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Knowing what constitutes a crime is sometimes not clear. You could commit a crime without even knowing, and unfortunately and unfairly for many, it is no defence to a crime to say you did not know that what you were doing was a crime in the first place. For this reason alone, getting advice from qualified malicious communications solicitors is imperative.
An overview of the offence of sending a malicious communication
Under the Malicious Communications Act 1988, it is a crime to send, with the intention to cause distress or anxiety, a letter or electronic message that is that is indecent or grossly offensive, constitutes a threat, or which conveys information that is false and known or believed to be false by the sender. This is what is known as a ‘malicious communication’.
Similar to the malicious communications offence are the offences under the Communications Act of 2003. It is a crime under that Act to send a message by means of a public electronic communications network that is grossly offensive or of an indecent, obscene, or menacing character, or cause any such message or matter to be so sent. Someone will also be guilty if they, for the purpose of causing annoyance, inconvenience, or needless anxiety to another, send by means of a public electronic communications network, a message that they know to be false, causes such a message to be sent or persistently make use of a public electronic communications network.
The offences under the two Acts are similar in the sense that they both outlaw grossly offence and indecent messages or “communications”. To read more about malicious communications offences, click here.
Malicious communications case examples
The law is very wordy when it comes to malicious communications and as such, it all seems very theoretical and vague. Most people find it useful to have some real-life examples to help them understand the offence.
Political and educational communications
In one case, a woman sent photos of aborted foetuses to pharmacies selling the morning-after pill. She was convicted for sending malicious communications. This example clarifies that you can be guilty of sending a malicious communication that is grossly offensive or indecent even if the communication is meant to be political or educational. It does not infringe your political or religious rights to be prohibited from sending these kinds of messages to others. So, even if your intention is partly to educate the recipient, while at the same time cause them anxiety, you could be guilty of the crime.
The statue in Bristol
A man was found guilty of sending malicious communications by sending emails to the Mayor of Bristol. The court found the emails to be indecent and grossly offensive. The man had been drinking while he sent the emails. Sometime before sending the emails, a statue was removed in the city of Bristol by protestors. The emails threatened harm to the protestors, raising the concerns of the Mayor. Even though he felt ashamed of his actions and admitted to being guilty of sending malicious communications, the defendant was sentenced to house arrest for 24 weeks, a fine of £85, and a £95 ‘victim surcharge’.
On social media
In a famous case known as the ‘Twitter Joke Trial’, Chambers posted a joke on Twitter about blowing up an airport. At the end of it all, Chambers was ultimately found not guilty, but only after being found guilty three times in the courts before that. He was initially fined £385 and had to pay the costs of £600. He also lost his job. This case, and the flip-flopping of the courts, reminds us how important it is to have a very convincing defence.
In 2019, two people were found guilty of sending malicious communications to various members of Parliament. The tweets involved threatening violence and labelling the members of Parliament unfavourably. This case made it clear that (1) malicious communications can include messages directed at persons via social media, like Twitter, and (2) that there need not be a history of harassment for the crime of malicious communications to apply – there can be a standalone communication that causes courts to find a person guilty of the crime.
Under the Communications Act, a man was found guilty of sending a communication that was false and which he knew to be false, with the intention of causing annoyance, inconvenience, and needless anxiety to the recipient. The guilty man had made a Facebook post that alleged a person had been found with pornographic photos of children. It included the full details of the man who allegedly had in his possession the pornography. The man obviously began to fear for his and his family’s safety. The guilty man was fined £200, a victim surcharge of £34 and the costs of the CPS, being £105.
There has also been a case in private law (not criminal law). A woman won £15,000 in private damages from her uncle who had posted a malicious post on Facebook. This was on the basis that the post revealed secret information that should have been kept private. This case, although not a criminal case, gives us a good idea of how seriously courts of all types find the offence, and how one ought to ask solicitors for advice on civil cases as well as criminal ones.
What are the sentencing guidelines for malicious communications?
The maximum sentence that can be ordered for sending a malicious communication is a prison sentence of up to two years or a fine of any amount, or both.
What are the possible malicious communication defences?
Several different types of defences may apply to malicious communications. Those are summarised below, but can be found in detail here.
- Reinforcing a demand. You may have a defence if you made a threat to reinforce a demand made on reasonable grounds and believe that the threat was the proper way of reinforcing the demand.
- That the message was not sent. If the message was not sent, you may be able to rely on a defence. If the intended recipient simply never received the message, you may still be guilty of the crime, as all the crime requires is for the message to be sent.
- Intention. It is a defence to show that the intention was not to cause distress or anxiety, in other words, that the intent was not malicious. The prosecution must prove your intention beyond a reasonable doubt, which is a high standard of proof.
- That you did not know the content of the message was false. The crime requires you to know information was false in the event you are accused of sending false information. It is therefore a defence to show that you did not know the information was untrue at the time of sending.
General defences
Whether a general defence applies depends on the circumstances at the time of the alleged offence. This can be a complicated matter, and this is where you need to ask your solicitor for help.
Mistake: Being mistaken of certain facts may be a defence to the crime of sending malicious communications. The court will consider whether your belief was honest, and if it was reasonable in the circumstances.
Automatism: There is a defence available to you if you were not in control of yourself when committing the offence. Sleepwalking is a common example of this defence. You cannot rely on this defence, however, if you were voluntarily drunk or drugged.
Intoxication: There is sometimes a defence if you were so drunk or drugged that you had no capacity to act properly. However, courts only accept involuntary intoxication (if someone drugged you, for example) as an excuse for criminal behaviour.
Duress: You may have a defence if you were forced to commit the offence by someone or some circumstance. If, for example, someone said they would punch you if you didn’t send the message, you may be able to rely on the defence.
Insanity: If due to mental illness, you lacked the capacity to even know what you were doing was against the law, you may have a defence. But be careful – a successful defence means that you may be kept in an institution instead of prison and the defence can be costly as it requires using experts in the field to provide evidence.
What does a successful defence achieve?
A successful defence may lead to you avoiding punishment altogether by being found innocent, or it may mean you simply get a lesser punishment (such as a lower fine or shorter sentence). Everything depends on the facts and how serious the judge sees your offence as being.
Where to find help if you have been accused of sending a malicious communication
If you have been accused of sending a malicious communication, contact Stuart Miller Solicitors as soon as possible. Almost every case is different, which means defences can be complicated. The team at Stuart Miller Solicitors can provide a no-obligation consultation to help you think through your first steps, so get in touch today so we can do our best to put your mind at ease.
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