Consultation on Interim Revised CPS Guidelines on Prosecuting Social Media Cases

Consultation closed

In light of the responses received, we have made a significant number of further changes to the Guidelines, including six new sections or subsections on:

• Overlapping hate crime.
• Vulnerable and intimidated witnesses.
• Community impact statements.
• Reporting and preventing abuse on social media.
• Obtaining social media evidence.
• Jurisdiction.

Method of Analysis

We received 42 responses, all of which have been analysed, including any received after the consultation closed. An overall evaluation of whether responses were positive (answered the question in a manner that suggested the guidance was likely to be helpful), or negative (suggested that the guidance needed to be significantly amended or that the focus was incorrect), or neutral (which includes responses that suggest some revisions) is shown at Annex A.

Each response to each question was analysed separately and the main points were identified and carefully considered. Not every respondent gave specific answers to each individual question but their views were considered. However, this summary does not address each and every point made by respondents.

General observations

A number of respondents requested that more detail be provided on specific issues or offences already covered in the guidance, such as of Controlling or coercive behaviour and Disclosing private sexual images without consent.

In some instances we have provided more information or links to other CPS guidance or policy on the particular offence. However, in many instances, we have not done so, as a link to more detailed CPS guidance had already been provided and the purpose of these Guidelines is to provide a consistent approach to prosecutor decision making on social media cases, rather than a detailed examination of the numerous issues and offences generated by social media activity.

Some respondents asked for the Guidelines to cover broader cyber-enabled and cyber-assisted offences. We have not done so, as these Guidelines are about offences involving communications, and we intend to publish separate legal guidance on cybercrime.

Other respondents asked for further clarification and examples of Category 4 grossly offensive communications that meet the high threshold for prosecution, including VAWG and Hate Crime cases. We have not done this, as we do not think it appropriate to define the threshold beyond what the courts have said. Moreover, it would not necessarily assist prosecutors to be given an extensive list of examples, as each case will turn on its own facts.

We received a number of responses that addressed issues outside the scope of the consultation or the guidelines, most of which we have not included in this Summary. These include:

• Suggestions for a change of law, including a framework or matrix of offences, sentences and sanctions
• Matters relating to police practice, procedures and investigation issues, including the length of investigations and police right of review schemes
• Suggestions relating to the practice, processes and procedures of social media platforms
• Requests for inclusion of offences that are not communications offences
• Matters relating to a particular case or personal experience.

However, where appropriate, we have passed on suggestions and responses to relevant CPS policy leads, such as those for VAWG and Hate Crime, so that they may consider them in the context of those portfolios.

Revisions

In light of the responses received, we have made a significant number of further changes to the Guidelines, including six new sections or subsections on:

• Overlapping hate crime
• Vulnerable and intimidated witnesses
• Community impact statements
• Reporting and preventing abuse on social media
• Obtaining social media evidence and
• Jurisdiction.

We have also made some revisions unrelated to responses received, either because of further matters that have come to our attention or simply to clarify the text or correct any inaccuracies. One example is the reiteration of the Code public interest factor for prosecuting offences where the victim was at the time a person serving the public. A number of social media attacks are made against public servants, such as teachers, MPs and, in a recent publicised case, a judge, and we wish to remind prosecutors that the Code seeks to protect those who are offended against whilst serving the public.

Summary of responses to specific questions

This section provides a summary of the key points and themes raised in response to each of the questions, and the changes made as a result of the feedback.

Question 1: Does the expanded section on Category 2 offences - Communications targeting specific individuals - cover all the main offences of this type? If not, what other offences might be covered?

There were 27 responses to this question.

Suggested changes that we have not made included:

• The introduction of a "trolling magnitude scale", instead of the 4 categories of offence types: we disagree, as the 4 categories are based on specific offence types and have proved useful in practice since their introduction 3 years ago.

Specific changes as a result of feedback

1. One respondent suggested that we should not use the term "revenge pornography", as it is misleading, inappropriate and insensitive. We agree and we have amended the title of the sub-section to Disclosing private sexual images without consent, and we explain that the offence is known colloquially as "revenge pornography". We shall also revise the relevant legal guidance.
2. "Sexting" was referred to by a number of respondents. We have added guidance on this in the section on Disclosing private sexual images without consent.
3. An additional example of ways in which a person may commit the offence of Controlling or coercive behaviour, by limiting access to and use of social media.
4. We have added "stalking" to the sentence which explains the potential for overlapping offences.
5. We have added a reference and link to the section on hate crime.

Question 2: Does the new section on VAWG cover the key issues in social media VAWG offences? If not, what other issues might be included?

There were 32 responses to this question.

Suggested changes that we have not made included:

• VAWG should be reflected throughout the guidelines. We disagree, as it would not be appropriate to reflect VAWG throughout, as the guidelines are broader than VAWG. However, we have added some further cross references to the VAWG section, where appropriate.

Specific changes as a result of feedback

1. A number of respondents suggested that the section places too much focus on women and girls, to the exclusion of other vulnerable victims; and that there was insufficient emphasis on crimes committed against men and boys, which should be given more recognition. The introduction to the section does indicate that CPS VAWG policies apply to men and boys, as well as to women and girls. However, we have made some revisions to the introduction, to try to make it clearer that the VAWG policy, and the section in particular, applies to men and boys.
2. We have also created a new section on Vulnerable and intimidated witnesses, which addresses the issue of vulnerable victims and reminds prosecutors to consider whether "special measures", to assist the victim to give evidence, are required.
3. We have added further examples of cyberstalking:
   • "Baiting", or humiliating peers online by labelling them as sexually promiscuous.
   • Making unwanted indirect contact with a complainant, which may be threatening or menacing.
   • Placing "photoshopped" images of persons on social media platforms - this example is explained further in the section on "False or offensive social media profiles".
   • Hacking into social media accounts and then monitoring and controlling the accounts.
4. We have added cyberstalking to the examples of social media offending in the sub-section on Non-social media VAWG offences.
5. We have included a reference in the VAWG section to the way in which social media can be harnessed to commit specific types of offending or behaviour against women and girls, such as honour based violence and forced marriage.

Question 3: Does the new section on Hate Crime cover the key issues in social media Hate Crime offences? If not, what other issues might be included?

There were 28 responses to this question.

Suggested changes that we have not made included:

• Highlighting in the guidelines any areas of under-performance on hate crime: we do not consider the guidelines to be the appropriate place to address any performance issues.
• Introducing a duty of care for reckless communications: we cannot do this as law change is outside the scope of the consultation.
• Assessing the "grossly offensive" test subjectively in hate crime cases: we disagree, as the law states otherwise, although we have already included text from DPP v Collins which indicates that we need to consider whether the message is liable to cause gross offence to those to whom it relates.
• Removal of the word "banter", as an acceptable form of communication: we disagree, as this is taken from case law, and we must apply the law.

Specific changes as a result of feedback

1. We have added to the hate crime section a brief summary of the wider international context of CPS hate crime policy.
2. We have added a sub-section under "Hate crime" on "Overlapping hate crime", to indicate that where people are targeted for a number of overlapping reasons, such as race, religion, disability, gender or sexual orientation, we will apply the relevant CPS policies.
3. A number of respondents requested information on Community Impact Statements. We have added a new section on these, which assist prosecutors to make charging decisions and courts to determine the appropriate sentence in cases where offending causes specific harm to a particular community.
4. We have added a reference to a further European Court of Human Rights authority on anti-Semitism and Article 10: M'Bala M'Bala v France, which relates to a comic performance.
5. We have added a reference and link to the legal guidance on Prosecuting cases of homophobic and transphobic hate crime in the sub-section on "Sentencing uplift".
6. A number of respondents said it is important that prosecutors understand the meaning and context of particular hate crime language or slurs, so that they can properly assess the degree to which it may cause offence. We have added a line to stress this in the Hate Crime section.

Question 4: Does the new section on Ancillary Orders cover the main principles to consider when imposing conditions and prohibitions relating to internet use and access? If not, what other principles might be covered?

There were 24 responses to this question.

Suggested changes that we have not made included:

• Guidance on stalking protection orders: these have been consulted on by the Home Office but are not yet available. If they become available, we can amend the guidelines.
• Inclusion of non-molestation orders: these are civil, not criminal orders (although breach can be dealt with by criminal prosecution), and are not available to prosecutors or the police.

Specific changes as a result of feedback

1. We have provided information on sending court orders that prohibit a person from using social media sites to relevant social media platforms, so that the person's account can be taken down.
2. One respondent suggested that Domestic Violence Protection Orders are not available in online abuse cases. This is incorrect, but we have clarified the conditions that need to be met to obtain an order, explaining how this may be met by online abuse.
3. We have expanded on when it may be necessary to prohibit use of social networking sites, by reference to the case of R v Henson [2016] EWCA Crim 425.

Question 5: Do you have any further comments on the revised Guidelines on prosecuting cases involving social media?

There were 31 responses to this question.

We received a large number of further suggestions for amending the Guidelines, many of which we have adopted.

Suggested changes that we have not made included:

• Revise the guidance on the high threshold for prosecuting category 4 cases. We disagree, as the threshold reflects the case law.
• he use of penalties to fine social media platforms if they fail to meet a standard duty of care: this is beyond the scope of the consultation.
• The difficulty caused to police investigations by platform tools that allow anonymous communications and encryption of communications. This is outside the scope of the guidelines. However, we have provided links to cyber security websites.
• One respondent suggested we link factors (a) and (b) in the section on Article 10, so that factor (b) – removal of the communication - can only be considered if factor (a) applies – the suspect has expressed genuine remorse. We disagree: these factors were separated following the consultation in 2013, and it seems appropriate to consider them separately.
• Re-iteration of information on prosecutors' responsibilities to victims and witnesses, provided in Legal Guidance and the Victims' Code of Practice: since this is available in these other documents, we do not agree that we need repeat it in the Guidelines.
• A request that we use the term "gender identity" throughout the document, instead of both "gender identity" and "transgender identity": the reason we use both terms is because they reflect the language used in statute and in the Code for Crown Prosecutors.
• A greater use of out of court disposals, such as cautions and conditional cautions, for low-level offending, so as not to overburden the courts: since we do not charge a category 4 offence unless a high threshold is met and, as far as we are aware, the courts are not overburdened with these offences, we do not require a policy to make more use of OOCDs in this area.

Specific changes as a result of feedback

1. One respondent suggested that the Guidelines be divided into two parts, offence types and other issues, to improve clarity. We agree and we have done this.
2. A number of respondents asked us to define what we mean by "social media" in the Guidelines. We have done this in the introduction.
3. A number of respondents requested clarification on whether re-sending, re-tweeting, and sharing communications could amount to an offence. The introduction already explained that re-sending and re-tweeting does constitute an offence. We have now added sharing to this list.
4. One respondent requested clarification on the liability of social media platforms; and another respondent raised the question of liability of online media outlets for comments placed under news articles. We consider that the potential criminal liability of social media platforms and online newspapers is unlikely to be an issue in the vast majority of cases, and therefore too peripheral to merit inclusion in the Guidelines.
5. A number of respondents provided or requested useful information to assist people who may be victims of online abuse. We have included such information in a new section on Reporting and preventing abuse on social media.
6. A number of respondents suggested that guidance could be provided on how to obtain digital evidence. A new, short, section on Obtaining social media evidence has been inserted, to direct prosecutors to other internal guidance on this subject.
7. One respondent suggested that we clarify the section on The Public Interest by dividing the factors into separate bullets, as per the format used for Article 10 factors. We agree and we have done this.
8. One respondent was concerned with the impact on victims who are targeted for social media abuse as revenge for reporting a criminal offence. In effect, the victim is offended against twice. We have added a factor under the public interest to cover this - The victim is targeted in response to the victim reporting a separate criminal offence.
9. One respondent requested that the Guidelines cover communications from prisoners to the victim of their crime. We have added a factor under the public interest to cover this - A person convicted of a crime subsequently contacts the victim of that crime, or their friends or family.
10. A number of respondents requested guidance on attacks by different people or campaigns of harassment on social media, sometimes referred to as "virtual mobbing". We clarify in the section on category 4 offences that those who encourage such attacks may be charged with encouraging an offence under the Serious Crime Act 2007. We have also included this as a factor to consider under the targeting of specific individuals, in the section on the public interest.
11. A number of respondents requested clarification of jurisdiction issues, such as where material is posted in another jurisdiction but published in the jurisdiction of England and Wales. We have addressed this by adding a new section on Jurisdiction, which includes a link to the CPS guidance on Jurisdiction.
12. We have clarified that the time limit for bringing prosecutions under Section 127 of the Communications Act 2003 was extended to three years by s51 of the Criminal Justice and Courts Act 2015.
13. In the section Initial Assessment, The reference to "robustly" prosecuting cases in Categories 1-3 has been removed, to avoid any misperception that we would not also robustly prosecute Category 4 cases. The different approach to these categories of cases is now more clearly explained, by reference to the Full Code Test.
14. One respondent suggested we refer to "special measures" in the Guidelines. This has been included in the new section on Vulnerable and intimidated witnesses: see under question 2 above.
15. One respondent requested further examples of false or offensive social media profiles: we have added an example of a "photoshopped" image.
16. One respondent suggested a reference to witness intimidation, which we have included under category 1, Threats.
17. One respondent requested guidance on internet fantasy chats, which graphically discuss the sexual abuse of children. We have referenced the case of R v GS in the section on category 4 cases, indicating that a charge under the Obscene Publications Act 1959 may be appropriate.
18. We have added the offence of Stalking involving fear of violence or serious alarm or distress, s4A of the Protection from Harassment Act 1997, to the section on category 1 offences, Threats.
19. The reference in Category 3 to the "victim" of a sexual offence has been amended to the "complainant" of a sexual offence, in line with section 5 of the Sexual offences (Amendment) Act 1992.
20. The reference to "offences" under the Contempt of Court Act 1981 in the section on Initial Assessment has been amended to "contempts".

Annex A

Numbers and Percentages of Positive, Negative and Neutral Responses

This annex provides an evaluation of whether responses to each question were:

• Positive (answered the question in a manner that suggested the guidance was likely to be helpful); or
• Negative (suggested that the guidance needed to be significantly amended or that the focus was incorrect); or
• Neutral (includes responses that suggest some revisions).

1. Does the expanded section on Category 2 offences - Communications targeting specific individuals - cover all the main offences of this type? If not, what other offences might be covered?

2. Does the new section on VAWG cover the key issues in social media VAWG offences? If not, what other issues might be included?

3. Does the new section on Hate Crime cover the key issues in social media Hate Crime offences? If not, what other issues might be included?

4. Does the new section on Ancillary Orders cover the main principles to consider when imposing conditions and prohibitions relating to internet use and access? If not, what other principles might be covered?

5. Do you have any further comments on the revised Guidelines on prosecuting cases involving social media?