The Malicious Communications Act 1988 covers any communication that conveys a threat for the purpose of causing distress or anxiety to the recipient. The mental state of the sender is a key element in these cases and their intention to cause stress of anxiety must be clear. The communication can take on a wide number of forms such as letters, articles and electronic communication.

The CPS Guidelines state that prosecutors should only proceed with cases under the Malicious Communications Act 1988 where the interference with freedom of expression is necessary and is proportionate." There must be sufficient evidence that the communication in question, in its particular context, is "more than offensive, shocking or disturbing" and goes "beyond the pale of what is tolerable in society". 

In the case of Connolly v Director of Public Prosecutions [2007], the defendant was a practising Catholic who believed that abortion was a form of murder. In 2005 she called various chemists to enquire as to whether they stocked emergency contraception. On confirmation that they did, she would send pictures of aborted foetuses. The defendant was subsequently charged under the Malicious Communications Act 1988 and later convicted.

However, with the increasing consumption of social media, the nature of the offences being prosecuted under the Malicious Communications Act 1988 is changing.

In a recent case, client X was charged with sending audio clips containing death threats to two high profile individuals. When sentencing this case, Chief magistrate Paul Goldspring said the actions of people committing offences under the Malicious Communications Act 1988 were part of a "modern phenomena" of people "hiding behind a keyboard to threaten, abuse or harass people in the public eye".

Interestingly, there are no specific Sentencing Guidelines for malicious communications. However, 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.

The case justified a guilty plea and JMW prepared mitigation. When adjourning for a probation report, the judge warned X that a custodial sentence was under serious consideration. Counsel prepared a very detailed written note for sentence and the Chief Magistrate felt able to impose a suspended period of imprisonment combined with a community penalty. This was a favourable outcome, having regard to sentences in similar cases. Nevertheless, the case demonstrated how instant decision making when posting to social media can have far reaching consequences.