Malicious Communications Act Offences

Offences Under The Malicious Communications Act 1988

Under this area of law, communication is defined as any person who sends a letter, electronic communication or article of any description to another person which conveys the following:

  • A message that is indecent or grossly offensive
  • A threat
  • Information that is false and is known or believed to be false by the sender

This also includes any article or electronic communication that is, in whole or part, of an indecent or grossly offensive nature.

The above only applies if the sender’s purpose, or one of their purposes, was to cause distress or anxiety to the recipient. The mental state of the sender is a key element of the offence and the prosecution must prove their case beyond reasonable doubt. In other words, they must make the court or jury sure that a person intended, or one of their intentions was, to cause distress or anxiety.

A person found guilty could face a prison term not exceeding two years on indictment or up to 12-month custody at the Magistrates’ Court.

Offences Under The Communications Act 2003

Offences that fall under section 127 of the Communications Act 2003 include the following:

  • A person sending any public electronic communications network a message or other content that is grossly offensive or of an indecent, obscene or menacing character
  • A person causes any such message or content to be sent

A person can also be found guilty of an offence under the Communications Act if they intend to cause annoyance, inconvenience or needless anxiety to another by:

  • sending a message that is known to be false via a public electronic communications network;
  • causing such a message to be sent; or
  • persistently making use of a public electronic communications network

Similar to offences under the Malicious Communications Act, one offence under the Communication Act 2003 requires the content of a message to be ‘grossly offensive’, ‘indecent’, ‘obscene’ or of a ‘menacing character’. However, the mental element of the offence is broader as it includes circumstances where a person should have awareness or recognition that sending the message may create insult or a risk of insult to the person to whom the message relates.

In addition, an offence will be committed under section 127(2) of the Act where a person had specific intent to cause annoyance, inconvenience or anxiety with a message that is false.

What are the penalties for a malicious communication offence?

There are varying levels of seriousness and sentences that will be received by individuals convicted of malicious communications (under both Acts). Someone who is charged with an offence may have their case heard in either the Magistrates’ or Crown Court depending upon the offence that is charged.

If a person is found guilty of an offence under the Malicious Communications Act 1988, they may be sentenced to a prison sentence of up to 12 months or a fine or both, following a conviction in the Magistrates’ Court, or a prison sentence of up to two years or a fine or both on conviction in the Crown Court.

A person found guilty of an offence under the Communications Act 2003 will be sentenced
in the Magistrates’ Court and may receive a prison sentence of up to six months or a fine.

A criminal charge relating to malicious communications is always a serious allegation and there is a significant risk that a sentence of imprisonment may be received. It is therefore
essential to seek expert legal advice.

Can I defend a charge?

Each case is unique and a defence should be fully explored with appropriate legal advice.
The nature of the content and whether the prosecution can prove their case needs to be carefully considered. In addition, detailed consideration and advice will need to be obtained in relation to the intention and purpose of the message or messages.

As set out above, the offences and what the prosecution must prove is complex. It is, therefore, important that you have thorough and robust legal advice in defending an allegation.

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