Communications Offences

Legal Guidance, Cyber / online crime

General Charging Practice

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 guidance.

Many of the offences dealt with below can be charged either under the relevant communications legislation or general legislation such as the Fraud Act.

As a general practice you should use the relevant communications charge specifically designed to cover the conduct in question.

Dishonestly Obtaining Electronic Communications Services

Dishonestly obtaining electronic communications services -
Communications Act 2003, section 125

An offence under the Communications Act 2003 section 125, see Stones 8.30110, applies to a person who has obtained the benefit of a telephone or obtained access to the internet when there was no intention to pay for that service. It will invariably be preferable to charge this offence rather than one of dishonest abstraction of electricity. The section125 charge may be more appropriate than one of obtaining services dishonestly contrary to section 11 Fraud Act 2006; or a section 1 Computer Misuse Act 1990 unauthorised access offence.

Section 125 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 apparatus etc. for contravening -
Communications Act 2003, section 126

Section 126 Communications Act, 2003, see Stones 8.30110A, provides for two offences of possession or supply of anything intended for use in connection with a section125 offence.

The section 125 and section 126 offences are triable 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.

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. In some circumstances consider charging section 125 or 126 Communications Act, 2003, see Stones 8.30110A.

Mobile phone reprogramming

Section 1 of the Mobile Telephones (Re-Programming) Act 2002 (see Stones 8.30109W) makes it an offence if a person:

  • Changes a unique device identifier (i.e. a SIM card);
  • Interferes with a unique device identifier's operation;
  • Offers or agrees to re-programme a mobile telephone; or
  • Offers or agrees for another person 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.

Section 2 of the Act creates offences of possession or supply of anything which may be used for the section 1 offences.

The offences are triable 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.

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.

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.

Unlawful Interception, Disclosure and Interference Offences

Interception and disclosure of messages - Wireless Telegraphy Act 2006, section 48

The Wireless Telegraphy Act 2006 section 48 makes it a summary offence for a person to use wireless telegraphy apparatus with intent to obtain or disclose information as to the contents of a message without authorization. See Stones 8.30112P.

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.

Unlawful interception of communications

The Regulation of Investigatory Powers Act 2000 section 1, see Stones 8.30108Z, [Archbold 25-368, 369] creates two 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. The maximum penalty on conviction on indictment is imprisonment for a term not exceeding two years or a fine. See also section 2, Stones 8.30109, and subsequent sections.

Interference with mail - Postal Services Act 2000, sections 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 any person 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.

Improper use of postal and electronic communications

Improper use of public electronic communications network - Communications Act 2003, section 127

The Communications Act 2003 section 127, see Stones 8.30110B, covers the sending of improper messages. Section 127(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 and emails. Section 127(2) targets false messages and persistent misuse intended to cause annoyance, inconvenience or needless anxiety; it includes 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 when the sending takes place. The test for "grossly offensive" was stated by the House of Lords in DPP v Collins [2006] 1 WLR 2223 to be whether the message would cause gross offence to those to whom it relates (in that case ethnic minorities), who need not be the recipients. The case also said that it is justifiable under ECHR Art 10(2) to prosecute somebody who has used the public telecommunications system to leave racist messages.

A person guilty of an offence under section 127 CA 2003 shall be liable, on summary conviction, to imprisonment for a term not exceeding six months or to a fine or to both. This offence is part of the fixed penalty scheme.

It is more appropriate to charge bomb hoaxes under section 51 of the Criminal Law Act 1977. See Chambers v DPP [2012] EWHC 2157 (Admin) , and Public Order Offences, elsewhere in the Legal Guidance.

Section 127 can be used as an alternative offence to such crimes for example as hate crime (including race, religion, disability, homophobic, sexual orientation, and transphobic crime), hacking offences, cyber bullying, cyber stalking, amongst others.

Threatening letters or other articles - Section 1 Malicious Communications Act, 1988

The Malicious Communications Act 1988 section 1, see Stones 8.20830, deals with the sending to another of any article which is indecent or grossly offensive, or which conveys a threat, or which is false, provided there is an intent to cause distress or anxiety to the recipient. 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 may justify a more serious charge, e.g. threats to kill.

The offence is one of sending, delivering or transmitting, so there is no requirement for the article to reach the intended recipient.

The terms of section 1 were considered in Connolly v DPP [2007] 2 All ER 1012, and "indecent or grossly offensive" were said to be ordinary English words. The fact that there was a political or educational motive behind the accused sending graphic photographs of aborted foetuses did not help her, and her argument that her behaviour was protected by Articles 9 and 10 ECHR (freedom of religion and speech) did not succeed, because the restrictions on those rights were justified under Articles 9(2) and 10(2).

Section 32 of the Criminal Justice and Courts Act 2015 amended section 1 making the offence an either-way offence and increased the maximum penalty to 2 years' imprisonment for offences committed on or after 13 April 2015. This amendment allowed more time for investigation, and a more serious penalty available in appropriate cases.

Prohibition on sending indecent or obscene articles by post

The Postal Services Act 2000 section 85, see Stones 8.24245, prohibits the sending by post of indecent or obscene articles. Obscenity is an objective test, regardless of the addressees: see Kosmos Publications v DPP [1975] Crim LR 345. The offence is triable either way with a maximum penalty of 12 months on indictment.

See Obscene Publications and Indecent Images of Children, elsewhere in the Legal Guidance.

Further reading