The Malicious Communications Act 1988 and the Communications Act 2003 are two pieces of UK legislation that were designed to create the framework for offences related to the sending of communications. The 1988 legislation established Malicious Communications offences relating to the sending of letters and telephone messages, although its applications are not restricted to physical or analogue messages and are often applied to digital communications. The 2003 act expanded on this to provide specific guidelines for electronic communication and the internet. Here is a summary of the key points of each act, to help you understand how they are applied.

Malicious Communications Act 1988

This act makes it an offence to send or deliver letters or other articles for the purpose of causing distress or anxiety. Under this act, it became an offence to send a letter, electronic communication, or article of any description that conveys a message that is indecent or grossly offensive, a threat, or information which is false and known or believed to be false by the sender. To charge someone with this type of offence, authorities must demonstrate that the sender's intention was to cause distress or anxiety to the recipient.

The act also outlines penalties upon conviction for offences under the act, which may include a fine, imprisonment or both. While it was initially created before the widespread use of the internet for sending malicious communications, the Malicious Communications Act 1988 can still be (and often is) applied to various forms of communication including social media and email.

Communications Act 2003

This act is broader in scope and includes a range of provisions that strengthen the framework of the Malicious Communications Act 1988. Section 127 of the 2003 legislation is particularly noted for its relevance to the regulation of communications over the internet and other networks. 

This section makes it an offence to send or cause to be sent through a 'public electronic communications network' a message or other matter that is 'grossly offensive or of an indecent, obscene or menacing character'. It also includes sending a message that is known to be false for the purpose of causing annoyance, inconvenience, or needless anxiety to another. It also deals specifically with the sending of false messages with intent to cause annoyance, inconvenience, or anxiety. Penalties under this act are similar to those under the earlier law, and include fines and potential prison sentences.

Both acts have been the subject of scrutiny and debate, but have been increasingly applied to modern forms of communication by law enforcement, often to address issues ranging from cyberbullying and harassment to threats and the dissemination of false information.

If you are suspected of an offence under either of these acts, you should speak to a solicitor at your earliest opportunity. They can advise you on the charges you are facing, the nuances of the relevant legislation, and the defences that may be available.

Messages that may be illegal under the Malicious Communications Act 1988 and the Communications Act 2003 can take various forms, but offences generally involve sending or delivering some form of communication that is intended to cause distress, anxiety, or harm to the recipient. For example:

• Threats: communications that contain threats of harm or violence against the recipient or someone they know.
• Harassment: repeated, unwanted communications that amount to harassment, causing fear or distress to the recipient.
• Offensive or indecent material: sending material that is grossly offensive, indecent, or obscene, with intent to cause distress or anxiety.
• False information: sending false information with the intention of causing anxiety or distress.
• Discrimination: communications that are discriminatory or incite hatred based on race, religion, gender, sexual orientation, or other protected characteristics.

For a communication to be considered malicious under the act, it must be shown that the sender intended to cause distress or anxiety, or at least was aware that the communication might cause such an effect. This can often form the basis of a defence, and if you have been charged with an offence, it is vital to speak to a solicitor at once.

An offence under the Malicious Communications Act 1988 may be treated as a summary offence, but this will depend on the nature of the offence and the course that investigators believe is appropriate. Summary offences are the least serious type of criminal offence in the UK, and are dealt with in the Magistrates' Court. If the offence relates to a single comment posted on social media or sent to an intended victim, this may constitute a summary offence.

In more serious circumstances - for example, if a defendant persistently makes comments of an indecent, obscene or menacing character in what represents a targeted campaign of harassment, this may result in a higher charge. These cases may be heard by the Crown Court, which can also apportion more severe penalties. The act is designed to protect individuals from receiving threatening or distressing communications, and both the intention of the culprit and the effect on the victim are taken into account when determining appropriate penalties.

There are varying levels of seriousness and sentences of malicious communications punishment 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. The malicious communications sentencing guidelines are strict and require careful navigation, but carry a maximum sentence of time in prison, an unlimited fine or both in serious cases.

If a person is found guilty of an offence under the Malicious Communications Act 1988, they may be sentenced to prison for a maximum sentence of up to 12 months, or receive 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 defendants may receive a custodial sentence.

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.

A distinction must be made between the right to express oneself and something that is unnecessary or harmful in a criminal context. For example, in the relevant circumstances, a particular message may seem like an expression of free speech but may in fact cause distress or anxiety in its intended recipient. These circumstances can be complicated and must be explored fully by an expert solicitor to ensure that you are treated fairly during the investigation process.

As set out above, the offences and what the prosecution must prove are complex. It is, therefore, important that you have thorough and robust legal advice in defending such alleged offence(s).

There are several ways that an experienced criminal defence solicitor can support someone accused of offences under the Malicious Communications Act 1988 or the Communications Act 2003. JMW's criminal law experts can provide tailored support from the very start of an investigation, through to legal representation if your case proceeds to trial.

If you are asked (or compelled) to attend an interview with the police or another authority, we can prepare you for your interview and help you to answer questions truthfully without incriminating yourself. JMW will always make sure you are treated fairly during an investigation and that you are not made to answer irrelevant questions or provide privileged information. Our guidance can help to make sure you comply with any legal obligations to investigators.

Thanks to their detailed knowledge, our solicitors can offer expert legal advice on the specifics of the Malicious Communications Act, to help you understand the charges, the legal implications, and the potential outcomes. We can help in gathering evidence and preparing a strong defence. This may involve collecting witness statements, digital records, and any other relevant documentation that can support the case, and piecing together an effective defence with a view towards mitigating penalties or proving your innocence.

After building your defence, we can represent you in court to present the defence effectively, question witnesses, and argue any legal points with the prosecution. Because we invest the time to understand our clients and their circumstances, we can always work towards the goal that you wish to achieve, and advise you on the likely potential outcomes of your case.

If you are found guilty (or decide to plead guilty), a JMW solicitor can assist in presenting mitigating factors to the court to potentially reduce the severity of your sentence. This can include showing remorse, highlighting the defendant's character and background, or demonstrating that the communication was out of character. In some cases, our solicitors can negotiate with the prosecution to possibly reduce charges or agree on a lesser sentence, depending on the circumstances of the case. We will also offer our guidance on how you should plead at the outset based on the evidence and the specific circumstances of your case. This includes providing an overview of the implications of such a plea, so you are empowered to make the best decision for you.

Legal proceedings can be complex and daunting. A solicitor can guide you through the process by explaining procedures and preparing you for what to expect at each stage. We help you to navigate the complexities of the law, ensure your side of the story is heard, and work towards the most favourable outcome possible under the circumstances. That means protecting your rights - including the right to a fair trial and the right to appeal a decision - at all stages.