Malicious communications offences are governed by two key pieces of legislation: the Malicious Communications Act 1988 and the Communications Act 2003. While the former deals with communications over the phone and by letter, updates were made in the latter legislation to deal with electronic communication methods, but the rules about what constitutes illegal communications are largely the same between the two documents.

There are several types of offences with which you may be charged under these laws, and they vary significantly in severity. The maximum penalty for the most serious offences includes a custodial sentence (the legal name for a prison sentence) and a fine, but this is affected significantly by sentencing guidelines. These guidelines outline several categories that an offence may fall into, and these help prosecutors to determine which penalties are applicable - for example, whether to be lenient or to push for the maximum sentence based on the level of harm intended and any actual harm done.

As such, if you are charged with an offence under the Malicious Communications Act 1988 or the Communications Act 2003, it is vital to seek expert legal advice and representation. The right solicitor can evaluate the relevant circumstances, present your defence to the court and if you are convicted, help to make sure that your sentence is fair and not overly harsh.

Here, the experienced malicious communications solicitors at Tyler Hoffman explain the common offences, the sentences you could receive for each, and the strategies you can use to build a strong defence during legal proceedings.

What are the common offences under the Malicious Communications Act 1988 and the Communications Act 2003?

There are two pieces of legislation governing offensive communications, which means that there are several different charges you may receive. The Malicious Communications Act 1988 governs many different types of messages and communication methods, while the Communications Act 2003 is designed specifically to address electronic communication like text messages or direct messages on social media platforms. Therefore, while these pieces of legislation cover much of the same ground, there are fundamental differences and you could be charged under either law, or both, depending on the circumstances under which you are accused of sending malicious communications.

We have listed some of the most common offences below

Malicious Communications Act 1988

This law targets messages sent to cause harm or distress, and you may be charged with sending a letter, electronic communication, or other article with intent to cause distress or anxiety to the intended recipient. This includes content that:

• Is indecent or grossly offensive. The courts assess what is "grossly offensive" or "indecent" based on an objective standard.
• Contains grossly offensive language.
• Attacks protected characteristics such as someone's race, sexual orientation or religious beliefs.
• Is threatening or contains threats to harm the recipient or others. This does not need to include physical harm, and may mean threats to disclose intimate material or other attempts to cause needless anxiety to the recipient.
• Aims to insult, humiliate or intimidate someone.
• Includes knowingly false statements intended to distress or worry the intended victim.

In addition, there is also a 'making false calls to the emergency services' offence that is governed by this act.

If you are found guilty of one of the offences listed above (or enter a guilty plea), your sentence will depend on elements like the harm intended, the actual harm caused, and whether or not there were aggravating factors such as the use of discriminatory language.

Communications Act 2003

This law covers improper use of public electronic communications networks. Common offences include:

• Sending grossly offensive or indecent messages via public communications platforms, including social media, emails and mobile networks.
• Persistent misuse of communications systems, such as by repeatedly sending unwanted messages. These messages may not be offensive individually but collectively cause distress.
• Knowingly transmitting false information, such as fake emergency alerts or fraudulent warnings.

These offences often overlap with other criminal laws, such as harassment or stalking provisions, which can affect sentences. Expert legal representation can present mitigating factors that will help to ensure your sentence is fair.

What are the sentencing guidelines for malicious communications offences?

The sentencing guidelines for offences under the Malicious Communications Act 1988 and Communications Act 2003 depend on factors such as the severity of the offence, harm caused, and culpability of the offender. These offences are typically dealt with in the Magistrates’ Court, though serious cases may be referred to the Crown Court.

Sentences are determined by examining the combination of culpability and harm in each offence. The court looks at whether the alleged offences included intentional targeting of vulnerable individuals, prolonged or repetitive behaviour, premeditation or the use of technology to avoid detection. If so (such as in cases where someone instigated a targeted campaign of harassment), an offender will be considered highly culpable and receive a strong sentence. For actions that were impulsive, lacked any specific target or only happened once, the court will usually find that the offender was less culpable and they are likely to receive a lesser sentence as a result.

Similarly, the results of the offence will be taken into consideration. Actions that cause substantial distress, fear or long-lasting psychological harm are likely to receive the maximum sentence, while those that resulted in minimal harm (but are still found to represent grossly offensive communications) may not. The possible sentences in each case are:

For a summary offence tried in the Magistrates’ Court, the maximum sentence is up to six months' imprisonment.

• For offences tried in the Crown Court, a sentence may be up to two years' imprisonment.
• An unlimited fine (for offences committed after 13 April 2015).
• A community order with requirements such as unpaid work, curfews or rehabilitation activities.
• A restraining order to restrict future contact with the victim.
• Compensation orders to address financial losses or psychological harm.
• A requirement to undergo mental health treatment if mental health issues contributed to the offence.

As we have noted, aggravating factors may be presented to demonstrate that the person intended to cause distress or to emphasise the harm that resulted from the offence. These include:

• A vulnerable victim (such as an older person or someone with mental health issues).
• Use of public forums or social media to amplify harm.
• Persistent or repeated offending.
• Messages involving threats of violence.

There are also mitigating factors that your defence solicitor can present that can demonstrate a lack of intention to cause harm and thereby result in a lesser sentence. This might involve: 

• Evidence of the offender’s genuine remorse or steps taken to apologise.
• Evidence of impulsive or reactive behaviour that led to the offence.
• A lack of a prior criminal record.
• The offender's mental health issues or immaturity affecting their judgment.

The courts rely on the overarching Sentencing Guidelines for assessing harm and culpability, as no specific guidelines have been published by the Sentencing Council for malicious communications offences. They may refer to analogous offences, such as harassment or stalking, to guide sentencing decisions. The actual sentence will vary based on the specific circumstances of the case, with judicial discretion playing a key role.