Malicious Communications Act Offences

If you are concerned about an allegation in relation to malicious communications, it is important to have expert legal representation from the outset to ensure that you receive the right advice and approach to the case.

Those accused of an offence under the Malicious Communications Act 1988 and Communications Act 2003 are unlikely to be familiar with the legal system and unaware that what may have been thought of as a simple message on social media can have life-changing consequences, including imprisonment. The Online Safety Act 2023 added new offences and repealed others, which can further complicate matters.

At JMW, our expert criminal defence solicitors are experienced in dealing with the legal implications of sending malicious communications, and are well-positioned to defend those who have been accused of committing such offences. Our clients have included celebrities, sportspersons, and politicians, each with high profiles to protect.

Claims can be serious but, due to the nature of the offence, context is crucial. Our solicitors will be able to analyse your situation and provide you with advice and representation, should you require it, to prevent harm to your reputation, employment and finances. We often work with colleagues from our media and commercial litigation teams in this respect.

To instruct one of our expert solicitors today on a private, fee-paying basis, contact us on 0345 872 6666. Alternatively, fill in our online enquiry form and we will get back to you.

How JMW Can Help

Our private client criminal law service is designed to provide a first-class level of care to those facing allegations of malicious communication offences. The bespoke nature of our service means we can be dedicated and thorough in our approach to the evidence. Legal cases may be highly stressful for those involved, and so we will work to alleviate as much of the responsibility from you as possible, so you can continue to go about your day-to-day life with minimal impact.

We are able to provide assistance throughout any legal proceedings. We have extensive knowledge of this area of the law and a track record of success in defending individuals accused of related offences. Our services include advising during an interview under caution, investigating the prosecution’s evidence, compiling the strongest possible case for your defence and representing you at all court hearings. We provide national representation and have experience in every court in England and Wales, whether it be the Magistrates’ Court, Crown Court and Court of Appeal.

Today, a large number of criminal offences can be committed using social media. Offences may be committed under the Malicious Communications Act 1988 (in particular, section 1), the Communications Act 2003 and/or the Online Safety Act 2023. To successfully prosecute someone for malicious communications under one of these acts, points to prove may include:

• The accused’s communications were sent
• The communications were intended to cause distress or non-trivial harm
• They were grossly offensive, indecent, obscene, or menacing
• There was a persistent use of public communications network for this purpose

The prosecution must also demonstrate that the evidence meets a particular threshold and that prosecution is in the public interest. This means that there are several ways to defend allegations during the process, and an experienced solicitor can make a significant difference to your chances of a positive outcome.

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Potential Offences Under the Malicious Communications Act 1988

Under this area of law, malicious communications are communications from one person to another by letter, electronically, or an article of any description which conveys a message that is indecent or grossly offensive.

This is only an offence if the sender's purpose, or one of their purposes, was to cause distress or anxiety to the recipient. The mental state of the sender is a key element of the offence and the prosecution must prove beyond reasonable doubt that a person intended (or that one of their intentions was) to cause distress or anxiety. 

A person found guilty could face a prison term not exceeding two years on indictment or up to 12-month custody at the Magistrates' Court.

Potential Offences Under the Communications Act 2003

Offences that fall under section 127 of the Communications Act 2003 include the following:

• A person sending any public electronic communications network a message or other content that is grossly offensive or of an indecent, obscene or menacing character
• A person causes any such message or content to be sent.

A person can also be found guilty of an offence under the Communications Act if they intend to cause annoyance, inconvenience or needless anxiety to another by:

• Sending a message that is known to be false via a public electronic communications network;
• Causing such a message to be sent; or
• Persistently making use of a public electronic communications network

Similar to offences under the Malicious Communications Act, one offence under the Communication Act 2003 requires the content of a message to be ‘grossly offensive’, ‘indecent’, ‘obscene’, or of a ‘menacing character’. However, the mental element of the offence is broader as it includes circumstances where a person should have awareness or recognition that sending the message may create insult or a risk of insult to the person to whom the message relates.

In addition, an offence will be committed under section 127(2) of the act where a person had specific intent to cause annoyance, inconvenience or anxiety with a message that is false.

Potential Offences Under the Online Safety Act 2023

New offences were introduced in the Online Safety Act 2023, some of which have replaced offences that previously existed under prior legislation. For example, messages containing a threat or false communications are no longer prosecuted under the Malicious Communications Act 1988 but may now fall under the Online Safety Act’s new, modernised offences.

A person may commit an offence under the new rules if:

• They send false communications (which they know are objectively untrue) with the intent to cause non-trivial psychological or physical harm.
• They send a message that conveys a threat with the intent that the recipient (or another person likely to see it) would fear that the threat would be carried out.

While these new offences cover similar types of behaviour to those previously prohibited under the Malicious Communications Act, they set clearer thresholds for the harm intended and caused by the accused.

Prosecutions must prove intent to cause harm, or fear of serious harm such as death or serious injury, to prosecute defendants under this legislation. The maximum penalty for sending false communications is 51 weeks’ imprisonment, a fine, or both, while the maximum sentence for threatening messages is up to five years in prison.

Q

What are the laws governing malicious communications?

A

The Malicious Communications Act 1988, the Communications Act 2003 and the Online Safety Act 2023 are three pieces of UK legislation that create the framework for offences related to the sending of communications. The 1988 legislation established malicious communications offences relating to the sending of letters and telephone messages, although its applications are not restricted to physical or analogue messages and are often applied to digital communications.

The 2003 act expanded on this to provide specific guidelines for electronic communication and the internet, while the 2023 act clarifies the thresholds for certain offences and modernises the framework. Here is a summary of the key points of each act, to help you understand how they are applied.

Malicious Communications Act 1988

This act makes it an offence to send or deliver letters or other articles for the purpose of causing distress or anxiety. Under this act, it became an offence to send a letter, electronic communication, or article of any description that conveys a message that is indecent or grossly offensive, a threat, or information which is false and known or believed to be false by the sender. To charge someone with this type of offence, authorities must demonstrate that the sender's intention was to cause distress or anxiety to the recipient.

The act also outlines penalties upon conviction for offences under the act, which may include a fine, imprisonment or both. While it was initially created before the widespread use of the internet for sending malicious communications, the Malicious Communications Act 1988 can still be (and often is) applied to various forms of communication including social media and email.

Communications Act 2003

This act is broader in scope and includes a range of provisions that strengthen the framework of the Malicious Communications Act 1988. Section 127 of the 2003 legislation is particularly noted for its relevance to the regulation of communications over the internet and other networks. 

This section makes it an offence to send or cause to be sent through a 'public electronic communications network' a message or other matter that is 'grossly offensive or of an indecent, obscene or menacing character'. It also includes sending a message that is known to be false for the purpose of causing annoyance, inconvenience, or needless anxiety to another. It also deals specifically with the sending of false messages with intent to cause annoyance, inconvenience, or anxiety. Penalties under this act are similar to those under the earlier law, and include fines and potential prison sentences.

Online Safety Act 2023

This legislation modernises two key offences that were previously prosecuted under the Malicious Communications Act 1988. Specifically, it sets clearer thresholds for the sending of false communications and threatening messages, and modernises the framework for prosecuting them in line with the rise of cyberbullying, harassment, threats and the dissemination of false information online and through social media.

These acts have been the subject of scrutiny and debate, but have been increasingly applied to modern forms of communication by law enforcement to address a range of issues, even where they were not designed with digital communications in mind.

If you are suspected of an offence under either of these acts, you should speak to a solicitor at your earliest opportunity. They can advise you on the charges you are facing, the nuances of the relevant legislation, and the defences that may be available.

Q

What are examples of malicious communications under the act?

A

Messages that may be illegal can take various forms, but offences generally involve sending or delivering some form of communication that is intended to cause distress, anxiety, or harm to the recipient. For example:

• Threats: communications that contain threats of serious harm or violence against the recipient or someone they know and provoke a reasonable fear that these threats may be carried out.
• Harassment: repeated, unwanted communications through public networks that amount to harassment, causing fear or distress to the recipient.
• Offensive or indecent material: sending material that is grossly offensive, indecent, or obscene, with intent to cause distress or anxiety.
• False information: sending false information with the intention of causing harm.
• Discrimination: communications that are discriminatory or incite hatred based on race, religion, gender, sexual orientation, or other protected characteristics.

For a communication to be considered malicious under the act, it must be shown that the sender intended to cause distress or anxiety, or at least was aware that the communication might cause such an effect. This can often form the basis of a defence, and if you have been charged with an offence, it is vital to speak to a solicitor at once.

Q

Is a malicious communications offence a summary offence?

A

An offence under the Malicious Communications Act 1988 may be treated as a summary offence, but this will depend on the nature of the offence and the course that investigators believe is appropriate. Summary offences are the least serious type of criminal offence in the UK, and are dealt with in the Magistrates' Court. If the offence relates to a single comment posted on social media or sent to an intended victim, this may constitute a summary offence.

In more serious circumstances - for example, if a defendant persistently makes comments of an indecent, obscene or menacing character in what represents a targeted campaign of harassment, this may result in a higher charge. These cases may be heard by the Crown Court, which can also apportion more severe penalties. The act is designed to protect individuals from receiving threatening or distressing communications, and both the intention of the culprit and the effect on the victim are taken into account when determining appropriate penalties.

Q

What are the penalties for a malicious communication offence?

A

If you are charged with a malicious communications offence, the case may be heard in either the Magistrates’ or Crown Court depending upon the offence that is charged. The malicious communications sentencing guidelines are strict and convictions for any of the offences listed above carry a maximum sentence of time in prison, an unlimited fine or both.

If a person is found guilty of an offence under the Malicious Communications Act 1988, they may be sentenced to prison for a maximum sentence of up to 12 months, or receive a fine, or both, following a conviction in the Magistrates’ Court. For a conviction in the Crown Court, the maximum penalty increases to a prison sentence of up to two years, a fine or both.

A person found guilty of an offence under the Communications Act 2003 will usually be sentenced in the Magistrates’ Court and may receive a prison sentence of up to six months or a fine. A criminal charge relating to malicious communications is always a serious allegation and there is a significant risk that defendants may receive a custodial sentence without the right legal support.

Q

Can I defend a charge?

A

Each case is unique and a defence should be fully explored with appropriate legal advice. The nature of the content and whether the prosecution can prove their case needs to be carefully considered. In addition, detailed consideration and advice will need to be obtained in relation to the intention and purpose of the message or messages.

A distinction must be made between the right to express oneself and something that is unnecessary or harmful in a criminal context. For example, in the relevant circumstances, a particular message may seem like an expression of free speech but may in fact cause distress or anxiety in its intended recipient. These circumstances can be complicated and must be explored fully by an expert solicitor to ensure that you are treated fairly during the investigation process.

As set out above, the offences and what the prosecution must prove are complex. It is, therefore, important that you have thorough and robust legal advice in defending such alleged offence(s).

Q

How can a solicitor help with a case under the Malicious Communications Act?

A

There are several ways that an experienced criminal defence solicitor can support someone accused of offences under the Malicious Communications Act 1988, Communications Act 2003 or Online Safety Act 2023. JMW's criminal law experts can provide tailored support from the very start of an investigation, through to legal representation if your case proceeds to trial.

If you are asked (or compelled) to attend an interview with the police or another authority, we can prepare you for your interview and help you to answer questions truthfully without incriminating yourself. JMW will always make sure you are treated fairly during an investigation and that you are not made to answer irrelevant questions or provide privileged information. Our guidance can help to make sure you comply with any legal obligations to investigators.

Thanks to their detailed knowledge, our solicitors can offer expert legal advice on the specifics of the Malicious Communications Act, to help you understand the charges, the legal implications, and the potential outcomes. We can help in gathering evidence and preparing a strong defence. This may involve collecting witness statements, digital records, and any other relevant documentation that can support the case, and piecing together an effective defence with a view towards mitigating penalties or proving your innocence.

After building your defence, we can represent you in court to present the defence effectively, question witnesses, and argue any legal points with the prosecution. Because we invest the time to understand our clients and their circumstances, we can always work towards the goal that you wish to achieve, and advise you on the likely potential outcomes of your case.

If you are found guilty (or decide to plead guilty), a JMW solicitor can assist in presenting mitigating factors to the court to potentially reduce the severity of your sentence. This can include showing remorse, highlighting the defendant's character and background, or demonstrating that the communication was out of character. In some cases, our solicitors can negotiate with the prosecution to possibly reduce charges or agree on a lesser sentence, depending on the circumstances of the case. We will also offer our guidance on how you should plead at the outset based on the evidence and the specific circumstances of your case. This includes providing an overview of the implications of such a plea, so you are empowered to make the best decision for you.

Legal proceedings can be complex and daunting. A solicitor can guide you through the process by explaining procedures and preparing you for what to expect at each stage. We help you to navigate the complexities of the law, ensure your side of the story is heard, and work towards the most favourable outcome possible under the circumstances. That means protecting your rights - including the right to a fair trial and the right to appeal a decision - at all stages.

Q

What should I do if I am accused of a malicious communications offence?

A

If the police or Crown Prosecution Service (CPS) accuses you of an offence, you should take the matter seriously and seek legal advice immediately. These offences usually relate to sending letters, emails, text messages, or social media posts that are grossly offensive communications or indecent messages, contain threats, or are intended to cause distress or anxiety. Even if you believe your message was a joke or was not meant to be taken seriously, you may still face prosecution.

When you are advised that you are being charged with a malicious communications offence, preserve all messages or online posts in their original form by taking screenshots. Make sure your screenshots show the context of messages, especially if the content could be misinterpreted. Do not respond to or delete any communications without advice. This includes any emails, messages or posts on social media platforms, even those that don't appear to be connected to the case, as this may be interpreted as an attempt to destroy evidence. Do not attempt to contact the person who has made the complaint or make any public statements or social media posts about the case.

You have the right to legal representation from the moment of arrest or voluntary interview. Thanks to our significant experience in electronic communications offences, JMW is a law firm with knowledgeable solicitors who can offer expert legal advice about your legal position. A JMW solicitor can attend the police station with you, advise you on whether to answer questions or provide a prepared statement, and assess whether there is sufficient evidence to show that the necessary elements of any alleged offences committed are present.

For example, for certain offences, the prosecution needs to prove that:

• A message was sent to another person;
• It contained a threat or information that is false and known or believed to be false; and
• The intent was to create fear or cause distress or anxiety.

If any of these elements are missing, the charge may not succeed and it may be possible to build a defence on this basis. It is important to consider the available defences at the earliest opportunity, as the consequences for these offences may be severe. Malicious Communications Act penalties can include a fine, a community order, or a custodial sentence of up to 2 years. You may also receive a restraining order preventing future contact with the complainant, and a conviction may appear on your criminal record, which could affect employment, travel, and your reputation.

A solicitor will give careful consideration to the facts of your case and help you to assess defences or mitigating circumstances. These could include arguing that:

• There was a lack of intent to cause distress.
• The message was not grossly offensive, threatening, or false.
• The communication was part of a legitimate complaint or political comment (depending on the context).
• Mental health conditions or neurodiversity affected your judgment or awareness of consequences.

Each case depends heavily on context, including the relationship between the sender and recipient, prior communications, and the perceived tone. As such, you will need to rely on an experienced solicitor to determine the best approach to your case.

If the case proceeds, you may be released on bail or under investigation. The CPS will review whether prosecution is in the public interest and whether there is a realistic prospect of conviction. If charged, you will need to enter a plea and prepare a defence with your solicitor. In many cases, early admissions and remorse may affect sentencing outcomes, but your solicitor will advise you on the actions you need to take. In some cases, it is possible to have charges dismissed before Crown Prosecutors get involved, and the team at JMW will always strive to resolve matters in this way where possible.