A Guide to Racially Aggravated Malicious Communications Offences

In the current political climate, race is a highly sensitive issue. Consequently, the UK courts adopt a particularly harsh response to racially aggravated crimes in order to outline the socially unacceptable nature of these types of offences. If you’ve been charged with this offence, you might be wondering what could happen next, and you may even be wondering how the offence of racially aggravated malicious communications interacts with the right to freedom of speech, which is hotly debated in the press. These topics will be explored in this article; in the first section, we look at what comprises a racially aggravated malicious communications offence and provides some examples. The second section considers the sentencing guidelines, looking at what factors may lead to the court imposing a longer or shorter sentence. The final section considers the possible defences that you may be able to rely upon if you are charged with racially aggravated malicious communications.

What are racially aggravated malicious communications offences?

The offence of sending malicious communications is set out in the Malicious Communications Act 1988 (MCA). The elements of the offence are as follows:

1. The defendant must make a communication to the victim. This can include sending:

• an email.
• a text message, or
• a private message via a social media site

It can also include a verbal message e.g. a voicemail message or voice note, or handwritten message, such as a letter or note. It does not usually include messages that are published in a public forum, but which are not directed to anyone specific (such as a Facebook post).

2. The message must be indecent or grossly offensive, or make a threat, or contain information that is false and known and believed to be false by the sender. A racially aggravated malicious communication could be offensive, threatening, or contain false information. In addition, the message will be motivated by racial hostility.

When interpreting the phrase ‘grossly offensive’, the court must have regard to Article 10 of the European Convention on Human Rights. This sets out the right to freedom of expression. The right to freedom of expression is a limited right; this means that the court must undertake a proportionality exercise, which means the court must balance the importance of freedom of speech against the standards of the reasonable person, and whether they would find the communication offensive. In conducting this exercise, the court must adopt the standards of an open, just and multiracial society. This means that the court is very unlikely to find that the right to freedom of speech justifies a communication that is grossly offensive on racially aggravated grounds.

3. The court must find that the defendant intended to cause distress or anxiety to the intended recipient of the message.

What are some examples of racially aggravated malicious communications?

Here are some examples of messages that would likely meet the legal test for racially aggravated malicious communications:

• An email from one co-worker to another, which uses threatening and racially offensive language, warning him against applying for a promotion and threatening him with the consequences if he does.
• A voice note sent by a man to his ex-partner via WhatsApp, using racist language to insult her new partner.
• A handwritten note posted through a woman’s letterbox by her neighbour, which suggests that she and her family are not welcome in the neighbourhood and should go back to the country that they come from.
• A direct message sent through Instagram by a schoolchild to one of their peers using racially offensive language to insult their hairstyle.
• A caller who makes hoax calls to a person pretending to be from the Home Office and threatening to have the person deported to their country of origin for overstaying.

What are the racially aggravated malicious communications sentencing guidelines?

The sentencing for crimes under the MCA is set out in the statute itself. The law establishes that if the offence is a summary offence (i.e. the trial is heard in the Magistrate’s Court) the defendant could face imprisonment of up to 12 months, or a fine, or both. If the case is heard on indictment (i.e. in the Crown Court) the offence will be punishable with a prison sentence of up to 2 years. There are no published sentencing guidelines for this offence, but when deciding on what sentence to impose, the court will consider any aggravating or mitigating factors that may apply.

Section 145 and 146 of the Criminal Justice Act set out sentencing guidance for racially aggravated crimes. Where the motivation for a crime is racial hostility, this must be treated as an aggravating factor. It must be stated in open court that race was an aggravating factor. The defendant will be given a heavier sentence than if the crime were not motivated by race or religion.

Are there any defences to racially aggravated malicious communications?

There are various possible defences to the charge of racially aggravated malicious communications.

Not racially aggravated

If you accept that you sent a malicious communication but deny it was motivated by racial hostility, you can challenge that aspect of the charge. If you succeed, the absence of this aggravating factor will be reflected in you receiving a lighter sentence.

Making a legitimate demand for payment

It is a defence if the maker of the communication can show that they were seeking to enforce a demand that was made on reasonable grounds. To be able to rely upon this defence you must be able to show that you honestly believed that making a threat was a valid way of enforcing a demand.

Not a malicious communication

There are also several defences that can be put forward that argue that the legal test for a malicious communication has not been met. Whether you are able to rely upon one of these depends on the facts of your case. You should seek the advice of a criminal defence solicitor on your own personal options.

For example, there are certain types of online publication that are more likely to be taken as a general statement of opinion rather than a communication. For example, if a person publishes an opinion on a social media platform as a public post or a blog, this may not be found to be a communication.

If you genuinely did not intend any harm to the recipient when you made your communication, you may be able to defend yourself on the basis that you did not have malicious intent. In reaching a conclusion on this ground, the court will consider evidence of the mindset of the defendant rather than the impact of the communication upon the recipient. In cases where pejorative slang was used, the court must explore and seek to understand why the language used was offensive in that particular context, i.e. between the sender and the recipient.

General defences

In addition to the specific defences highlighted above, the law provides for various general defences that you may be able to rely upon.

Mistake: If you were mistaken as to the factual circumstances and would not have committed the offence if you had known otherwise, this defence may be available to you. For example, you may have written a colleague an email containing information that you genuinely believed at the time of writing to be true. However, you could still be convicted if the court found that the message was also grossly offensive.

Duress: The defence of duress applies to circumstances where a person or situation forced or pressurised you to act. For example, if you made the communication because a person compelled you to do so and threatened you with serious consequences if you did not comply with their threat.

Insanity: You may be able to rely upon this defence if a psychiatrist can testify on your behalf that you suffered from mental health issues that caused you to lack the ability to reason to the extent that you did not know that what you were doing was against the law.

Automatism: This defence could apply if you were not aware of your actions whilst committing the offence. You will not be able to rely on this defence if your lack of awareness was due to voluntary intoxication with drugs or alcohol.

Self-defence: This defence applies to circumstances where you acted to protect yourself or someone else against an immediate threat to their person or property. It is unlikely to apply to malicious communications offences, and it is especially unlikely to be taken by the court to justify racially aggravated behaviour.

Where to get further help

If you have been accused of a racially aggravated malicious communications offence, look no further than Stuart Miller Solicitors. Our team of criminal defence solicitors are here to help. We will offer you robust and realistic advice tailored to the facts of your case. If you wish to plead not guilty, we will use our extensive legal expertise to help you to put forward your defence. Contact us for a no obligation consultation today.