This article aims to answer some of these questions. We explore malicious communications offences and the defences that you may be able to rely upon. We also look at what will happen if you get a caution for malicious communications. We hope that you will walk away with a better understanding of the possible outcome of your malicious communications case.
The Malicious Communications Act 1988 (MCA) addresses the sending of offensive communications. 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.
A malicious communication can include any kind of written, verbal, or electronic communication that conveys a message that is:
Sending malicious communications is a crime punishable by a sentence of imprisonment, a fine, or a community order, depending on the severity of the offence. In order to be convicted, the prosecution will need to prove beyond reasonable doubt that you committed the offence of sending malicious communications.
Malicious communications is not a summary only offence; it is an either way offence. This means that you, the defendant, can choose whether the case is heard in the Magistrates’ Court or the Crown Court. There are advantages and disadvantages to both options. You may choose to have your case heard in the Crown Court 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. Your criminal defence solicitor can advise you on the best option in your case.
The MCA does not provide a definition of what constitutes grossly offensive language.
When interpreting the phrase ‘indecent or grossly offensive’, the courts are obliged to take into account the right of the defendant to freedom of expression. This is set out in Article 10 of the European Convention on Human Rights. The Convention requires the courts to undertake a balancing act when deciding whether a communication meets the test of ‘indecent or grossly offensive.’ This includes considering the standards of a reasonable person and how they would react to the communication, and weighing this against the need to uphold the values of an open, just, and multiracial society. When making this assessment, the court must take into account the context in which the communication was made, and all relevant circumstances.
If you receive a caution for malicious communications, it will be entered on your criminal record. This means that when you apply for a job, it may show up as part of your Disclosure and Barring Service (DBS) check. Your malicious communications caution will show up on the DBS check for six years after it is given. After six years, it will remain on your criminal record, but it will usually be filtered from DBS checks (meaning it may not always show up on basic DBS checks). Nonetheless, on enhanced checks the employer may still be able to see some information regarding the police investigation into the offence. You may also have to disclose your caution when you are making other types of applications, such as an application for a visa to visit another country.
Is it a communication?
According to the CPS, a communication that is merely a blog or a comment posted on a website may not suffice as sending to another. This means that a possible defence is that the item in question was not a communication.
Is it malicious?
Another possible defence is that the communication was not malicious. When deciding whether an offence has been committed, the court will focus on 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 the intended recipient(s).
A threat to enforce a demand
If you are accused of making a threat, it is a defence according to Section 1(2) of the MCA, if you can show that the threat was used to reinforce a demand that was made on reasonable grounds and you believed that the use of the threat was a proper way of reinforcing the demand.
Another common defence to malicious communications is that you did not have the guilty mind requires to commit the offence. You may be able to argue that your intention in sending the communication was not to cause harm or distress. Perhaps you had another compelling reason to make the communication.
For example, a person could legitimately raise grievances with their neighbour, accusing them of being loud and intoxicated. If this situation is true, and the motivation for the communication was to ask the neighbour to be quieter, then the communication may not be malicious. However, using foul language or other offensive words is likely to suggest that the communication had a malicious intent.
Insanity: To succeed in this defence, you need to do more than simply show that you were suffering from mental health issues at the time of the offence. You would need to show that because of your mental impairment, you lacked the ability to reason such that you did not know that the act that you were committing broke the law. This could mean that either you were unaware that the information you were providing was false, offensive, or threatening, or that, due to your mental health issue, you did not understand that providing false, offensive or threatening information was a crime.
Duress: This defence may be available to you 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.
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.
If the matter is heard in the Crown Court, the maximum sentence for the offence is two years’ imprisonment, or a fine, or both. 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. There are no published guidelines from the Sentencing Council explaining the factors that the court should take into account upon sentencing, but it is likely that certain factors that usually ‘aggravate’ (make worse) a crime (for example, sending malicious communications to someone based on their sexual orientation, gender, age, or other protected characteristic) would result in a harsher punishment.
If you or a loved one has been accused of malicious communications, seek advice from a criminal defence solicitor as soon as possible. At Stuart Miller Solicitors, our friendly and professional team are ready to advise you upon your case. We will ensure that you understand the criminal justice process, and we will advocate on your behalf to help you get the best possible result. Instructing the right lawyers may just make all the difference. Contact us for a no-obligation consultation today.