Criminal Defence Articles

A Guide to Malicious Communications Act Offences

Social media has transformed the way that we communicate with one another. Whilst there are many advantages to our faster, more connected world, as we all know, communicating digitally can sometimes lead to misunderstandings and miscommunications. One person’s light-hearted banter can be interpreted as a scathing insult by another. The digital world also opens up the possibility of new types of abusive behaviours such as online harassment and cyber bullying. This article explores the offences under the Malicious Communications Act, including doxing and racially aggravated crimes. It looks at what will happen if you are convicted, and the sentence that you could face it you are found guilty. It also looks at the possible defences that you may be able to rely upon.

What are malicious communications offences?

The Malicious Communications Act 1988 (MCA) deals with the sending of offensive communications. It was written before the widespread use of the internet. However, in this day and age, it is frequently used to prosecute offences that are committed on social media.

The MCA makes it an offence to send any kind of written, verbal or electronic communication that conveys a message that:

  • is indecent or grossly offensive;
  • makes a threat; or
  • contains information that is false and known or believed to be false by the sender.

In order for the offence to be made out, the defendant must have intended to cause distress or anxiety to the recipient or any other person that he or she intends that the information should be communicated to.

According to the Crown Prosecution Service (CPS), a communication that is merely a blog or a comment posted on a website may not suffice as ‘sending to another’. When deciding whether an offence has been committed, the court will focus upon the intention of the sender, rather than the impact of the offence upon the recipient of the communication. The court is required to ensure that it understands why the particular language used by the message may be offensive to intended recipient(s).

The courts have to step carefully when interpreting the phrase ‘indecent or grossly offensive.’ This is because they are required to uphold the right to freedom of expression as established by Article 10 of the European Convention on Human Rights. When deciding whether a communication meets the test of ‘indecent or grossly offensive’ the courts will:

  • consider the standards of a reasonable person and how they would react to the communication;
  • balance the need to uphold the values of an open, just and multiracial society; and
  • take into account the context and all relevant circumstances.

For those facing charges under the MCA, this could all seem very abstract. What the court is trying to do, however, is ensure that you aren’t getting prosecuted for something that should be within your basic rights to communicate.

In order to secure a conviction, the prosecution will need to convince the court beyond reasonable doubt that the communication that was sent was malicious, and that the sender intended it to cause harm or distress. In general, the courts of England and Wales will only be able to hear the case if the crime took place in England or Wales. However, there have been cases where prosecutions have been brought in relation to information posted on foreign websites, where the information has been accessed or downloaded in those countries.

What are racially aggravated malicious communications?

Racially aggravated malicious communications are those that are motivated by racial hatred, hostility, or intolerance. Sections 145 and 146 of the Criminal Justice Act 2003 provide that where an offence is a hate crime, the defendant will receive a longer sentence.

What is doxing?

Doxing (sometimes spelled ‘doxxing’) is a cyber-attack where the true identity of an internet user is revealed. The attacker then posts the person’s details on a public forum on the internet, enabling other service users to troll them with malicious attacks. Whilst those revealing a person’s identity may have a seemingly valid intention, such as calling out neo-Nazism, incorrect identifications can have dangerous consequences for those who are thrust into the limelight. The CPS has confirmed that, where appropriate, doxing will be prosecuted under the MCA.

What happens if you are found to be sending malicious communications?

If the court finds that you have sent malicious communications, you will receive a conviction. You may receive a fine, a prison sentence, or both. Whilst the penalty may not be severe, this conviction would show up on a Disclosure and Barring Service (DBS) check when you apply for a job. In certain professions, you would need to declare the conviction to your regulator, such as the Solicitors Regulation Authority or the Financial Conduct Authority, who would then investigate whether you are still suitable to continue your role. This could result in you losing your job.

Is malicious communication a summary only offence?

Malicious communications is not a summary only offence; it is an either way offence. This means that the defendant will be able to elect whether the case is heard in the Magistrates Court or the Crown Court. There may be some advantages to having your case heard in the Crown Court – for example if you think that a jury might be more sympathetic to your case than a Magistrate. However, the potential custodial sentence, if you are convicted, is longer in the Crown Court than in the Magistrates’ Court. Which court to choose is a decision that you should make in conjunction with your criminal defence solicitor.

What are the malicious communications sentencing guidelines?

The MCA states that the maximum sentence for the offence is two years’ imprisonment or a fine or both if the matter is heard in the Crown Court. If the matter is heard in the Magistrates Court, the maximum sentence is imprisonment for a term not exceeding 12 months, or a fine, or both. Currently, there are no guidelines from the Sentencing Council explaining the factors that the court should take into account upon sentencing.

Are there any malicious communications defences?

If the defendant is accused of making a threat, it is a defence according to Section 1(2) of the MCA if they can show that the threat was used to reinforce a demand that was made by them on reasonable grounds and they believed that the use of the threat was a proper way of reinforcing the demand.

Another common defence to malicious communications hinges on the guilty mind requirement of the defendant. If you have been accused of this offence, but your intention in sending the communication was not to cause harm or distress, but something else, then your legal team will need to gather evidence to support your motivation for the communication. This could include your own witness testimony, witness statements from others who were aware of your true intention, or any other proof you have of the reason that you made the communication.

General defences

General defences relate to the defendant, rather than to the crime, and include:

Duress: You may be able to rely upon the defence of duress if you were forced or pressurised by a person or a set of circumstances to send the malicious communications. The court will consider how serious you believed the consequences would be if you did not commit the offence.

Insanity: To succeed in this defence, you need to go further than simply show that you were suffering from mental health issues at the time of the offence. You would need to show that due to mental illness, you lacked the ability to reason such that you did not know that the act that you were doing was against the law. This could mean that either you were unaware that the information you were providing was false, or that, due to your mental health issue, you did not understand that providing false information was a crime, or that it would be likely to cause offence.

Mistake: This defence could apply if you were mistaken as to certain factual circumstances and would not have committed the offence if you had known otherwise. You cannot rely on your mistaken understanding of the law as a defence.

Automatism: If you were not aware of your actions when committing the offence, in some rare circumstances, you may be able to rely upon the defence of automatism. Generally, if you were under the voluntary influence of alcohol or illicit drugs, you will not be able to rely on this defence.

Where to get further help

If you or a loved one has been accused of a malicious communications offence, make sure that you receive the best possible legal advice as soon as you can. The friendly and highly experienced team at Stuart Miller Solicitors are here to help you with robust advice and realistic guidance on your options. Instructing the right criminal defence solicitors may just make all the difference. Contact us today for a no-obligation consultation.

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