Helen Hanley, PNLD Legal Adviser, provides an overview of offensive communications and the law as presented by Alisdair Gillespie at our Criminal Law Conference on Thursday 4th October 2018.
Professor Alistair Gillespie, Head of Lancaster University Law School gave an articulate and insightful presentation on the very topical area of ‘Offensive communications and the law’ at this year’s PNLD conference.
Alistair began his presentation by referencing a comment made recently by John Apter, the Chair of Police Federation, in relation to police officers being frustrated by having to spend so much time dealing with Facebook problems rather than dealing with ‘real crimes’ such as burglaries. Alistair questioned why behaviour previously carried out offline and deemed lawful, is now being carried out online and reported as crime, leaving frontline officers being faced with the difficult task of identifying an offence and then dealing with it.
Alistair went on to describe the three main offences that can be considered in relation to offensive communications:
1. Section 1 of the Malicious Communications Act 1988 - sending indecent/offensive/threatening letters/electronic communications/other articles.
2. Section 127 of the Communications Act 2003 - nuisance messages - improper use of public electronic communications network.
3. Section 18 of the Public Order Act 1986 - use of words or behaviour or display of written material - racial hatred.
He ran through the key points to prove for the offence under section 1 of the Malicious Communications Ace 1988 and for the offences under sections 127(1) and (2) of the Communications Act 2003, detailing key terms and providing information on supporting cases. In doing so, Alistair teased out the similarities and differences between the offences and raised the issue of lack of clarity in definitions and in particular of how the terms ‘indecent’, ‘grossly offensive’ are not at present clearly defined by the legislation and even the courts refuse to say exactly what they mean, making it difficult to confirm a threshold.
Alistair then provided the delegates with some statistics on prosecutions for the offences and explained his findings that:
1. there has been a significant increase in prosecutions under section 1 of the Malicious Communications Act 1988 over the last 3 years from 1,955 to 3,058;
2. prosecutions made under section 127 of the Communications Act 2003 have not increased as significantly, rising from 2,796 to 2,963 over the last 3 years; and
3. the CPS are tending to prosecute offences of racial hatred under section 1 of the Malicious Communications Act1988 or section 127 of the Communications Act 2003, rather than under the Public Order Act 1986, as these offences are easier to secure prosecution.
He concluded that this area of law is in desperate need of reform, noting that the Law Commission have been asked to look at the issue of the law covering offensive online communications, but at the moment haven’t provided any formal consultation document or report. Alistair considers that they may propose to replace the section 1 and section 127 offences and replace them with a single either-way offence that will likely cover both private and public telecommunication systems, and will almost certainly have some form of mental fault element included. He acknowledged however, that even if they do this, the problem of reconciling the legislation with Article 10, ECHR may still exist – a matter which he feels may well still continue to be left with the courts.
Download the article (PDF 791KB)
Download Alisdair's PowerPoint presentation (PDF 1,080KB)
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Thursday 17th October 2019