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Communications Offences

Legal Guidance

Introduction

This guidance is intended to assist prosecutors to deal with offences which are committed by communicating something by any means, whether electronically (e.g. social media, email, text) or otherwise.

Its primary focus is “communications offences”, namely offences contrary to section 1 Malicious Communications Act 1988 (‘MCA 1988’), section 127 Communications Act 2003 (‘CA 2003’), and offences created in Part 10 of the Online Safety Act 2023 (‘OSA 2023’).

The OSA 2023 repealed the provisions of MCA 1988 and CA 2003 dealing with false messages, and the provisions of MCA 1988 relating to threatening communications. The MCA 1988 and CA 2003 continue to encompass ‘grossly offensive’ and ‘indecent’ messages. The CA 2003 also encompasses messages which are obscene or menacing, and persistently making use of a public communications network.

The OSA 2023 introduced a series of new communications offences which came into force from 31 January 2024, including:

  • A false communications offence (Section 179 OSA 2023)
  • A threatening communications offence (Section 181 OSA 2023)
  • An offence of sending/showing flashing images electronically (sometimes known as epilepsy trolling) (Section 183 OSA 2023)
  • An offence of encouraging or assisting serious self-harm (Section 184 OSA 2023)
  • An offence of sending photographs or film of genitals (cyber-flashing) (Section 66A Sexual Offences Act 2003 [as inserted by Section 187 OSA 2023])
  • An offence of sharing or threatening to share intimate photographs or film (Section 66B(1)-(4) [as inserted by Section 188 OSA 2023]) - see also Rape and Sexual Offences prosecution guidance
  • An offence in relation to false Child Sexual Abuse and Exploitation (CSEA) reporting to the National Crime Agency (NCA) (Section 69 OSA 2023) – this offence is not yet in force

Prosecutors should bear in mind that communications may also involve differing types of misconduct including (but not limited to): offences against the person, public justice, sexual or public order offences, contempt of court and harassment, stalking and controlling or coercive behaviour.

In addition to the specific communications offences above, a number of other offences may also be committed by communicating something. It is imperative where there is a choice of charges that prosecutors apply section 6 of the Code for Crown Prosecutors to charge selection decisions.

Referral of Cases Criteria

The following cases under section 1 MCA 1988, section 127 CA 2003 and the OSA 2023 must be referred to the Chief Crown Prosecutor (CCP) or Head of Division (HoD) for approval:

  1. Any communications offence directed towards a Member of Parliament or other person of public prominence where a prosecutor proposes:

    • at the pre-charge stage to charge, or to take no further action ('NFA'); or
    • at the post-charge stage to add any new communications offence, or to stop the prosecution.

    A person of public prominence is someone that is likely to attract national media attention, for example members of the Royal Family, high profile celebrities or professional athletes.

  2. Grossly offensive communications, not directed towards a Member of Parliament or other person of public prominence where a prosecutor proposes:

    • at the pre-charge stage to charge; or
    • at post-charge stage to add

    an offence of sending a grossly offensive communication, contrary to section 1(1)(a)(i) or 1(1)(b) of the Malicious Communications Act 1988 or section 127(1)(a) or 127(1)(b) of the Communications Act 2003.

    CCP or HoD approval is not required for a decision to take no further action or to stop a prosecution involving a grossly offensive communication or to amend a communications offence (e.g. from grossly offensive to menacing). CCP or HoD authority is also not required for a decision to charge/NFA/stop a prosecution for a communications offence involving an indecent, obscene, menacing, or threatening message.

  3. Any communications offence falling into (1) or (2) above, where the charging decision was made by CPSD or by the police.

Referral to the CCP or HoD should take place in advance of the first Court hearing for all bail cases. If that is not practicable for overnight remand cases, referral to an SDCP or DCP should take place before the first Court hearing and approval should be sought from a CCP within 7 days of charge.

CCP approval of charging decisions should be endorsed in writing. For approvals under (1) above, the Full Code Test should be addressed; for approvals under (2), the rationale as to why the threshold for “grossly offensive” has been met should be provided.

Special Jurisdiction of the Chief Magistrate

Prosecutors should consider whether any communications offences fall within the Special Jurisdiction of the Chief Magistrate. The categories are listed in the Criminal Practice Direction XIII 2015 (as amended) under the heading of "General and Listing Practice Directions" – see Paragraph 5 of Annex 1 to the Criminal Practice Directions XIII: Listing.

Cases involving persons of public prominence may fall into the category of “Cases of unusual sensitivity”. Offences committed by police staff may fall within the category of "Police officers charged with serious offences".

Relevant cases must be heard by the Senior District Judge (Chief Magistrate) or by another authorised District Judge.

Evidential Considerations

Part 10 of the Online Safety Act 2023 [‘OSA 2023’], which deals with communications offences, came into force on 31 January 2024. From that date, the OSA 2023 repealed section 33 Criminal Justice and Courts Act 2015 (the offence of so-called ‘revenge pornography’), section 1(1)(a)(iii) MCA 1988 and section 127(2) CA 2003 (false communications); and, repealed section 1(1)(a)(ii) MCA 1988 (threatening communications).

For communications offences committed prior to 31 January 2024, the repealed offences remain available for prosecution (subject to the summary time limit in section 127(5) CA 2003).

Offences in the MCA 1988 and CA 2003 which were not repealed and remain available are:

  • the either-way offence under section 1(1)(a)(i) MCA 1988 (sending an indecent or grossly offensive communication); and
  • the summary offences under section 127(1) CA 2003 (sending via a public communications network a message which is grossly offensive, indecent, obscene, or menacing); and, under section 127(2)(c) CA 2003, of persistently making inappropriate use of a public communications network.

For communications offences committed on or after 31 January 2024, the OSA 2023 created several new offences – including offences of sending false or threatening communications – which are discussed below.

When charging offences under section 1 MCA 1988 or section 127 CA 2003, it is good practice to particularise in the charge which specific limb of the offence applies: whether the communication is alleged to be grossly offensive, or indecent, or menacing, etc.

The prosecutor’s charging decision should articulate the rationale for the selection of charges, and address any interference with the suspect’s ECHR rights, for example right to freedom of expression (see below under Article 10 ECHR).

S.127 CA 2003 – Actus Reus

An offence under section 127 CA 2003 may be committed in a number of different ways:/p>

  • s.127(1) – an offender sends, or causes to be sent, via a public communications network a communication that is either grossly offensive, or of an indecent, obscene, or menacing character;
  • s.127(2) – for the purpose of causing annoyance, inconvenience or anxiety to another, an offender:
     
    1. sends, or causes to be sent, a communication that the offender knows to be false; or
    2. persistently makes use of a public electronic communications network

How a communication is sent

Section 127 CA 2003 – addresses only communications which are sent via a 'public electronic communications network', which was defined in the case of Director of Public Prosecution v Collins [2006] 1 WLR 2223 as "a service provided for and funded by the public, for the benefit of the public" (approved in Chambers v DPP [2012] EWHC 2157). It encompasses the internet and mobile phone networks widely available to the public, and social media platforms which operate via the internet, e.g. WhatsApp (see DPP v Bussetti [2021] EWHC 2140 (Admin)).

To whom a communication is sent

Section 127 CA 2003 – it is not necessary to show the message was addressed to, or received by, another person. The actus reus of the offence is complete when the message is sent – see DPP v Collins [2006] UKHL 40, and DPP v Kingsley Smith [2017] EWHC 359 (Admin). This will cover the posting of a message, and indeed re-posting or other sharing of a communication.

In Chambers v DPP [2012] EWHC 2157, the defendant posted a message on Twitter suggesting he would blow up Doncaster Airport. That was held to constitute a message sent under section 127(1)(a), even if that message may not have been accessed immediately but by a subsequent search. The Court noted that posting a message generally to Twitter, not for the attention of a specific individual or group, which was then stored electronically, was still an offence.

In R (on the application of Alison Chabloz) v Crown Prosecution Service [2020] 1 Cr App R 17, the defendant (who had an internet blog) posted hyperlinks to YouTube where she had uploaded videos of herself singing grossly offensive anti-Semitic songs. Her convictions for offences under section 127(1)(a) and (1)(b) were upheld by the Court of Appeal, which noted that the purpose of section 127(1) was to prohibit the use of a public electronic communications network to contravene basic standards of public decency. The offence did not depend on the message being received, but was complete when it was sent. The court followed DPP v Collins [2006] UKHL 40. The potential recipients of a message posted on the internet were members of the public. It was immaterial that an accused might have intended only that a message should be read by a limited class of people.

Grossly Offensive, Indecent or Obscene communications

Section 127 CA 2003 and section 1 MCA 1988 each encompass communications which are 'grossly offensive' or 'indecent’, which are ordinary English words: see Connolly v DPP [2007] 2 ALL ER 1012.

Additionally, section 127 CA 2003 also encompass 'obscene communications‘. 'Obscene' also has an ordinary meaning - see R v Anderson [1972] 1 QB 304, in which the Court of Appeal (with reference to other legislation) noted 'obscene' means 'shocking, lewd and indecent’.

There is no statutory definition of what constitutes a 'grossly offensive' communication. Each case must be assessed on its merits, considering the content of the communication and the context in which it was sent. Prosecutors must also consider whether the communication(s) cross the threshold at which interference with the Art. 10 ECHR right to freedom of expression is necessary and proportionate – see below re. Art 10 ECHR.

In the leading case of Director of Public Prosecution v Collins [2006] 1 WLR 2223, the defendant made racially offensive telephone calls to the offices of his Member of Parliament and left racially offensive telephone messages. The High Court (at para 9 of the Judgement) held that it was for the justices at first instance to "determine as a question of fact whether a message is grossly offensive, that in making this determination the Justices must apply the standards of an open and just multi-racial society, and that the words must be judged taking account of their context and all relevant circumstances… The test is whether a message is couched in terms liable to cause gross offence to those to whom it relates" – i.e. whether reasonable members of the public would find the message grossly offensive (not just the recipients/intended recipients).

In the case of DPP v Bussetti [2021] EWHC 2140 (Admin), the Divisional Court held that, in order to cross the threshold for this offence, the message must have been "not simply offensive but grossly offensive. The fact that the message was in bad taste, even shockingly bad taste, was not enough".

Menacing communications

Menacing means creating a sense of apprehension or fear: see Chambers v DPP [2012] EWHC 2157.

False messages (sent prior to the commencement of Part 10 OSA 2023 on 31 January 2024)

Subject to the 3-year summary time limit in section 127(5) CA 2003, for communications offences committed prior to 31 January 2024 it is an offence to send, or cause to be sent, via a public communications network, a message which the defendant knows to be false.

[Note that section 127(2)(a) and (b) CA 2023 were repealed by the OSA 2023. For communications sent on or after 31 January 2024, the offence under section 179 OSA 2023 should be considered (see below).

Persistently using a public communications network for the purpose of causing annoyance, inconvenience, or needless anxiety to another (s.127(2)(c) CA 2003)

Under section 127(2)(c) CA 2003, a person may be guilty of an offence by persistently making use of a public communications network for the purpose of causing annoyance, inconvenience or needless anxiety to another person.

In the case of Scottow v CPS [2020] EWHC 3421 (Admin), the defendant posted a total of 16 messages on Twitter and Mumsnet during 2018-2019 about the complainant, a transgender woman who had a public profile as an activist and advocate on transgender rights. The issue was whether the defendant had 'persistently' sent messages with the required purpose.

The Divisional Court noted (at para 32 of the Judgement) that "the mischief at which the offence now contained in s.127(2)(c) was aimed is not the communication of information or ideas that offend the recipient, or even the communication of messages that have offence as a purpose. Its object was to prohibit the abuse of the facilities afforded by a publicly funded network by repeatedly exploiting those facilities to communicate with another for no other purpose than to annoy them, or cause them inconvenience, or needless anxiety. The focus is not on the content of any communication, but rather its purpose and the way in which that purpose is put into effect. I have no doubt that repeated instances of prank calls, silent calls, heavy breathing, and other common forms of nuisance phone call, containing no meaningful content, would fall within the scope of s. 127(2)(c). I do not mean to suggest these examples are exhaustive, but they do indicate the kinds of behaviour that I consider the legislature intended to prohibit by enacting this offence. I am not persuaded that content will always be irrelevant... what Parliament intended was to proscribe a course of persistent conduct the sole purpose of which is to cause annoyance, anxiety or inconvenience by virtue of its persistence, rather than its informational content."

S.127 CA 2003 – Mens Rea

S.127(1) – grossly offensive communications

The correct approach was confirmed in DPP v Kingsley Smith [2017] EWHC 359 (Admin). In that case, the Divisional Court noted (at paragraph 28(7)(i) of the Court’s judgement) that the mens rea for a grossly offensive communication contrary to section 127(1) is that:

"the [offender] intended his message be grossly offensive to those to whom it related; or that he was aware at the time of sending that it might be taken to be so by a reasonable member of the public who read or ”aw it".

That approach was cited with approval by the Divisional Court in DPP v Bussetti [2021] EWHC 2140 (Admin). While attending a bonfire night party in November 2018, the defendant used his mobile phone to record a video which showed the burning of a cardboard effigy of Grenfell tower, in which 72 people tragically lost their lives due to a fire in 2017. He sent the video to two WhatsApp groups with limited membership, and the video was later shared on social media. The Divisional Court held "For the offence s.127(1)(a) to have been committed the sender must have intended or been aware that the message was not simply offensive but grossly offensive.” The court cited the threshold in Chambers with approval: “The fact that the message was in bad taste, even shockingly bad taste, is not enough."

S.127(1) CA 2‘03 – 'menacing' communications

The sender must have intended the message to be of a menacing character or, alternatively, at the time of sending the message the sender must have been aware of a risk that it may create fear or apprehension in any reasonable member of the public who reads or sees it – Chambers v DPP [2012] EWHC 2157, approved in DPP v Kingsley Smith [2017] EWHC 359 (Admin).

S.127(1) CA 2‘03 – 'obscene' or 'indecent' communications

Whilst there does not appear to be any specific case law on the point, prosecutors are advised to approach the issue of mens rea for obscene or indecent communications on the same basis as set out in DPP v Kingsley Smith [2017] EWHC 359 (Admin) – namely, the sender must have intended the message to be of an obscene or indecent character or, alternatively, at the time of sending the message the sender must have been aware of a risk that it may be taken to be so by any reasonable member of the public who read or saw it.

S.127(2) CA 2003 – sending false messages (sent prior to commencement of Part 10 OSA 2023 on 31 January 2024); or, persistently making use of a public communications network

For all offences under s.127(2) CA 2003, it must be established that the defendant's purpose was to cause annoyance, anxiety, or needless anxiety to another.

In relation to false messages (those sent prior to the commencement of Part 10 OSA 2023 on 31 January 2024), s.127(2)(a) and (b) CA 2003 require the prosecution to prove that the defendant sent a message which he knew was false.

[Note that s.127(2)(a) and (b) CA 2023 were repealed by the OSA 2023. For offences of sending a false communication on or after the commencement of Part 10 OSA 2023 on 31 January 2024, the offence under section 179 OSA 2023 should be considered (see below).

S.1 MCA 1988 – Actus Reus

How a communication is sent

Section 1 MCA 1988 has wider application than section 127 CA 2003. It encompasses messages sent by means of letters, electronic communications or an article of any description. Therefore, where the communication is not sent via a public electronic communications network, offences under section 1 MCA 1988 and the OSA 2023 should be considered.

To whom a communication is sent

The prosecution must establish that the message was sent to another person. Depending on the facts of the case, a social media communication which is merely a blog or a comment posted on a website may not suffice as sending to another. Prosecutors should consider the evidence that the communication was addressed (either by name or in terms) to a specific recipient, and how likely the specific recipient was to receive it (did they also have a Twitter or Facebook account).

Grossly Offensive or Indecent communications (s.1(a)(i) MCA 1988)

Please refer to section (c) above, under Actus Reus for s.12(c)A 2003.

Threatening communications (s.1(a)(ii) MCA 1988) sent prior to the commencement of Part 10 OSA 2023 on 31 January 2024)

For communications sent prior to the commencement of Part 10 OSA 2023 on 31 January 2024, it is an offence under section 1(a)ii) MCA 1988 to send a communication which conveys a threat.

Note that s.1(1)(a)(ii) MCA 1988 was repealed by the OSA 2023. For communications offences committed on or after 31 January 2024, the offence under section 181 OSA 2023 should be considered (see below).

False messages (sent prior to the commencement of Part 10 OSA 2023 on 31 January 2024)

For communications sent prior to the commencement of Part 10 OSA 2023 on 31 January 2024, it is an offence under section 1(i)(a)(iii) MCA 1988, to send information which is false and which is known or believed to be false by the sender.

[Note that s.1(1)(a)(iii) MCA 1988 was repealed by the OSA 2023. For communications offences committed on or after 31 January 2024, the offence under section 179 OSA 2023 should be considered (see below)].

S.1 MCA 1988 – Mens Rea

For all offences under section 1 MCA 1988, the mens rea is set out in the statute: the prosecution must establish that the sender's purpose, or one such purpose, is that the message should cause distress or anxiety to the recipient or to any other person to whom it is intended that the message or its contents or nature should be communicated. This is a higher standard than for section 127 CA 2003.

As regards messages containing false information (sent prior to the commencement of Part 10 OSA 2023 on 31 January 2024), section 1(1)(a)(iii) MCA 1988 requires proof that the sender knew or believed the information was false.

Art. 10 ECHR – Right to freedom of expression

Article 10 of the European Convention on Human Rights ('ECHR') expressly protects speech that offends, shocks, and disturbs. "Freedom only to speak inoffensively is not worth having”: Redmond-Bate v DPP [2000] HRLR 249 [20] per Sedley LJ. Consequently, where Article 10 is engaged, the Court's assessment of whether the conduct crosses the boundary from the unattractive, even unreasonable, to oppressive and unacceptable must pay due regard to the importance of freedom of expression and the need for any restrictions upon the right to be necessary, proportionate and established convincingly.

Prosecutors should only proceed with communications offences where the interference with freedom of expression, is necessary and is proportionate. Relevant ECHR considerations must form part of both stages of the Code Test review.

Each case must be decided on its own facts and merits and with particular regard to the context of the message concerned. Factors that may be relevant to consider are: who is the intended recipient; whether the message refers to their characteristics; whether the nature of the message can be understood with reference to a news or historical event; whether terms are used which require interpretation, or explanation by the recipient; whether there was other concurrent messaging in similar terms so that the suspect knowingly contributed to a barrage of such messages.

Prosecutors should consider the following, non-exhaustive factors, and should only proceed if they are satisfied there is sufficient evidence that the communication in question is more than:

  • Offensive, shocking, or disturbing; or
  • Satirical, iconoclastic, or rude comment; or
  • The expression of unpopular or unfashionable opinion about serious or trivial matters, or banter or humour, even if distasteful to some or painful to those subjected to it; or
  • An uninhibited and ill thought-out contribution to a casual conversation where participants expect a certain amount of repartee or "give and take";
  • This is with reference to "contemporary standards… the standards of an open and just multi-racial society", assessing whether the particular message in its particular context is beyond the pale of what is tolerable in society" adopting the observations, as guidance illuminating these terms, in DPP v Collins [2006] UKHL 40, Chambers, Smith v ADVFN [2008] 1797 (QB).

Article 10 of the European Convention on Human Rights provides the following in respect of freedom of expression:

  1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television, or cinema enterprises.
  2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

However, Article 17 provides:

"Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention."

Every decision made in accordance with the Code for Crown Prosecutors in communications offences cases must be compliant with Article 10 (see section 6(1) Human Rights Act 1998) unless the prosecutor is wholly satisfied that Article 17 provides that Article 10 will not be engaged at all.  Freedom of expression, in particular hate speech, aimed at destroying or limiting, for instance, a person's right to a private and family life, or their peaceful enjoyment of property, or their enjoyment of rights in a way discriminatory of them compared to others, will not engage Article 10.

S.127(5) CA 2003 – Time Limit

Notwithstanding that section 127 CA 2003 is a summary offence, section 127(5) CA 2003 provides:

"An information or complaint relating to an offence under this section may be tried by a magistrates' court in England and Wales or Northern Ireland if it is laid or made —

  1. before the end of the period of 3 years beginning with the day on which the offence was committed, and
  2. before the end of the period of 6 months beginning with the day on which evidence comes to the knowledge of the prosecutor which the prosecutor considers sufficient to justify proceedings."

Section 127(7) CA 2003 provides that a certificate of a prosecutor as to the date on which evidence described in subsection (5)(b) or (6)(b) came to his or her knowledge is conclusive evidence of that fact. The effect of this is as follows:

  • Careful consideration should be given to when evidence came to the knowledge of the prosecutor (for this definition, see below) sufficient to justify proceedings;
  • This means evidence sufficient to satisfy the prosecutor that the Full Code Test is met;
  • The certificate issued means no evidence will be heard on the issue and thus the prosecutor does not have to give evidence about their knowledge;
  • This decision remains subject to public law principles i.e. it must remain an assessment of evidence which a reasonable prosecutor would be entitled to reach, and did reach.

In DPP v Cook and Snowden [2022] EWHC 2963 (Admin) the court made clear that a certificate may only be impugned on three grounds:

  1. if it is not in the proper form: it must be signed by or on behalf of the appropriate prosecutor and must state what it is required to state. A "certificate which fails to do so is a nullity"
  2. if it contains an "error on its face", something that is patently wrong
  3. if it can be shown that the certificate is fraudulent

Online Safety Act 2023 Offences

Part 10 of the OSA 2023 created new offences regarding communications sent on or after the commencement date of 31 January 2024, including:

  • A false communications offence (Section 179 OSA 2023)
  • A threatening communications offence (Section 181 OSA 2023)
  • An offence of sending/showing flashing images electronically (epilepsy trolling offence) (Section 183 OSA 2023)
  • An offence of encouraging or assisting serious self-harm (Section 184 OSA 2023)
  • An offence of sending photographs or film of genitals (cyber-flashing) (Section 66A Sexual Offences Act 2003 [as inserted by Section 187 OSA 2023])
  • Offences of sharing or threatening to share intimate photographs or film (Section 66B(1)-(4) and Section 66C Sexual Offences Act 2003 [as inserted by Section 188 OSA 2023]). See also Child Sexual Abuse: Guidelines on Prosecuting Cases of Child Sexual Abuse.

The offences of sending false or threatening communications (under sections 179 and 181 OSA 2003 respectively) are much wider in scope than the repealed offences under section 1(1)(a) (ii)-(iii) MCA 1988 and section 127(2)(a)-(b) CA 2003.

‘Sending a message’ is defined in section 182 OSA 2023 (for the purpose of the offences in section 179 and 181 OSA 2023) as including not only communications or things which are sent directly between individuals, but also more generally transmitting communications by electronic means. Section 182(6) OSA 2023 provides that it does not matter whether the content of a message is created by the person who sends it (so for example, in the online context, an offence may be committed by a person who forwards another person’s direct message or shares another person’s post). Section 182(7) OSA 2023 provides that a message which includes a hyperlink to other content is to be read as referring to that content. Some online actions may not constitute sending a message, but rather simply responding to it, but may do so where the effect of that response is to draw it to the attention of others and disseminate it further.

The offences under section 179(1), 181(1) and 183(1) OSA 2023 have extra-territorial jurisdiction and application (see section 185 OSA 2023).

Sending False Communications – Section 179 OSA 2023

Section 179(1) OSA 2023 creates a summary offence of sending false communications. The offence is committed if:

  1. a person sends a message (as defined in section 182 OSA 2023);
  2. the message conveys information that the person knows to be false;
  3. at the time of sending it, the person intended the message, or the information in it, to cause non-trivial psychological or physical harm to a likely audience; and
  4. the person has no reasonable excuse for sending the message.

A ‘likely audience’ is defined in section 179(2) OSA 2023. It includes any individual who, at the time the message is sent, is either reasonably foreseeable as someone who would encounter the message (i.e., by reading, viewing, hearing, or otherwise experiencing the message – section 182(5) OSA 2023); or, in the online context, would encounter a subsequent message which forwards or shares the content of the message.

Non-trivial psychological or physical harm is not defined in Part 10 OSA 2023. Prosecutors should be clear when making a charging decision about what the evidence is concerning the suspect’s intention and how what was intended was not “trivial”, and why. Note that there is no requirement that such harm should in fact be caused, only that it be intended.

An extended summary time limit applies to the offence under section 179(1) OSA 2023 (see section 179(7)-(8) OSA 2023). Akin to s.127(5) CA 2003, proceedings for an offence under section 179(1) OSA 2023 may be brought within 6 months of the date on which evidence sufficient to justify the proceedings comes to the prosecutor’s knowledge, but in any event not more than 3 years from the date of commission of the offence.

This offence has extra-territorial application and jurisdiction (see section 185 OSA 2023).

Sending Threatening Communications – Section 181 OSA 2023

Section 181(1) OSA 2023 creates an either-way offence of sending threatening communications which carries a maximum penalty of up to 5 years’ imprisonment and/or an unlimited fine. The offence is committed if:

  1. the person sends a message (see section 182 OSA 2023);
  2. the message conveys a threat of death or serious harm; and
  3. at the time of sending it, the person:
    1. intended an individual encountering the message to fear that the threat would be carried out (whether or not by the person sending the message), or
    2. was reckless as to whether an individual encountering the message [i.e., by reading, viewing, hearing, or otherwise experiencing the message – section 182(5) OSA 2023] would fear that the threat would be carried out (whether or not by the person sending the message).

‘Serious harm’ is defined in section 181(2) OSA 2023 as serious injury amounting to grievous bodily harm, rape, assault by penetration (as defined in section 2 Sexual Offences Act 2003), or serious financial loss.

‘Serious financial loss’ is not defined in the OSA 2023. What constitutes ‘serious’ financial loss will be a matter of fact and degree in the individual circumstances of each case. Where the prosecution case is put on the basis of serious financial loss, section 181(3) OSA 2023 provides that it is a defence for the person to show that: (a) the threat was used to reinforce a reasonable demand; and (b) the person reasonably believed that the use of the threat was a proper means of reinforcing the demand. If evidence is adduced which is sufficient to raise the defence, the Court must assume the defence is satisfied unless the prosecution can disprove the defence to the criminal standard.

Where the evidence establishes that a credible threat of death was made to an individual, the offence of making a threat to kill may also be available and prosecutors should apply section 6 of the Code to decide on the appropriate charge. Threats to kill should only be charged where it is necessary to do so to reflect the seriousness of the offending and provide the court with adequate powers of sentence.

The threatening communications offence also captures threats where the recipient fears that someone other than the sender of the message may carry out the threat so extends to threats carried out by third parties.

There is a clear overlap with the offence of sending a menacing communication under section 127(1)(a) Communications Act 2003. Again section 6 of the Code should be applied and in particular (and as set out below) the focus should be on whether the summary section 127 offence reflects the seriousness of the offence and provides adequate powers of sentence. The section 127 offence may also be available where the legal elements of the section 181 offence are not established.

This offence has extra-territorial application and jurisdiction (section 185 OSA 2023).

Sending/Showing Flashing Images Electronically – Section 183 OSA 2023

Section 183 OSA 2023 creates two separate either-way offences of sending or showing flashing images electronically, each of which carries a maximum penalty of up to 5 years’ imprisonment and/or an unlimited fine.

Sending Flashing Images

Section 183(1) OSA 2023 provides that an offence is committed if: a person (A) sends a communication by electronic means which consists of or includes flashing images (as defined in section 183(13) OSA 2023); that either condition 1 or condition 2 is met; and, A has no reasonable excuse for sending the communication.

Condition 1 (section 183(2) OSA 2023) is that:

  1. at the time the communication is sent, it is reasonably foreseeable that an individual with epilepsy would be among the individuals who would view it, and
  2. a person (A) sends the communication with the intention that such an individual will suffer harm as a result of viewing the flashing images.

Condition 2 (section 183(3) OSA 2023) is that when sending the communication—

  1. A believes that an individual (B), whom A knows or suspects to be an individual with epilepsy will, or might, view it, and
  2. A intends that B will suffer harm as a result of viewing the flashing images.

‘Viewing’ a communication includes viewing a subsequent communication which forwards or shares the content of the communication (section 183(4) OSA 2023). A message which includes a hyperlink to other content is to be read as referring to that content (section 183(7) OSA 2023).

The offence in section 183 (1) OSA 2023 may therefore be committed by a person who forwards or shares the electronic communication, as well as by the person who originally sends it.

“Harm” is defined as meaning a seizure, or alarm or distress; and, an “individual with epilepsy” includes, but is not limited to, an individual with photosensitive epilepsy (section 183(13) OSA 2023). Note, however, there is no requirement that such harm should in fact be caused. In most cases it will be clear whether a particular image meets the definition in section 183(13) and it should not therefore be necessary to seek to prove that fact e.g. by expert evidence. If there is some doubt about whether or not the image that was sent or shown carried the necessary risk, but there is sufficient evidence that the other requirements of the offence are met, then expert evidence may be considered in respect of the nature of the image.

Showing Flashing Images

Section 183(8) OSA 2023 provides that a person (A) commits an offence if:

  1. A shows an individual (B) flashing images by means of an electronic communications device,
  2. when showing the images A knows or suspects that B is an individual with epilepsy,
  3. when showing the images, A intends that B will suffer harm as a result of viewing them, and
  4. A has no reasonable excuse for showing the images.

The OSA 2023 does not define the meaning of ‘showing’. However, section 183(12) OSA 2023 provides that ‘showing’ flashing images includes causing flashing images to be shown. Consequently, the offence may be committed between individuals who are physically remote, as well as between individuals who are within sight of each other, and may cover different ways of displaying images to another person.

Under section 183(11) OSA 2023, it does not matter whether flashing images may be viewed at once (for example, a GIF that plays automatically) or only after some action (such as pressing play) is performed.

For the purposes of both offences under sections 183(1) and 183(8) OSA 2023, “flashing images” are defined by section 183(13) OSA 2023 as meaning images which carry a risk that an individual with photosensitive epilepsy who viewed them would suffer a seizure as a result.

“Harm” is defined as meaning a seizure, or alarm or distress; and, an “individual with epilepsy” includes, but is not limited to, an individual with photosensitive epilepsy (section 183(13) OSA 2023). Note, however, that - in the same way as the offence under section 184(1) OSA 2023 - there is no requirement that such harm should in fact be caused.

The offences under section 183(1) OSA 2023 have extra-territorial application and jurisdiction (see section 185 OSA 2023).

Encouraging or Assisting Serious Self-Harm – Section 184 OSA 2023

Section 184(1) OSA 2023 creates an either-way offence of encouraging or assisting serious self-harm, which carries a maximum penalty of up to 5 years’ imprisonment and/or an unlimited fine.

The offence is committed if the offender does a relevant act capable of encouraging or assisting the serious self-harm of another person, and the offender’s act was intended to encourage or assist the serious self-harm of another person. The victim need not be a specific person (or class of persons) known to, or identified by, the offender (section 184(4) OSA 2023). ‘Encouraging’ includes threatening or otherwise putting pressure on another person (section 184(11) OSA 2023).

Section 184(12) provides that an act capable of encouraging or assisting the serious self-harm of another person includes a course of conduct. An “act” of self-harm in subsection (3) includes an omission. So, for example, a person who encourages another person not to eat, not to drink or not to take required prescription medication would be captured by the offence (section 184(13) OSA 2023).

Section 184(2) OSA 2023 sets out numerous means by which a ‘relevant act’ may occur, including: communicating in person; sending, transmitting, or publishing a communication by electronic means; showing a person a communication; publishing material other than by electronic means; and sending, giving, showing, or making a communication available to a person.

Where an offender arranges for a third party to do an act that is capable of encouraging or assisting the serious self-harm of a victim and the third party does that act, the offender is to be treated as also having done it (section 184(7) OSA 2023). Consequently, two or more individuals may commit a relevant act.

‘Serious self-harm' is defined in section 184(3) OSA 2023 as amounting to grievous bodily harm within the meaning of the Offences Against the Person Act 1861 and includes successive acts of self-harm which cumulatively reach that threshold. Note, however, that an offence may be committed under section 184(1) OSA 2023 whether or not serious self-harm in fact occurs (section 184(5) OSA 2023). What is important is that the suspect’s intention meets the threshold set by Parliament for criminalisation: that of intended serious self-harm.

It is irrelevant whether the content of the communication or publication is created by an offender (so for example, in the online context, the offence under this section may be committed by forwarding another person’s direct message or sharing another person’s post) - section 184(7) OSA 2023. A communication which consists of or includes a hyperlink to other content is to be read as including reference to that content (section 184(8) OSA 2023). Prosecutors should consider the nature of the content viewed and whether it was sent or communicated with the intent that the recipient is encouraged or assisted to do an act that amounts to serious self-harm.

Section 184(9) provides that where a person sends, gives or makes available (i.e., places somewhere for a person to find) an item on which data is stored electronically the reference to the item in section 184(2)(f) includes content accessed by means of the item to which the recipient is specifically directed by the person sending, giving or making that item available. So, for example, if someone sends a person a memory stick containing material that is intended to encourage or assist them to seriously self-harm, they may commit an offence.

Sending Photographs or Film of Genitals (Cyber-Flashing) - Section 66A Sexual Offences Act 2003 [as inserted by Section 187 OSA 2023]

Also known as ‘cyberflashing’, Section 187 OSA 2023 inserted a new section 66A into the Sexual Offences Act 2003 [‘SOA 2003’]. It creates an either-way offence which carries a maximum penalty of up to 2 years’ imprisonment and/or an unlimited fine.

The offence is committed when an offender intentionally sends or gives a photograph or film of any person’s genitals to another person, and either:

  1. the offender intends that other person will see the genitals and be caused alarm, distress, or humiliation; or
  2. the offender sends or gives such a photograph or film for the purpose of obtaining sexual gratification and is reckless as to whether the other person is caused alarm, distress, or humiliation.

Section 66A(2) SOA 2003 defines sending or giving a photo or film as: sending it to another person by any means, electronically or otherwise; showing it to another person; and, placing it for a particular person to find. Section 66A(5) SOA 2003 provides that references to a photograph or film also includes a copy; and, an image whether made or altered by computer graphics or in any other way, which appears to be a photograph or film.

A person convicted of an offence under section 66A SOA 2003 may be subject to notification requirements (sexual offenders register) - see section 80 SOA 2003, and paragraph 33A in Schedule 3 SOA 2003 [as inserted by paragraph 16(4) in Schedule 14 OSA 2023].

Where the legal elements of section 66A SOA 2003 offence are not established, prosecutors may also consider the offences relating to indecent messages under section 127(1)(a) CA 2003, and section 1(1)(a)(i) MCA 1988.

Sharing or Threatening to Share Intimate Photographs or Film – Section 66B(1)-(4) Sexual Offences Act 2003 (as inserted by Section 188 OSA 2023)

The either-way offence of so-called ‘revenge porn’ (disclosing or threatening to disclose private sexual photographs and films with intent to cause distress) contrary to sections 33 to 35 of the Criminal Justice and Courts Act 2015 [‘CJCA 2015’], has been repealed (Section 191 OSA 2023). The section 33 CJCA 2015 offence remains available for offences committed prior to the commencement of Part 10 OSA 2023 on 31 January 2024 – see below for commentary.

For offences committed on or after the commencement of Part 10 OSA 2023 on 31 January 2024, Section 188 OSA 2023 inserts a new section 66B into the SOA 2003, which creates 4 distinct offences. Section 66B(1) SOA 2003 creates a summary offence, while sections 66B(2)-(4) SOA 2003 are either-way offences which carry a maximum penalty of up to 2 years’ imprisonment and/or an unlimited fine.

Prosecutors will note the new offences are intended to address activities including so-called deepfake images, and downblousing.

Revenge Pornography: Disclosing, or Threatening to Disclose, Private Sexual Photographs or Film with Intent to Cause Distress – Section 33 Criminal Justice and Courts Act 2015

Having been repealed by the OSA 2023, the offence under section 33 CJCA 2015 remains available for offences committed on or after 13 April 2015 and prior to the date of commencement of Part 10 OSA 2023 on 31 January 2024. Initially limited to offences of ‘disclosing’, the offence was extended from 29 June 2021 to include ‘threatening’ to disclose private photos/film.

The offence is committed where:

  1. a person discloses, or threatens to disclose, a private sexual photograph or film in which another individual (“the relevant individual”) appears,
  2.  
  3. by so doing, the person intends to cause distress to that individual, and
  4. the disclosure is, or would be, made without the consent of that individual.

Prosecutors should ensure the appropriate version of section 33 CJCA 2015 is applied, depending on the date of commission of an offence.

No offence is committed if the photo/film is disclosed to the person who appears in it (section 33(2) CJCA 2015). Note also that a person charged with an offence under this section is not to be taken to have intended to cause distress by disclosing, or threatening to disclose, a photograph or film merely because that was a natural and probable consequence of the disclosure or threat (section 33(8) CJCA 2015).

The offence applies to any form of disclosure of private sexual photographs or films, so (for example) by uploading images on the internet, sharing by text or e-mail, or by physically showing someone.

Note the offence applies only where a photograph or film is of a private sexual nature originally (including where two or more such photographs or films have been combined). The offence is not established if a film or photograph has become private and sexual only due to alteration or combination, or if the intended victim is depicted in a sexual way only due to an alteration or combination.

Statutory defences apply where:

  • the defendant reasonably believed that the disclosure was necessary for the prevention, detection, or investigation of crime (section 33(3) CJCA 2015);
  • a person discloses material in the course of or with a view to the publication of journalistic material so long as the person concerned reasonably believed that the publication in question was or would be in the public interest (section 33(4) CJCA 2015);
  • the defendant reasonably believed that the material was previously disclosed for reward and had no reason to believe that the previous disclosure for reward was made without the consent of the individual (section 33(5) CJCA 2015).

Care should be taken when considering any cases of 'sexting' which involve images taken of persons under 18. Sexting commonly refers to the sharing of illicit images, videos, or other content between two or more persons. Whilst it would not usually be in the public interest to prosecute the consensual sharing of an image between two children of a similar age in a relationship, a prosecution may be appropriate in other scenarios. Prosecutors should also consider the availability of other substantive offences relating to child sexual abuse – see the legal guidance on Indecent and Prohibited Images of Children and Rape and Sexual Offences.

When considering public interest factors, prosecutors should take into account that children may not appreciate the potential harm and seriousness of their communications and as such the age and maturity of suspects should be given significant weight, particularly if they are under the age of 18.

There is no automatic anonymity for victims where an offence under section 33 CJA 2015 is charged. Prosecutors should consider applying for reporting restrictions for adults under section 46 Youth Justice and Criminal Evidence Act 1999.

Sharing Intimate Photographs or Film - Section 66B(1)-(3) SOA 2003

The offences under section 66B(1)-(3) SOA 2003 are committed when an offender [A] intentionally shares a photo or film which shows, or appears to show, another person [B] in an intimate state, and:

  • section 66B(1) SOA 2003: B does not consent to the sharing of the photograph or film, and A does not reasonably believe that B consents [subject to a defence of reasonable excuse for sharing the photograph or film – section 66B(8) SOA 2003]; or
  • section 66B(2) SOA 2003: A does so with the intention of causing B alarm, distress or humiliation, and B does not consent to the sharing of the photograph or film; or
  • section 66B(3) SOA 2003: A does so for the purpose of A or another person obtaining sexual gratification, B does not consent to the sharing of the photograph or film, and A does not reasonably believe that B consents.

In the absence of an identified victim, prosecutors should consider whether lack of consent may be inferred depending on the evidence in the case.

A magistrates’ court or jury considering offences under sections 66B(2) or 66B(3) SOA 2023 may, if acquitting of those offences, instead convict the offender of an offence under section 66B(1) SOA 2003 (section 66B(12) SOA 2003).

A person convicted of an offence under section 66B(3) SOA 2003 may be subject to notification requirements (sex offenders register) - see section 80 SOA 2003, and paragraph 33B of Schedule 3 SOA 2003 [as inserted by paragraph 16(4) of Schedule 14 OSA 2023]

Threatening to Share Intimate Photographs or Film – Section 66B(4) SOA 2003

Section 66B(4) SOA 2003 creates an offence of threatening to share an intimate photograph or film.

The offence is committed where an offender threatens to share a photograph or film which shows, or appears to show, another person (B) in an intimate state; and, the offender does so: (i) with the intention that B or another person who knows B will fear that the threat will be carried out, or (ii) being reckless as to whether B or another person who knows B will fear that the threat will be carried out.

Where a person is charged with this offence, it is not necessary for the prosecution to prove that the photograph or film mentioned in the threat exists; or if it does exist, that it is in fact a photograph or film which shows or appears to show a person in an intimate state (section 66B(7) SOA 2003).

Exceptions

Section 66C SOA 2003 provides exceptions to the offences under sections 66B(1), (2) and (3) SOA 2003, where:

  • the photograph or film was taken in a place to which the public had access; that B had no expectation of privacy; and, B was (or A believed B was) in an intimate state voluntarily [section 66C(1) & (2) SOA 2003].
  • A reasonably believes that the photograph or film had been previously publicly shared, and B had (or A reasonably believes that B had) consented to the previous sharing [section 66C(3) SOA 2003].

Further exceptions to the offence under section 66B(1) SOA 2003 apply where:

  • B is a person under 16; B lacks, or A reasonably believes that B lacks, capacity to consent to the sharing of the photograph or film; and, the photograph or film is shared either with a healthcare professional acting in that capacity, or otherwise in connection with the care or treatment of B by a healthcare professional [section 66C(4) SOA 2003].
  • a photograph or film which shows, or appears to show, a child in an intimate state, is of a kind ordinarily shared between family and friends [section 66C(5) SOA 2003].

An exception to the offence under section 66B(4) SOA 2003 applies if the person would not commit an offence under section 66B(1), (2) or (3) SOA 2003 by sharing the photograph or film in the circumstances conveyed by the threat.

Meaning of ‘intimate state’

The definition of what constitutes an ‘intimate state’ (section 66D(5) & (6) SOA 2003) is widely drawn, subject to the exception in section 66D(8) SOA 2003.

An intimate state is defined as a photograph or film that shows or appears to show: a person engaging in an act which a reasonable person would consider to be a sexual act; a person is doing something would a reasonable person would consider to be sexual; all or part of a person’s exposed genitals, buttocks or breasts; a person in an act of urination or defecation; or, a person carrying out an act of personal care associated with that person’s urination, defecation or genital or anal discharge (section 66D(5) SOA 2003).

Section 66D(6) SOA 2003 further provides that the reference to all or part of a person’s “exposed” genitals, buttocks or breasts includes:- (a) a reference to all or part of the person’s genitals, buttocks or breasts visible through wet or otherwise transparent clothing; (b) the case where all or part of the person’s genitals, buttocks or breasts would be exposed but for the fact that they are covered only with underwear; and (c) the case where all or part of the person’s genitals, buttocks or breasts would be exposed but for the fact that they are obscured, provided that the area obscured is similar to or smaller than an area that would typically be covered by underwear worn to cover a person’s genitals, buttocks or breasts (as the case may be). An image which is ‘obscured’ means obscured by any means (other than by clothing that a person is wearing, including) in particular, by an object, by part of a person’s body or by digital alteration [section 66C(7) SOA 2003].

The exception in section 66D(8) SOA 2003 provides that a photograph or film does not fall within the definition in section 66C(5) SOA 2003 of an ‘intimate state’ if it shows or appears to show something (other than breastfeeding) that is of a kind ordinarily seen in public. The question of whether a photo or film shows something ‘of a kind ordinarily seen in public’ will be a matter of fact and degree in each case.

As regards breastfeeding (as further defined in section 66D(9) SOA 2003 to include the rearranging of clothing in the course of preparing to breastfeed or having just finished breastfeeding), the effect of the exception in section 66D(8) SOA 2023 is that photos or film of breastfeeding which satisfy the criteria of section 66D(5)-(6) SOA 2003 will constitute images of an ‘intimate state’ without further consideration of whether they are ‘of a kind ordinarily seen in public’.

Prosecutors should also consider the Voyeurism offences in sections 67 and 67A SOA 2003 – see the legal guidance Rape and Sexual Offences.

Reporting restrictions

Prosecutors should note that automatic reporting restrictions apply to the offences under section 66 SOA 2003, which consequently encompasses the offences in sections 66A and 66B(1)-(4) SOA 2003 (see section 2(3)(ha) Sexual Offences (Amendment) Act 1992).

For the purpose of the offence under section 66B(4) SOA 2003, the victim is taken to be either the person to whom an alleged threat was made, or (if different) the person shown (or who appears to be shown) in an intimate state in the photograph or film that is the subject of the threat [see section 6(2B) Sexual Offences (Amendment) Act 1992, as inserted by paragraph 13 in Part 3 of Schedule 14 OSA 2023].

False CSEA Reporting- Part 4, Section 69 Online Safety Act 2023

Part 4 of the Online Safety Act 2023 also created a new either-way offence in relation to CSEA reporting. This will commence once the Codes of Practice have been issued by OFCOM.

Within Part 4, section 69 of the OSA 2023, a requirement for UK regulated user-to-user and regulated search services is to operate their service using systems and processes which secure (so far as possible) that they report all detected and unreported CSEA content to the NCA/designated reporting body. Non-UK services are only required to report CSEA content to the NCA/designated reporting body where they can establish a UK link, unless they already report all CSEA content.

An individual commits this offence if they, in purported compliance with the reporting requirement, provide information that is false in a material respect, and know it is false in a material respect or are reckless to this fact.

There will not be a consequence if the provider reports CSEA content to the NCA which the provider thinks might have a link to the United Kingdom, but does not.

This offence is an either-way offence and carries a maximum penalty of up to 2 years’ imprisonment and/or a fine in England and Wales.

CSEA content is defined as content that amounts to an offence specified in Schedule 6 (OSA 2023). This references offences from the Sexual Offences Act (2003), Sexual Offences (Northern Ireland) Order (2008), Section 62 of the Coroners and Justice Act (2009) and Section 69 of the Serious Crime Act (2015)

The definition of detected content is when the provider becomes aware of the content, whether by means of the provider’s systems or processes or as a result of another person alerting the provider. This may include automated monitoring systems (i.e. hash matching), human moderators or user reports.

Jurisdiction - General Considerations

An offence must have a "substantial connection with this jurisdiction" for courts in England and Wales to have jurisdiction. It follows that, where a substantial number of the activities constituting a crime takes place within England and Wales, the courts of England and Wales have jurisdiction unless it can be argued, on a reasonable view, that the conduct ought to be dealt with by the courts of another country. See R v Smith (Wallace Duncan) (No.4) [2004] EWCA Crim 631. Substantial connection may be satisfied where either the suspect or the victim are in England and Wales.

There are a number of authorities on websites hosted in other jurisdictions:

  • R v Waddon, unreported, 6 April 2000, a case relating to the publication of an obscene article, the Court of Appeal held that the content of American websites could come under the jurisdiction of England and Wales when downloaded there: images published on a website abroad were further published when downloaded in England and Wales.
  • R v Perrin [2002] EWCA Crim 747: In assessing whether the publication by an American company of a web page breached the Obscene Publications Act 1959 s.2(1), it was not necessary for the court to show that the major steps in relation to publication took place within this jurisdiction.
  • R v Sheppard [2010] EWCA Crim 65: where an offender had produced racially inflammatory material and posted it on a website hosted by a remote server in the United States, he could be tried in England and Wales because a substantial measure of his activities had taken place there, as required by the test laid down in R v Smith (Wallace Duncan).

For more detail on jurisdictional issues, see the legal guidance Jurisdiction.

Evidence of Victims

Prosecutors should consider whether it is necessary to call the victim to give evidence at a trial. Whilst the communications offences under s.1 MCA 1988 and s.127 CA 2003 do not require proof of receipt of a message (merely that the message was sent), a victim's evidence about whether they were caused gross offence, fear or apprehension will potentially be a relevant consideration (depending on the other evidence in the case) as to whether the message had that quality – but is not determinative.

Prosecutors should consider the views of a victim and the testimony they can give before deciding whether to require them to give evidence. Where a victim is to give evidence, prosecutors should consider the availability of Special Measures.

Whether or not a victim is to be required to give evidence, it is likely to be a reasonable line of enquiry to seek that evidence. A decision not to call a victim to give evidence should be reached having taken reasonable steps to obtain a victim statement or otherwise their account, and then considering it during the decision-making above.

Public Interest Stage of the Code for Crown Prosecutors

Prosecutors must be satisfied that a prosecution is required in the public interest and, where Article 10 ECHR is engaged, this means on the facts and merits of the particular case that it has been established that a prosecution is necessary and proportionate. Particular care must be taken where a criminal sanction is contemplated for the way in which a person has expressed themselves on social media. This means particular care in the application of the framework provided by the Code for Crown Prosecutors is required.

In applying the Code, it may assist for prosecutors to have particular regard to:

  • The likelihood of re-offending. The spectrum ranges from a suspect making a one-off remark to a suspect engaged in a sustained campaign against a victim;
  •  
  • The circumstances of and the harm caused to the victim, including whether they were serving the public, whether this was part of a coordinated attack ("virtual mobbing"), whether they were targeted because they reported a separate criminal offence, whether they were contacted by a person convicted of a crime against them, their friends or family;
  • Whether the suspect has expressed genuine remorse;
  • Whether swift and effective action has been taken by the suspect and/or others for example, service providers, to remove the communication in question or otherwise block access to it;
  • Whether the communication was or was not intended for a wide audience, or whether that was an obvious consequence of sending the communication; particularly where the intended audience did not include the victim or target of the communication in question;
  • Whether the offence constitutes a hate crime (which may mean Article 10 is not engaged, but may also be a factor tending in favour of a prosecution in the public interest).

Separate guidance covers the particular considerations which apply when dealing with a suspect under the age of 18 or where their mental health is a relevant consideration: see Children as Suspects and defendants and Mental health: suspects and defendants.

Selection of charges

Section 6 of the Code for Crown Prosecutors should be applied when choosing between offences, including where communications offences and others might be charged.

The starting point is the summary offence(s) in section 127 CA 2003 Act or the summary offences in section 179(1) OSA 2023 and section 66B(1) SOA 2003. Prosecutors should consider whether those offences meet the section 6 Code criteria, to reflect the seriousness and extent of the offending and to give the court adequate powers of sentence. There are a number of additional offences as well as either-way communications offences which may be available: in general (but not always) where summary-only offences provide adequate powers of sentence, they should be charged, and other offences reserved for the most serious cases.

Violence against Women and Girls (VAWG)

Prosecutors should be familiar with, and apply, the legal guidance on Violence Against Women and Girls (VAWG) and Domestic Abuse, which includes practical guidance on casework preparation and case presentation.

The use of the internet, social media platforms, emails, text messages, smartphone apps (for example, WhatsApp; Snapchat), spyware and GPS (Global Positioning System) tracking software to commit VAWG offences is rising. Online activity is used to humiliate, control, and threaten victims, as well as to plan and orchestrate acts of violence. Social media may also be used to exert power and control in VAWG offences.

Some of this activity is colloquially known as "cyberstalking", which is generally described as a threatening behaviour or unwanted advances directed at another, using forms of online communications. Cyberstalking and online harassment are often combined with other forms of 'traditional' stalking or harassment. Examples of cyberstalking may include:

  • Threatening or obscene emails or text messages.
  • Spamming, where the offender sends the victim multiple junk emails.
  • Live chat harassment or 'flaming', a form of online verbal abuse.
  • "Baiting" or humiliating peers online by labelling them as sexually promiscuous.
  • Leaving improper messages on online forums or message boards.
  • Unwanted indirect contact with a person that may be threatening or menacing such as posting images of that person's children or workplace on a social media site, without any reference to the person's name or account.
  • Posting photoshopped images of persons on social media platforms (see section on False profiles for further details).
  • Hacking into social media accounts and then monitoring and controlling the accounts.
  • Sending electronic viruses.
  • Sending unsolicited email.
  • Cyber identity theft.

Prosecutors should consider the section on the impact and dynamics of domestic abuse in the Domestic Abuse legal guidance, and the guidance on Stalking and Harassment, and Controlling or Coercive Behaviour, which may also be relevant to cyberstalking.

Domestic abuse may involve evidence of social media offending, such as harassment, cyberstalking, or controlling or coercive behaviour through texts and emails, followed by an escalation to more serious non-social media offending, such as physical assaults. Prosecutors will need to assess whether it is appropriate to charge both types of offending; or, whether the overall criminality is sufficiently addressed by charges reflecting only the more serious offending. Where only the more serious offending is charged, it may be possible to adduce in evidence the social media activity, such as controlling behaviour, as background context.

Hate Crime Offences involving communications

Paragraph 4.14(c) of the Code for Crown Prosecutors provides: “It is more likely that prosecution is required if the offence was motivated by any form of prejudice against the victim's actual or presumed ethnic or national origin, gender, disability, age, religion or belief, sexual orientation or gender identity; or if the suspect targeted or exploited the victim, or demonstrated hostility towards the victim, based on any of those characteristics."

Such factors or context may sometimes elevate a communication that would otherwise not meet the high threshold to one that, in all the circumstances, can be considered grossly offensive. For instance, a reference within a communication to a recent tragic event, involving many deaths of persons who share any of the protected characteristics.

Hate crime messages may sometimes use language that prosecutors are not familiar with, but which may cause gross offence to those to whom it relates. Prosecutors should ensure that they fully understand the meaning and context of particular language or slurs used, so that they can properly assess the degree to which it may cause offence. To do so, further information may be sought from a complainant or from relevant community groups.

Both domestic and European case law have addressed the issue of Article 10 and racist / religious hate crime speech:

  • DPP v Collins [2006] UKHL 40 - it is consistent with Article 10 to prosecute a person for using the telecommunications system to leave racist messages. Effect must be given to Article 17 of the convention, which prohibits the abuse of any Convention rights, as held in Norwood v the UK (2004) 40 EHRR SE 111.
  • Extreme racist speech is outside the protection of Article 10 because of its potential to undermine public order and the rights of the targeted minority: Kuhnen v Germany 56 RR 205.
  • Holocaust denial or revision is removed from the protection of Article 10 by Article 17: see Lehideux and Isorni v France [2000] 30 EHRR 665; also M'Bala M'Bala v France (application no. 25239/13), where a blatant display of hatred and anti-Semitism disguised as an artistic production (comic performance), even if satirical or provocative, was not protected by Article 10.

Section 66 Sentencing Act 2020 (which applies to all convictions on or after 1st December 2020) provides for an increased sentence for hate crime offending - see the legal guidance on Prosecuting cases of Disability Hate Crime, Prosecuting cases of Homophobic, Bi-phobic and Transphobic Hate Crime, and Prosecuting cases of Racist and Religious Hate Crime.

Ancillary Orders

Prosecutors must consider ancillary orders upon conviction (and in the case of restraining orders, upon acquittal) for substantive offences, to prevent re-offending by the most serious and persistent offenders. These may include:

  • Criminal Behaviour Orders
  • Restraining Orders

Victim Personal Statements

Where there is an identified victim in a case involving a communications offence, prosecutors should request a Victim Personal Statement (VPS) if one has not already been made. The Code of Practice for Victims of Crime (Victims Code) provides guidance on the making and use of a VPS in criminal proceedings. Prosecutors should also refer to the legal guidance on Victim Personal Statements.

Community Impact Statements

A Community Impact Statement (CIS) may be used by the CPS to inform charging decisions and by the courts to inform sentencing decisions. Note that one of the public interest factors to consider under paragraph 4.12(e) of the Code is the impact of the offending on the community. Prosecutors should check with the police whether there is a CIS available in relevant cases – see also the legal guidance on Community Impact Statements.

Reporting and Preventing Abuse on Social Media

Persons who are subject to abuse on social media may wish to report the abuse to the police and / or to the social media platform.

Several platforms have developed tools to make reporting easier, to secure potential evidence and to prevent unwanted communications, including those that do not amount to a criminal offence. These include:

  • A report link, so that particular or multiple communications can be reported directly to the platform. Social media sites may then decide to remove content and disable or suspend accounts, although it is not technically possible for a platform to guarantee a user will not return once their account is closed. Note that if a matter is reported to the police, the police should make a data retention request to the platform, so that evidence is secured for any investigation.
  • Taking screenshots of the offending material, which can be saved on or off (for example, cloud storage or a USB drive) the device.
  • Tools to block or mute the person who has uploaded abusive content, so that they can no longer see posts or have a conversation with the victim.
  • Tools to unsubscribe or "un-follow" accounts that produce or share offensive material.
  • Login alerts, which prompt the platform provider to send a notification if someone tries to log into an account from a new place.
  • Privacy settings, to control who can see posts and information from profiles, such as phone numbers and email address.
  • Further cyber security advice can be found on the Government's website Cyber Streetwise, and on the Government supported website Get Safe Online.

In addition to the above, the OSA 2023 will make social media companies legally responsible for keeping children and young people safe online. It will protect children by making social media platforms:

  • remove illegal content quickly or prevent it from appearing in the first place. This includes removing content promoting self-injury.
  • prevent children from accessing harmful and age-inappropriate content.
  • enforce age limits and age-checking measures.
  • ensure the risks and dangers posed to children on the largest social media platforms are more transparent, including by publishing risk assessments.
  • provide parents and children with clear and accessible ways to report problems online when they do arise.

Some content that children and adults encounter online is already illegal. The OSA 2023 will force social media platforms to remove illegal content, stopping children and adults from seeing it. This is not just about removing existing illegal content; it is also about stopping it from appearing at all. Platforms will need to think about how they design their sites to reduce the likelihood of them being used for criminal activity in the first place.

Schedules 5, 6 and 7 of the OSA 2023 set out the type of illegal content that platforms will need to remove and includes:

  • child sexual abuse
  • controlling or coercive behaviour
  • extreme sexual violence
  • fraud
  • hate crime
  • inciting violence
  • illegal immigration and people smuggling
  • promoting or facilitating suicide
  • promoting self-harm
  • revenge porn
  • selling illegal drugs or weapons
  • sexual exploitation
  • terrorism

The Code for Crown Prosecutors

The Code for Crown Prosecutors is a public document, issued by the Director of Public Prosecutions that sets out the general principles Crown Prosecutors should follow when they make decisions on cases.

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Prosecution guidance

This guidance assists our prosecutors when they are making decisions about cases. It is regularly updated to reflect changes in law and practice.

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