of Publications, 2005, as follows: "Possessing common sense and an open mind, and able to balance personal opinion with generally accepted community standards."