Communications offences
Principle
Various statutes regulate telecommunications, television, broadcasting and postal services and create many offences of which those most frequently encountered by the CPS are considered in this section.
Charging practice
General
Many of the offences dealt with below can be charged either under the relevant communications legislation or general legislation such as the Theft Acts. As a general practice you should use the relevant communications charge specifically designed to cover the conduct in question.
Fraudulent use of telecommunication system - Section 42 Telecommunications Act, 1984
An offence under the Telecommunications Act 1984 section 42, see Stones 8 - 30107, covers a person using a device to make a telephone call without paying. It will invariably be preferable to charge this offence rather than one of dishonest abstraction of electricity. It applies to a person who has obtained the benefit of a telephone or telex service when there was no intention to pay; such a charge will normally be more appropriate that one of obtaining services by deception.
The prosecution must prove:
- That the telecommunication system comes within the definition of section 42(2) TA as one which is authorised by a licence granted under section 7 TA (a statement for this purpose can be obtained from the telecommunication service provider);
- That the defendant has been fraudulent;
- An intent to avoid payment.
It does not cover an employee dishonestly using an employer's telephone for private purposes as it is anticipated that the employer will pay the telephone bill; in such cases consider charging contrary to section 13 of the Theft Act 1968, see Archbold 21 - 164 et seq.
Possession or supply of equipment for the purposes of telecommunications fraud
Section 42A of the Telecommunications Act 1984, see Stones 8-30107A, provides for two offences of possession or supply of anything intended for use in connection with telecommunications fraud.
Mobile phone cloning
Mobile phone cloning involves the identity of a mobile phone being copied into another mobile phone so that calls made by the latter are billed to the account of the copied phone. Consider charging section 42A Telecommunications Act, 1984, see Stones 8 - 30107A.
Mobile phone reprogramming
Section 1 of the Mobile Telephones (Re-Programming) Act 2002 makes it an offence if a person:-
- Changes with a unique device identifier;
- Interferes with a unique device identifier;
- Offers to re-programme a mobile telephone; or
- Agrees to re-programme a mobile telephone.
Subsection 3 provides a statutory defence to anyone who is the manufacturer of the phone or does the above with the written consent of the manufacturer.
The offence is Either Way, with the maximum sentence on indictment being 5 years imprisonment, or a fine, or both. The maximum sentence on summary conviction is 6 months imprisonment or a fine not exceeding the statutory maximum, or both.
Improper use of telecommunications system - Section 43 TA
The Telecommunications Act 1984 section 43, see Stones 8 - 30107B, covers the sending of improper messages. Section 43(1)(a) relates to a message etc that is grossly offensive or of an indecent, obscene or menacing character and should be used for indecent phone calls. Section 43(1)(b) targets false messages and persistent misuse to cause annoyance, inconvenience or needless anxiety; it covers somebody who persistently makes silent phone calls (usually covered with only one information because the gravamen is one of persistently telephoning rendering separate charges for each call unnecessary).
If a message sent is grossly offensive, indecent, obscene, menacing or false it is irrelevant whether it was received. The offence is one of sending, so it is committed where the sending takes place.
It is more appropriate to charge bomb hoaxes under section 51 of the Criminal Law Act 1977. See Public Order Offences, elsewhere in this guidance.
The system must be a public telecommunication system; the section covers neither an internal system nor a cable programme service (see section 43(2)).
Jurisdiction
You must be alert to the question of jurisdiction as the offence is committed where the sending takes place. It follows that a call from France to England or Wales which is not heard by anyone cannot be prosecuted (for example, a call recorded on an answer phone): the person who makes the call is outside the jurisdiction and no part of the essential element of the offence takes place in this country. However, as the TA applies in Scotland and Northern Ireland, an offence will be committed if the case is made in those countries.
Unlawful disclosure of messages - Sections 45 and 45 TA 1984
The Telecommunications Act 1984 section 44, see Stones 8- 30107C, deals with modification or interference with messages and section 45, see Stones 8 - 30107D, deals with the unlawful disclosure of messages etc by persons engaged in running a public telecommunication system. Their use may raise sensitive issues and the offence should not be charged without reference to a CCP, Sector Director or designated officer.
Assaults/obstruction of telecommunication staff
The Telecommunications Act section 46, see Stones 8-30107E, creates offences of assault or obstruction of persons engaged in the business of a public telecommunications operator. Such offences are punishable by a fine only so are clearly unsuitable where either physical injury is caused or the offence is other than minor.
Supplying apparatus not properly marked and failure to comply with the requirements concerning advertisements
The Telecommunications Act 1984 section 28, see Stones 8 - 30106Y, and section 29, see Stones 8 - 30106Z, create offences. Such matters should be referred to the Director General of Telecommunications (Licence Compliance Directorate, Casework Manager, telephone 020 7639 8782) unless they accompany other offences which are more appropriate for the CPS to prosecute, in which circumstances the Directorate should be informed and assistance obtained as necessary (see also section 53 at Stones 8-30107G.
Broadcasting offences
The Broadcasting Act 1990 (see Stones 8 - 30107Q et seq) embraces independent television and other television or radio frequency services. Some of the offences therein require the DPP's consent.
Marine etc broadcasting offences
Offences contrary to the Marine etc Broadcasting (Offences) Act 1967, see Stones 8 - 30106E, are unusual, have extra-territorial capacity and are complex in manner of proof. You should seek the assistance of The Radio communications Agency, Aeronautical and Maritime Services Unit, Section Head, Wyndham House, 189 Marsh Wall, London E14 9SX, Tel. 020 7211 0225.
Land-based unauthorized broadcasters are dealt with by the Radio communications Agency.
Unauthorised decoders for encrypted services
Decoders are devices designed or adapted to enable encrypted transmissions to be decoded. It is an offence under section 297(A) Copyright, Designs and Patents Act 1988 to manufacture, import or distribute unauthorized decoders. See Stones 8 - 5834.
The Electronic Communications Act 2000 (http://www.legislation.hmso.gov.uk/acts/) establishes the duty of the Secretary of State to establish and maintain a register of approved providers of cryptography support services. See Stones 8 - 30108S.
Offences under section 297 above will be rare albeit of high public interest. The scale of the case may merit consideration of conspiracy charges where there are elements of manufacture and distribution on a sufficient scale, for example of smart cards to intercept satellite broadcasts.
When a device is used to decode disseminated material of an obscene nature the case should be referred to London Branch 2 of the Casework Directorate in HQ.
Interception and disclosure of messages - Wireless Telegraphy Act 1949, Section 5
The Wireless Telegraphy Act 1949 section 5(b)(i) makes it an offence for a person to use wireless telegraphy apparatus with intent to obtain information without authorization. See Stones 8 - 30105Z.
The prosecution must prove use, which imputes some form of utilization or employment of the apparatus over and above mere possession. Evidence of switching on or tuning to unauthorized frequencies assists in proving use. In Paul -v- Ministry of Posts and Telecommunications [1973] Crim LR 322 it was held that no intent was necessary other than the intent to do the prohibited act.
An advertisement purporting to encourage people to buy scanners or listen to police channels and telephone lines constitutes an offence of inciting readers to commit an offence under section 5(b). Such prosecutions are dealt with by the Department of Trade and Industry. However, because section 5(b) is a punishable by a fine only a charge of inciting an offence under Section 1 of the Regulation of Investigatory Powers Act 2000, see Stones 8 - 24212, may be appropriate if the advertisement incites readers to use the device to listen to telephone lines.
Unlawful interception of communications
The Regulation of Investigatory Powers Act 2000 section 1, see Stones 8 - 30108Z, creates offences of unlawful interception. Subsection (1) relates to public postal services and public telecommunications systems whereas subsection (2) relates to private telecommunications systems. Such offences can only be committed intentionally and without lawful authority, are triable either way and any prosecution requires the DPP's consent. See also section 2, Stones 8 - 30109, and subsequent sections. See also Telephone Intercepts, elsewhere in this guidance.
Threatening letters or other articles
The Malicious Communications Act 1988 section 1, see Stones 8 - 20830, has been amended by the Criminal Justice and Police Act 2001 section 43. The section deals with the sending to another of any article with intent to cause distress or anxiety. The offence covers letters, writing of all descriptions, electronic communications, photographs and other images in a material form, tape recordings, films and video recordings. Poison-pen letters are usually covered.
Particularly serious examples must justify a more serious charge, eg threats to kill.
The offence is one of sending or transmitting, so:-
- It is committed where the sending or transmitting took place, and
- There is no requirement for the article to reach the intended recipient.
Prosecutors should note that the non-amended version of the section appears in volume 3 of the 2001 edition of Stones and need to be vigilant to ensure that courts follow the amended version and are aware of their increased powers. Apart from the terms of the offence being broadened and varied the maximum sentence for an offence committed after the act came into force on 11th May 2001 is imprisonment for a term not exceeding 6 months or a fine not exceeding level 5 on the standard scale or both.
Interference with mail - Postal Services Act 2000 Sectionss 83 and 84
The Postal Services Act 2000 sections 83 and 84, see Stones 8 - 24243 and 8 - 24244, create offences of interfering with mail. Section 83 is aimed at persons engaged in the business of a postal operator and creates an either way offence. Section 84 covers anybody and creates a summary only imprisonable offence. Both sections cover intentional delaying or opening of a postal packet and intentional opening of a mail bag.
Prohibition on sending certain articles by post
The Postal Services Act 2000 section 85, see Stones 8 - 24245, prohibits the sending by post of certain articles. Subsections (1), (3), and (5) cover different situations. The section is likely to be most commonly used in relation to indecent or obscene articles. Obscenity is an objective test: see Kosmos Publications v DPP [1975] Crim LR 345.
Obstruction of business of universal service provider
The Postal Services Act 2000 section 88, see Stones 8 - 24248, creates offences of obstruction and failure to leave premises.
Useful references
Stones 8 - 30107
Archbold 21 - 164 et seq
Stones 8-30107A
Stones 8 - 30107A
Stones 8 - 30107B
Public Order Offences, elsewhere in this guidance
see Stones 8- 30107C
Stones 8 - 30107D
Stones 8-30107E
Stones 8 - 30106Y
Stones 8 - 30106Z
Stones 8-30107G
Stones 8 - 30107Q
Stones 8 - 30106E
Stones 8 - 5834
http://www.legislation.hmso.gov.uk/acts/
stones 8 - 30108S
Stones 8 - 30105Z
Paul -v- Ministry of Posts and Telecommunications [1973] Crim LR 322
Stones 8 - 24212
Stones 8 - 30108Z
Stones 8 - 30109
Telephone Intercepts, elsewhere in this guidance
Stones 8 - 20830
Stones 8 - 24243 and 8 - 24244
Stones 8 - 24245
Kosmos Publications v DPP [1975] Crim LR 345
Stones 8 - 24248