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Think twice before sending certain communication on social media – you could be committing a criminal offence!

Yousef Makki, a 17-year-old from Burnage in Manchester, tragically lost his life on 2 March 2019 after being attacked in Hale Barnes. A 17-year-old, who was referred to as ‘Boy A’, was accused of killing Yousef in a row over an attempt to rob a drug dealer.

The boy admitting stabbing Yousef Makki but stated that he was acting in self-defence. The boy was found not guilty of murder and manslaughter, following the jury reaching its decision after a four week trial at Manchester Crown Court.

It transpired that the boy, who was granted bail during the course of the trial, recorded a video which was subsequently sent to someone in Yousef’s family. In the video, the boy is purportedly in a toilet cubicle and starts making stabbing motions while listening to music about ‘blades’ and ‘shanks’.

The police are now investigating whether the person who sent the video to Yousef’s family have committed an offence under the Malicious Communications Act 1988 (“the Act”).

Section 1 of the Malicious Communications Act 1988 sets out the following:

  1. Offence of sending letters etc. with intent to cause distress or anxiety.

(1) Any person who sends to another person—

(a) a [letter, electronic communication or article of any description] which conveys—

(i) a message which is indecent or grossly offensive;

(ii) a threat; or

(iii) information which is false and known or believed to be false by the sender; or

(b) any [article or electronic communication] which is, in whole or part, of an indecent or grossly offensive nature,

is guilty of an offence if his purpose, or one of his purposes, in sending it is that it should, so far as falling within paragraph (a) or (b) above, cause distress or anxiety to the recipient or to any other person to whom he intends that it or its contents or nature should be communicated.

Whilst social media is constantly evolving in a perpetual technological era, the Act clearly pre-dates more recent social media platforms such as Twitter and Instagram. However, these are still clearly covered by the Act under Section 1(a) which includes electronic communication.

The mental element is a key element of this offence; the person sending the communication must do so with the intent of causing distress or anxiety to the recipient. There is no requirement that the purpose of the sender should be to damage the health of the recipient. If we were instructed by someone who had been charged with this offence, we would carefully consider the circumstances surrounding the communication and what led to it being made.

In the case of Connolly v DPP [2007] EWHC 237 (Admin), the appellant (C) appealed against conviction for three offences contrary to the Malicious Communications Act 1988. C who was an anti-abortion campaigner, sent photographs of aborted foetuses to pharmacies that sold the morning-after pill. The photographs sent were found to be indecent or grossly offensive with the purpose of causing distress of anxiety to the recipients. One of the arguments advanced by C was that her rights under article 9 (freedom of thought, conscience and religion) and/or article 10 (freedom of expression) were engaged and that prohibiting her from sending the photographs would interfere with her rights. It was found that the restriction on her ‘freedom of expression’ was justified in order to protect the rights of others in accordance with article 10(2).

It is a defence if the sender can show that in relation to a threat, it was made to reinforce a demand made on reasonable grounds if he believed that the threat was a proper means to reinforce the demand.

A person found guilty of this offence may be sentenced to imprisonment for a term not exceeding 12 months or a fine or both (on summary conviction) or imprisonment for a term not exceeding 2 years or a fine or both (on conviction on indictment).

Of course at this stage it is not known whether the person who sent the video will be charged with an offence under the Act, however we will watch with interest to see if there are any further developments.

Our Business Crime and Regulatory team have extensive experience in providing advice and guidance on the offences outlined above. If you require advice please feel free to get in touch with a member of our team on 0345 872 6666.

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