Malicious Communications Act Offences

If you are concerned about an allegation in relation to malicious communications, it is important to have expert legal representation from the outset to ensure that you receive the right advice and approach to the case.

Those accused of an offence under the Malicious Communications Act 1988 and Communications Act 2003 are unlikely to be familiar with the legal system and unaware that what may have been thought of as a simple message on social media can have life-changing consequences, including imprisonment.

Our expert business crime solicitors are experienced in dealing with the legal implications of sending malicious communications, and are well-positioned to defend those who have been accused of committing such offences. Our clients have included celebrities, sportspersons, and politicians, each with high profiles to protect.

The claims can be serious but, due to the nature of the offence, context can be crucial. Our solicitors will be able to analyse your situation and provide you with advice and representation, should you require it, to help avoid harm to your reputation, employment and finances. We often work with colleagues from our media and commercial litigation teams in this respect.

To instruct one of our expert solicitors today on a private fee paying basis, contact us on 0345 872 6666. Alternatively, fill in our online enquiry form and we will get back to you.

How JMW Can Help

Our private client criminal law service is designed to provide a first-class level of care to those facing allegations of malicious communication offences. The bespoke nature of our service means we are able to be dedicated and thorough in our approach to the evidence. Legal cases can be highly stressful for those involved, and so we will work to alleviate as much of the responsibility from you as possible, so you can continue to go about your day-to-day life with minimal impact.

We are able to provide assistance throughout the legal proceedings. Our services include advising during an interview under caution, investigating the prosecution’s evidence, compiling the strongest possible case for your defence and representing you at all court hearings. We provide national representation and have experience in every court in England and Wales, whether it be the Magistrates’ Court or Crown Court.

To successfully prosecute someone for malicious communications, points to prove include:

• Proving that the accused’s communications were intended to cause distress
• Proving that the communications were sent

The prosecution also have to demonstrate that the evidence meets a particular threshold and that prosecution is in the public interest.

Today, a large number of criminal offences can be committed using social media. Offences may be committed under the Malicious Communications Act 1988 (in particular, section 1) and, or the Communications Act 2003.

Potential Offences Under The Malicious Communications Act 1988

Under this area of law, malicious communications are communications from one person to another by letter, electronically, or an article of any description 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 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.

Potential 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

What are the penalties for a malicious communication offence?

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.

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 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 a sentence of imprisonment may be received.

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.

A distinction must be made between the right to express oneself and something that is unnecessary or harmful in a criminal context.

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).