Allegations under the Malicious Communications Act 1988 often involve electronic messages said to be grossly offensive, threatening or false, that are sent with the intention of causing distress. These offences are prosecuted with increasing frequency, particularly where online or social media communication is involved.

Understanding how the offence is treated in court is important. In many cases, malicious communications are prosecuted as summary offences, meaning they are heard in the Magistrates’ Court. However, this is not always the case, especially where the content or context of the communication is more serious.

In this blog, we explain how malicious communications offences are classified, what the sentencing guidelines say and how JMW's expert malicious communication solicitors can help protect your position if you are facing charges.

What Does the Law Say About Malicious Communications?

Malicious communications are dealt with under the Malicious Communications Act 1988, which makes it an offence to send a communication that is:

• Indecent or grossly offensive.
• Threatening or false.
• Sent with the intention of causing distress or anxiety to the person intended to receive it.

The offence applies to emails, text messages, online messages and any other form of electronic communication, along with physical letters. It also covers use of public electronic communications networks, including social media platforms. The prosecution must prove that the particular message was sent with intent to upset the intended recipient - not necessarily the person who actually received it.

This is not the same as sending something ill-judged or simply in poor taste. The court will examine the particular context, the relevant circumstances and whether there is sufficient evidence to prove the required intent beyond a reasonable doubt.

The Communications Act 2003 and related offences

Where messages are sent over social media or other online platforms, some cases may instead be prosecuted under section 127 of the Communications Act 2003. This applies where a message is sent using a public electronic communications network and is:

• Grossly offensive, indecent, obscene or menacing in character.
• False, and sent with the intention of causing needless anxiety.

Although offences under this act are also summary only, they are based on different legal criteria than those under the 1988 act. Prosecutors decide which legislation to use based on the nature of the message, how it was sent and its potential impact.

Is malicious communications a summary offence?

Offences under section 1 of the Malicious Communications Act 1988 are now summary only, meaning they are normally dealt with in the Magistrates’ Court. This follows changes introduced by the Police, Crime Sentencing and Courts Act 2022, which removed the earlier option for these cases to be treated either way - meaning they could no longer be tried in either the Magistrates’ Court or the Crown Court depending on the circumstances.

However, where the facts suggest more serious or sustained conduct - such as repeated abuse, threats or messages forming part of a broader pattern - the Crown Prosecution Service may consider alternative or additional charges. These could include harassment, public order offences or threatening communications, depending on how the message was sent and the level of harm caused. Some of these offences are triable either way and could lead to proceedings in the Crown Court.

In some cases, both the 1988 act and other legislation - such as the Communications Act 2003 - may be used together if the evidence supports more than one charge.

Defending a malicious communications charge

While malicious communications offences often involve deeply unpleasant or offensive material, the courts must also consider the sender’s right to freedom of expression under Article 10 of the European Convention on Human Rights (ECHR). This includes the right to express views that may be shocking or offensive - provided they do not cross into criminally harmful territory.

Potential defences to these offences include:

• No intention to cause distress.
• No clear link between the communication and the intended victim.
• The message was not grossly offensive, false or threatening.
• The sender had a reasonable excuse.
• The sender was affected by mental health conditions at the time.

Whether a malicious communication charge stays in the Magistrates’ Court or proceeds further depends in part on whether these defences are raised and how they are supported by the facts. The court will assess the particular context, looking at the content, platform, intent and effect of the message before deciding how to treat the offence.