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Criminal Defence Articles

Is it illegal to send abusive text messages?

The law criminalises harassment, threatening and abusive behaviour, and malicious communications. These days, text messages and other written communication via social media are one of the main forms of communication. Abusive texts can be illegal, and indeed this has now become one of the most common forms of harassment. However, whether abusive messages will result in a conviction depends on the precise content of the messages, and whether this falls foul of legislation. Read on to understand about the different laws that could apply to abusive text messages. Remember that there is no substitution for advice from a criminal defence solicitor.

Are abusive text messages illegal?

There are a range of different offences that prohibit abusive text messages, and they can seem quite similar in several ways. This can be confusing, as they seem to overlap, but they do contain important differences.

Text messages that create distress or anxiety

The Malicious Communications Act 1988 prohibits the sending of communications that intend to cause distress or anxiety. You could fall foul of this law if you send messages that are indecent or grossly offensive, which contain a threat, or contain information that is false and is known to be false by the sender.

Section 127 of the Communications Act 2003 criminalises the sending of material that is of an indecent, offensive, or demeaning character via an electronic communications network. A person commits this offence if:

  • for the purpose of causing annoyance, inconvenience, or needless anxiety to another
  • they send by means of a public electronic communications network, a message that they know to be false, or cause such a message to be sent; or
  • persistently make use of a public electronic communications network

Such an offence must be tried within 3 years of the date of the incident, and within 6 months of the charge coming to the attention of the prosecutor.

Abusive text messages could also constitute an offence under Section 4 of the Public Order Act 1986, which makes it a criminal offence to use threatening, abusive or insulting words, writing, or any other visible representation that is threatening, abusive or insulting. If the text message contains a threat to kill, this would be punishable under the more severe offence of Section 16 of the Offences Against the Person Act 1861.

Sending multiple text messages

Repeatedly sending the same person unwanted text messages or other social media communications is a form of harassment pursuant to the Protection from Harassment Act 1997.

Harassment is both a criminal offence and a civil wrongdoing, which means that in addition to making a criminal complaint against you, the victim could also theoretically sue you for compensation.

Usually, in order to count as harassment, there must be more than one text message. It could also be another type of communication, such as an email, or a mixture of both. Text messages do not need to be overtly abusive or threatening to comprise harassment, but they must be persistent and unwanted. Sending unwanted explicit images can also be a form of harassment. In addition, depending on the content of the pictures, it could be in breach of other laws, such as those concerning indecent images. Where the messages put the recipient in fear of violence, a more serious offence is committed.

What will happen if I am reported to the police for sending abusive messages on WhatsApp or Instagram?

Where the police receive a report of abusive messages that appear to constitute a criminal offence, they will launch an investigation to determine whether an offence has been committed. In investigating an alleged offence, the police are obliged to look into all reasonable lines of inquiry, both those that suggest an offence has been committed, and those that support any defence which the defendant is likely to put forward.

The police will either arrest the suspect or invite the suspect to a voluntary interview, which will take place under caution. If you are invited to an interview, even if it does not take place under arrest, you have the right to legal representation during the questioning, and to confidential legal advice beforehand.

The investigating officer will contact witnesses who may have relevant evidence to contribute to the case and ask them to make a statement. If you are arrested, electronic devices such as your mobile phone and laptop could be seized by the police, and their contents examined. The police have, or are able to access, technology that enables them to perform mobile phone extraction on many mobile phones, even if you refuse to provide your pin code. Where information that is relevant to the case is identified on your device, the police can extract some or all of the data contained on your phone and create a duplicate of it that will be introduced as evidence in the case.

Is it illegal to send anonymous text messages and emails?

Sending anonymous messages or emails is not a criminal offence in and of itself, but if you sent the messages intending to cause harm or distress, you could be committing an offence.

For example, there are online web services through which it is possible to send an anonymous text message. Say you sent a message using this service but forgot to include your name. As long as the message was not harassing, offensive, threatening, or abusive, no offence would be committed. However, if the messages are abusive, sending them anonymously may contribute to the perception that they are threatening.

What is the punishment for sending abusive text messages?

The punishment that you could face for sending abusive text messages varies depending on the legislation you are prosecuted under. The table below sets out the different offences, which court they will be heard at, and the sentencing options available.

 

Offence Court Maximum sentence Sentence range Factors which will be taken into account for sentencing
Communications with intent to cause harm and distress pursuant to

Section 1 The Malicious Communications Act 1988

Magistrates’ Court or Crown Court Magistrates’ Court

6 months’ imprisonment if the case was committed before 2 May 2022, or 12 months if committed after

Crown Court

2 years’ imprisonment

No published sentencing guidelines No published sentencing guidelines
Improper use of public electronic communications network Section 127 Communications Act 2003 Magistrates’ Court Unlimited fine or 6 months’ custody Band A fine – 15 weeks custody The offence will have higher culpability if you:

–       target a vulnerable victim

–       target offending in terms of timing or location) to maximise effect

–       use threats (including blackmail)

–       threaten to disclose intimate material or sexually explicit images

–       Make multiple calls and/or wide distribution

–       Make false calls to emergency services

–       Are motivated by hostility based on any of the following characteristics or presumed characteristics of the victim(s): religion, race, disability, sexual orientation or transgender identity

Intentional harassment, alarm or distress, Section 4A Public Order Act 1986 Magistrates Court 6 months’ imprisonment or an unlimited fine No sentencing guidelines published No sentencing guidelines published
Threats to kill, Section 16 Offences Against the Person Ac 1861 Crown Court 10 years’ imprisonment Community order to 7 years’ custody Culpability will be higher where there is:

–       Significant planning and/or sophisticated offence

–       Visible weapon

–       Threat(s) made in the presence of children

–       History of and/or campaign of violence towards the victim

–       Threat(s) with significant violence

–       Very serious distress caused to the victim

–       Significant psychological harm caused to the victim

–       Offence has a considerable practical impact on the victim

 

Harassment, Section 2, Protection from Harassment Act 1997 Magistrates’ Court 6 months imprisonment or an unlimited fine Discharge to 26 weeks custody Culpability will be higher where there is:

–       Conduct intended to maximise fear or distress

–       High degree of planning and/or sophisticated offence

–       Persistent action over a prolonged period

–       Threat of serious violence

–       Offence motivated by, or demonstrating hostility based on any of the following characteristics or presumed characteristics of the victim: age, sex, disability, sexual orientation or transgender identity

–       Very serious distress caused to the victim

–       Significant psychological harm caused to the victim

–       Victim caused to make considerable changes to lifestyle to avoid contact

Putting people in fear of violence, Section 4, Protection from Harassment Act 1997 Magistrates’ Court or Crown Court 10 years’ imprisonment or an unlimited fine if the case is heard in the Crown Court

6 months imprisonment or an unlimited fine if the case is heard in the Magistrates’ Court

Fine to 8 years custody Culpability will be higher where there is:

–       Conduct intended to maximise fear or distress

–       High degree of planning and/or sophisticated offence

–       Persistent action over a prolonged period

–       Motivation demonstrating, hostility based on any of the following characteristics or presumed characteristics of the victim: age, sex, disability, sexual orientation or transgender identity

 

Where to get further help?

If you have been accused of sending abusive messages, you may have a defence available to you. A good criminal defence solicitor will explore the evidence that is available to support your account, including your intention at the time of sending the messages. At Stuart Miller Solicitors, we go the extra mile for our clients. Contact us for a no obligation consultation today.

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