Social Media and other Electronic Communications

• Introduction
• Referral of Cases Criteria
• Special Jurisdiction of the Chief Magistrate
• Substantive Offences
• Communications Offences
  • Selection of Charges
  • Evidential Stage of the Code for Crown Prosecutors
  • S.127 CA 2003 – Actus Reus
  • S.127 CA 2003 – Mens Rea
  • S.1 MCA 1988 – Actus Reus
  • S.1 MCA 1988 – Mens Rea
  • Art. 10 ECHR – Right to freedom of expression
  • S.127(5) CA 2003 – Time Limit
  • Public Interest Stage of the Code for Crown Prosecutors
• Evidence of Victims
• Violence against Women and Girls (VAWG)
  • Cyber-enabled VAWG Offences
  • Social Media VAWG Offences
  • Non-social Media VAWG Offences
  • Flagging - Domestic Abuse
• Hate Crime Offences involving electronic communications
  • Sentencing Uplift
  • Flagging - Hate Crime
• Ancillary Orders
• Victim Personal Statements
• Community Impact Statements
• Reporting and Preventing Abuse on Social Media
• Jurisdiction - General Consideration

Introduction

The purpose of this guidance is to assist prosecutors in reviewing and preparing cases involving electronic communications. These cases often involve communications exchanged via social media, but prosecutors should bear in mind that this guidance applies to other forms of electronic communication, for example internet blogs, emails & text messages.

"Social media" commonly refers to the use of electronic devices to create, share or exchange information, ideas, images and videos with others via virtual communities and networks.

Electronic communications sent via social media may involve the commission of a range of offences, including: offences against the person, public justice, sexual or public order offences, and Harassment, Stalking, and Controlling & Coercive Behaviour.

Electronic communications, including those sent via social media,may also involve the commission of specific communications offences ("the communications offences") contrary to section 1 Malicious Communications Act 1988 ("s.1 MCA 1988") and / or section 127 Communications Act 2003 ("s.127 CA 2003").

When considering individual communications, prosecutors should take care to consider the overall nature and seriousness of the alleged offending behaviour. Charge selection (see below) should reflect the overall nature and period of the offending behaviour, and provide the Court with appropriate sentencing powers.

Referral of Cases Criteria

The following cases under section 1 Malicious Communications Act 1988 and section 127 Communications Act 2003 must be referred to the Chief Crown Prosecutor (CCP) or Head of Division (HoD) for approval:

1. Any communications offence directed towards a Member of Parliament or other person of public prominence
   
   Where a prosecutor proposes:
   • at pre-charge stage to charge, or to take no further action ('NFA'); or
   • at post-charge stage to add any new communications offence, or to stop the prosecution of
   
   any communications offence directed towards a Member of Parliament or other person of public prominence.
   
   A person of public prominence is someone that is likely to attract national media attention, for example members of the Royal Family, high profile celebrities or professional athletes.
2. Grossly offensive communications, not directed towards a Member of Parliament or other person of public prominence
   
   Where a prosecutor proposes:
   • at pre-charge stage to charge; or
   • at post-charge stage to add
   
   an offence of sending a grossly offensive communication, contrary to section 1(1)(a)(i) or 1(1)(b) of the Malicious Communications Act 1988 or section 127(1)(a) or 127(1)(b) of the Communications Act 2003.
   
   For cases under (2) above, CCP or HoD approval is not required for a decision: to take no further action or to stop a prosecution involving a grossly offensive communication; or, to amend a communications offence (e.g. from grossly offensive to menacing). CCP or HoD authority is also not required for a decision to charge/NFA/stop a prosecution for a communications offence involving an indecent, obscene, menacing or threatening message.
3. Any communications offence falling into (1) or (2) above, where the charging decision was made by CPSD or by the police.

Referral to the CCP or HoD should take place in advance of the first Court hearing for all bail cases. If that is not practicable for overnight remand cases, referral to an SDCP or DCP should take place before the first Court hearing.

If the case does not fall within the above criteria, but where other charges are being considered prosecutors should consult the Referral of Cases legal guidance to ensure no other referral criteria applies.

Special Jurisdiction of the Chief Magistrate

Prosecutors should consider whether any offences involving social media (or other electronic communications) fall within the Special Jurisdiction of the Chief Magistrate. The categories are listed in the Criminal Practice Direction XIII 2015 (as amended) under the heading of "General and Listing Practice Directions" – see Paragraph 5 of Annex 1 to the Criminal Practice Directions XIII: Listing.

In particular, cases involving persons of public prominence may fall into the category of "Cases of unusual sensitivity". Offences committed by police staff may fall within the category of "Police officers charged with serious offences".

The Court may be notified of relevant cases (or consulted for their views) using the following email address: gl-cmo.ddjdeployment@hmcts.gsi.gov.uk.

Relevant cases must be heard by the Senior District Judge (Chief Magistrate) or by another authorised District Judge.

Substantive Offences

Where social media is used to facilitate a substantive offence, prosecutors should proceed under the substantive offence in question, having regard as appropriate to the Hate Crime and VAWG sections below.

The following is a non-exhaustive list of potential offences with links to the relevant guidance, which prosecutors may consider:

• Making a threat to kill, contrary to section 16 Offences Against the Person Act 1861
• Making a threat to commit criminal damage, contrary to section 2 Criminal Damage Act 1971
• Harassment or stalking, contrary to sections 2, 2A, 4 or 4A Protection from Harassment Act 1997
• Controlling or coercive behaviour, contrary to section 76 Serious Crime Act 2015
• Blackmail, contrary to section 21 Theft Act 1968
• Juror misconduct, contrary to sections 20A-G Juries Act 1974*
• Contempt of court, contrary to the Contempt of Court Act 1981*
• Publishing material which may lead to the identification of a complainant of a sexual offence, contrary to section 5 Sexual Offences (Amendment) Act 1992*
• Intimidating a witness or juror, contrary to section 51 Criminal Justice and Public Order Act 1994
• Breach of automatic or discretionary reporting restrictions, contrary to section 49 Children and Young Persons Act 1933 and section 45 Youth Justice and Criminal Evidence Act 1999
• Breach of a restraining order, contrary to section 5 Protection from Harassment Act 1997
• Disclosing private sexual images without consent ("revenge pornography"), contrary to section 33 Criminal Justice and Courts Act 2015; also, (from 29 June 2021) Threatening to disclose private sexual images without consent
• Causing sexual activity without consent, or causing or inciting a child to engage in sexual activity, or sexual communication with a child, contrary to sections 4, 8, 13, 15A Sexual Offences Act 2003
• Taking, distribution, possessing or publishing indecent photographs of a child, contrary to section 1 Protection of Children Act 1978

*Note that these offences should be referred to the DLS Team prior to any other submission (see the Referral of Cases Criteria guidance above). These offences also require Attorney General's consent and prosecutors should consider the Consents to Prosecute legal guidance.

Allegations contrary to Part III Public Order Act 1986 should be referred to Special Crime and Counter Terrorism Division (prosecutors should consult the Referral of Cases legal guidance).

The act of setting up a false social networking account or website, or the creation of a false or offensive profile or alias could amount to a criminal offence, depending on the circumstances. For example:

• The former estranged partner of a victim creates a profile of the victim on a Facebook page, to attack the character of the victim, and the profile includes material that is grossly offensive, false, menacing or obscene.
• A "photoshopped" (digitally edited) image of a person is created and posted on a social media platform. Although many photoshopped images are humorous and inoffensive, others are disturbing or sinister, such as the merging of a person's face with the nude body of another to create obscene images, which may be accompanied by offensive comment.

Depending on the circumstances, this may be a way in which one of the offences above are committed, or it may be a way in which a communications offence (as these include "false" communications or messages) is committed.

Those who encourage communications offences, for instance by way of a coordinated attack on ahttps://www.legislation.gov.uk/ukpga/1988/27/section/1 person, may be liable to prosecution under the provisions of sections 44 to 46 Serious Crime Act 2007.

Communications Offences

Where social media is not being used to commit another substantive offence, prosecutors may turn to consider the communications offences available.

Selection of Charges

Prosecutors must consider what needs to be proved when determining whether to charge an offence under section 1 MCA 1988 or section 127 CA 2003 or the CJA 1988. Section 1 MCA 1988 is an either-way offence. Upon conviction on indictment a defendant may face a maximum sentence of 2 years' imprisonment and/or an unlimited fine. Section 127 CA 2003 is a summary only offence, but is not subject to the usual six month statutory time limit (see below regarding s.127(5)).

In the case of communications which are not sent via a public electronic communications network (whether other electronic communications, letters, or other articles), section 1 MCA will be the only available offence.

For all allegations concerning a public electronic communications network, the starting point should be section 127 CA 2003. It will often (but not always) be the case that section 127 CA 2003 will meet the requirements of section 6 of the Code for Crown Prosecutors (selection of appropriate charges). Absent the need to provide to the court greater powers of sentence, it is likely to be the appropriate charge for public electronic communications network offences.

Evidential Stage of the Code for Crown Prosecutors

The prosecutor's charging decision should articulate the rationale for the selection of charges and should address any interference with the suspect's ECHR rights, for example right to freedom of expression (see below under Article 10 ECHR).

S.127 CA 2003 – Actus Reus

Prosecutors should note that an offence under s.127 CA 2003 may be committed in a number of different ways:

• s.127(1) – an offender sends, or causes to be sent, via a public communications network a communication that is either grossly offensive, or of an indecent, obscene or menacing character;
• s.127(2) – for the purpose of causing annoyance, inconvenience or anxiety to another, an offender:
  1. sends, or b. causes to be sent, a communication that the offender knows to be false; or
  3. persistently makes use of a public electronic communications network

(a) How a communication is sent

S.127 CA 2003 – addresses only communications which are sent via a 'public electronic communications network', which was defined in the case of Director of Public Prosecution v Collins [2006] 1 WLR 2223 as "a service provided for and funded by the public, for the benefit of the public". That approach was endorsed in Chambers v DPP [2012] EWHC 2157. It encompasses the internet and mobile phone networks widely available to the public, and social media platforms which operate via the internet, e.g. WhatsApp (see DPP v Bussetti [2021] EWHC 2140 (Admin)).

(b) Who a communication is sent to

S.127 CA 2003 – it is not necessary to show the message was addressed to, or received by, another person. The actus reus of the offence is complete when the message is sent – see DPP v Collins [2006] UKHL 40, and DPP v Kingsley Smith [2017] EWHC 359 (Admin). This will cover the posting of a message, and indeed re-posting or other sharing of a communication.

In Chambers v DPP [2012] EWHC 2157, the defendant posted a message on Twitter suggesting he would blow up Teesside Airport. That was held to constitute a message sent under section 127(1)(a), even if that message may not have been accessed immediately but by a subsequent search. The Court noted that posting a message generally to Twitter, not for the attention of a specific individual or group, which was then stored electronically, was still an offence.

In R (on the application of Alison Chabloz) v Crown Prosecution Service [2020] 1 Cr. App. R. 17, the defendant (who had an internet blog) posted hyperlinks to YouTube where she had uploaded videos of herself singing grossly offensive anti-Semitic songs. Her convictions for offences under s.127(1)(a) and (1)(b) were upheld by the Court of Appeal, which noted - "The purpose of s.127(1) was to prohibit the use of a public electronic communications network to contravene basic standards of public decency. The offence did not depend on the message being received, but was complete when it was sent, DPP v Collins [2006] UKHL 40 followed. The potential recipients of a message posted on the internet were members of the public. It was immaterial that an accused might have intended only that a message should be read by a limited class of people."

(c) Grossly Offensive, Indecent or Obscene communications

S.127 CA 2003 and s.1 MCA 1988 each encompass communications which are 'grossly offensive' or 'indecent', which are ordinary English words: see Connolly v DPP [2007] 2 ALL ER 1012.

Additionally, s.127 CA 2003 also encompasses 'obscene' communications. 'Obscene' also has an ordinary meaning - see R v Anderson [1972] 1 QB 304, in which the Court of Appeal (with reference to other legislation) noted 'obscene' means 'shocking, lewd and indecent'.

There is no statutory definition of what constitutes a 'grossly offensive' communication. Each case must be assessed on its merits, considering the content of the communication and the context in which it was sent. Prosecutors must also consider whether the communication(s) cross the threshold at which interference with the Art. 10 ECHR right to freedom of expression is necessary and proportionate – see below re. Art 10 ECHR.

In the leading case of Director of Public Prosecution v Collins [2006] 1 WLR 2223, the defendant made racially offensive telephone calls to the offices of his Member of Parliament and left racially offensive telephone messages. The High Court (at para 9 of the Judgement) held that it was for the justices at first instance to "determine as a question of fact whether a message is grossly offensive, that in making this determination the Justices must apply the standards of an open and just multi-racial society, and that the words must be judged taking account of their context and all relevant circumstances… The test is whether a message is couched in terms liable to cause gross offence to those to whom it relates" – i.e. whether reasonable members of the public would find the message grossly offensive (not just the recipients/intended recipients).

In the recent case of DPP v Bussetti [2021] EWHC 2140 (Admin), the Divisional Court held that, in order to cross the threshold for this offence, the message must have been "not simply offensive but grossly offensive. The fact that the message was in bad taste, even shockingly bad taste, was not enough".

(d) Menacing communications

Menacing means creating a sense of apprehension or fear: see Chambers v DPP [2012] EWHC 2157.

(e) False messages

Under s.127(2)(a)-(b) CA 2003, it is an offence to send, or cause to be sent, via a public communications network, a message which the defendant knows to be false.

(f) Persistently using a public communications network for the purpose of causing annoyance, inconvenience or needless anxiety to another (s.127(2)(c) CA 2003)

Under s.127(2)(c) CA 2003, a person may be guilty of an offence by persistently making use of a public communications network for the purpose of causing annoyance, inconvenience or needless anxiety to another person.

In the case of Scottow v CPS [2020] EWHC 3421 (Admin), the Divisional Court considered the scope of the offence under s.127(2(c) CA 2003. In Scottow, the defendant posted a total of 16 messages on Twitter and Mumsnet during 2018-2019 about the complainant, a transgender woman who had a public profile as an activist and advocate on transgender rights. The issue was whether the defendant had 'persistently' sent messages with the required purpose.

The Court noted (at para 32 of the Judgement) that "the mischief at which the offence now contained in s. 127(2)(c) was aimed is not the communication of information or ideas that offend the recipient, or even the communication of messages that have offence as a purpose. Its object was to prohibit the abuse of the facilities afforded by a publicly funded network by repeatedly exploiting those facilities to communicate with another for no other purpose than to annoy them, or cause them inconvenience, or needless anxiety. The focus is not on the content of any communication, but rather its purpose and the way in which that purpose is put into effect. I have no doubt that repeated instances of prank calls, silent calls, heavy breathing, and other common forms of nuisance phone call, containing no meaningful content, would fall within the scope of s. 127(2)(c). I do not mean to suggest these examples are exhaustive, but they do indicate the kinds of behaviour that I consider the legislature intended to prohibit by enacting this offence. I am not persuaded that content will always be irrelevant, but... what Parliament intended was to proscribe a course of persistent conduct the sole purpose of which is to cause annoyance, anxiety or inconvenience by virtue of its persistence, rather than its informational content."

S.127 CA 2003 – Mens Rea

S.127(1) – grossly offensive communications

The correct approach was confirmed in DPP v Kingsley Smith [2017] EWHC 359 (Admin). In that case, the Divisional Court noted (at paragraph 28(7)(i) of the Court’s judgement) that the mens rea for a grossly offensive communication contrary to s.127(1) is that:

"the [offender] intended his message be grossly offensive to those to whom it related; or that he was aware at the time of sending that it might be taken to be so by a reasonable member of the public who read or saw it".

That approach was cited with approval by the Divisional Court in DPP v Bussetti [2021] EWHC 2140 (Admin). While attending a bonfire night party in November 2018, the defendant used his mobile phone to record a video which showed the burning of a cardboard effigy of Grenfell tower, in which 72 people tragically lost their lives due to a fire in 2017. He sent the video to two WhatsApp groups with limited membership, and the video was later shared on social media. The Divisional Court held "For the offence s.127(1)(a) to have been committed the sender must have intended or been aware that the message was not simply offensive but grossly offensive. The fact that the message was in bad taste, even shockingly bad taste, was not enough."

S.127(1) CA 2003 – 'menacing' communications

The sender must have intended the message to be of a menacing character or, alternatively, at the time of sending the message the sender must have been aware of a risk that it may create fear or apprehension in any reasonable member of the public who reads or sees it – Chambers v DPP [2012] EWHC 2157, approved in DPP v Kingsley Smith [2017] EWHC 359 (Admin).

S.127(1) CA 2003 – 'obscene' or 'indecent' communications

Whilst there does not appear to be any specific case law on the point, prosecutors are advised to approach the issue of mens rea for obscene or indecent communications on the same basis as set out in DPP v Kingsley Smith [2017] EWHC 359 (Admin) – namely, the sender must have intended the message to be of an obscene or indecent character or, alternatively, at the time of sending the message the sender must have been aware of a risk that it may be taken to be so by any reasonable member of the public who read or saw it.

S.127(2) CA 2003 – sending false messages, or persistently making use of a public communications network

For all offences under s.127(2) CA 2003, it must be established that the defendant's purpose was to cause annoyance, anxiety or needless anxiety to another.

In relation to false messages, s.127(2)(a) and (b) CA 2003 require the prosecution to prove that the defendant sent a message which he knew was false.

S.1 MCA 1988 – Actus Reus

(a) How a communication is sent

S.1 MCA 1988 has wider application than s.127 CA 2003. It encompasses messages sent by means of letters, electronic communications, and any articles sent. As noted above, in the case of communications which are not sent via a public electronic communications network (whether other electronic communications, letters, or other articles), section 1 will be the only available offence.

(b) Who a communication is sent to

The prosecution must establish that the message was sent to another person. Depending on the facts of the case, a social media communication which is merely a blog or a comment posted on a website may not suffice as sending to another. Prosecutors should consider the evidence that the communication was addressed (either by name or in terms) to a specific recipient, and how likely the specific recipient was to receive it (did they also have a Twitter or Facebook account?).

(c) Grossly Offensive or Indecent communications

Please refer to section (c) above, under Actus Reus for s.127 CA 2003.

(d) False messages

Under s.1(i)(a)(iii) MCA 1988, it is an offence to send information which is false and which is known or believed to be false by the sender.

S.1 MCA 1988 – Mens Rea

For all offences under s.1 MCA 1988, the prosecution must establish that the sender's purpose, or one such purpose, is that the message should cause distress or anxiety to the recipient or to any other person to whom it is intended that the message or its contents or nature should be communicated. This is a higher standard than for section 127 CA 2003.

As regards messages which contain false information, s.1(1)(a)(iii) MCA 1988 requires proof that the sender knew or believed the information was false.

Art. 10 ECHR – Right to freedom of expression

Article 10 of the European Convention on Human Rights ('ECHR') expressly protects speech that offends, shocks and disturbs. "Freedom only to speak inoffensively is not worth having Redmond-Bate v DPP [2000] HRLR 249 [20] per Sedley LJ. Consequently, where Article 10 is engaged, the Court's assessment of whether the conduct crosses the boundary from the unattractive, even unreasonable, to oppressive and unacceptable must pay due regard to the importance of freedom of expression and the need for any restrictions upon the right to be necessary, proportionate and established convincingly.

Prosecutors should only proceed with cases under section 1 MCA 1988 or section 127 CA 2003 where the interference with freedom of expression, is necessary and is proportionate.

Each case must be decided on its own facts and merits and with particular regard to the context of the message concerned. Factors that may be relevant to consider are: who is the intended recipient; whether the message refers to their characteristics; whether the nature of the message can be understood with reference to a news or historical event; Whether terms are used which require interpretation, or explanation by the recipient; whether there was other concurrent messaging in similar terms so that the suspect knowingly contributed to a barrage of such messages.

Prosecutors should consider the following, non-exhaustive ECHR factors, and should only proceed if they are satisfied there is sufficient evidence that the communication in question is more than:

• Offensive, shocking or disturbing; or
• Satirical, iconoclastic or rude comment; or
• The expression of unpopular or unfashionable opinion about serious or trivial matters, or banter or humour, even if distasteful to some or painful to those subjected to it; or
• An uninhibited and ill thought-out contribution to a casual conversation where participants expect a certain amount of repartee or "give and take";
• This is with reference to "contemporary standards… the standards of an open and just multi-racial society", assessing whether the particular message in its particular context is beyond the pale of what is tolerable in society" adopting the observations, as guidance illuminating these terms, in DPP v Collins [2006] UKHL 40, Chambers, Smith v ADVFN [2008] 1797 (QB).

The CPS' policy is to prosecute hate crime fairly, firmly and robustly. Hate crimes often have a disproportionate impact on the victim because they are being targeted for a personal characteristic. Prosecutors should take into account any hate crime context as appropriate when assessing whether the high threshold is met. Prosecutors should refer to the Hate Crime legal guidance when considering these cases.

Article 10 of the European Convention on Human Rights provides the following in respect of freedom of expression:

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

However, Article 17 provides:

"Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention."

Therefore, every decision made in accordance with the Code for Crown Prosecutors in communications offences cases must be compliant with Article 10 (see section 6(1) Human Rights Act 1998) unless the prosecutor is wholly satisfied that Article 17 provides that Article 10 will not be engaged at all. Freedom of expression aimed at destroying or limiting, for instance, a person's right to a private and family life, or their peaceful enjoyment of property, or their enjoyment of rights in a way discriminatory of them compared to others, will not engage Article 10.

S.127(5) CA 2003 – Time Limit

Notwithstanding that section 127 is a summary offence, section 127(5) CA 2003 provides:

"An information or complaint relating to an offence under this section may be tried by a magistrates' court in England and Wales or Northern Ireland if it is laid or made —

1. before the end of the period of 3 years beginning with the day on which the offence was committed, and
2. before the end of the period of 6 months beginning with the day on which evidence comes to the knowledge of the prosecutor which the prosecutor considers sufficient to justify proceedings."

Subsection 7 provides that a certificate of a prosecutor as to the date on which evidence described in subsection (5)(b) or (6)(b) came to his or her knowledge is conclusive evidence of that fact. The effect of this is as follows:

• Careful consideration should be given to when evidence came to the knowledge of the prosecutor (for this definition, see below) sufficient to justify proceedings;
• This means evidence sufficient to satisfy the prosecutor that the Full Code Test is met;
• The certificate issued means no evidence will be heard on the issue and thus the prosecutor does not have to give evidence about their knowledge;
• This decision remains subject to public law principles i.e. it must remain an assessment of evidence which a reasonable prosecutor would be entitled to reach, and did reach.

A template which prosecutors may wish to use is available.

The court in R v Woodward [2017] EWHC 1008 (Admin) considered the principles concerning a time limit similar (but not identical) to that provided for by section 127(1). Woodward concerned section 31(1) of the Animal Welfare Act 2006 which uses the phrase "prosecutor thinks" rather than "prosecutor considers". This is unlikely to be a material difference.

The Court in Woodward held:

• A prosecutorial decision cannot be avoided or delayed by sitting on information.
• There is a distinction to be drawn between investigator and prosecutor. The latter "is the individual with responsibility for deciding whether a prosecution should go forward whose thoughts and beliefs are relevant."
• That person's decision is not whether there is a prima facie case, it is an evaluative assessment of whether it is correct to commence a prosecution.

The following is proposed when determining whether an offence is time-barred, assuming the decision to charge is within 3 years of the commission of the alleged offence.

The first question is "who is the individual with responsibility for deciding whether a prosecution should go forward?" The taking of a decision by the police to charge without reference to the CPS, or alternatively the submission by the police of a report seeking a charging decision, is likely to be strong evidence of who bears the responsibility. If neither have occurred support may come from the Director's Guidance on Charging. The police may charge summary only offences irrespective of plea, and either way offences where a guilty plea is anticipated, save for offences with a hate crime element. In those cases, absent indication to the contrary, the police should be treated as the decision-maker; otherwise the CPS should be treated as the decision-maker.

The second question is "at what point did this person consider they had sufficient evidence to justify proceedings?" It is important that prosecutors record in charging decisions, memos to the police, or otherwise, whether they have sufficient evidence or if not; what is required to reach this position (distinguishing between material essential and desirable in order to reach a decision); and by when. The decision is not a prima facie decision: it is a question of having sufficient evidence to make a decision in accordance with the Code for Crown Prosecutors.

Public Interest Stage of the Code for Crown Prosecutors

Prosecutors must be satisfied that a prosecution is required in the public interest and, where Article 10 ECHR is engaged, this means on the facts and merits of the particular case that it has been established that a prosecution is necessary and proportionate. Particular care must be taken where a criminal sanction is contemplated for the way in which a person has expressed themselves on social media.

Prosecutors therefore should, where relevant, have particular regard to:

• The likelihood of re-offending. The spectrum ranges from a suspect making a one-off remark to a suspect engaged in a sustained campaign against a victim;
• The suspect's age or maturity. This may be highly relevant where a young or immature person has not fully appreciated what they wrote;
• The circumstances of and the harm caused to the victim, including whether they were serving the public, whether this was part of a coordinated attack ("virtual mobbing"), whether they were targeted because they reported a separate criminal offence, whether they were contacted by a person convicted of a crime against them, their friends or family;
• Whether the suspect has expressed genuine remorse;
• Whether swift and effective action has been taken by the suspect and/or others for example, service providers, to remove the communication in question or otherwise block access to it;
• Whether the communication was or was not intended for a wide audience, or whether that was an obvious consequence of sending the communication; particularly where the intended audience did not include the victim or target of the communication in question;
• Whether the offence constitutes a hate crime (which may mean Article 10 is not engaged, but may also be a factor tending in favour of a prosecution in the public interest).

Evidence of Victims

If a case is charged, consideration should be given as to whether it is necessary to call the victim to give evidence in the prosecution. Whilst the s.1 MCA 1988 and s.127 CA 2003 offences do not strictly require proof of receipt of a message (merely that the message was sent), a victim's evidence about whether they were caused gross offence, or fear or apprehension will be a relevant consideration (potentially highly relevant, depending on the other evidence in the case) to whether the message had that quality. Prosecutors should have regard to the views of a victim and to the evidence they can give before deciding whether to require them to give evidence. If a victim is to give evidence, prosecutors should have regard to the availability of special measures in support of that evidence.

Whether or not a victim is to be required to give evidence, it is likely to be a reasonable line of enquiry to seek that evidence. A decision not to call a victim to give evidence should be reached having taken reasonable steps to obtain a victim statement or otherwise their account, and then considering it in the course of the decision-making above.

Violence against Women and Girls (VAWG)

Prosecutors should be familiar with the legal guidance on Violence against Women and apply the principles set out in the guidance in appropriate cases. For practical assistance in dealing with casework preparation and case presentation, reference should be made to the VAWG legal guidance.

Prosecutors are reminded of the potential use of social media to exert power and control in VAWG offences. For example, in cases of so-called 'honour' based violence and forced marriage, threats to post personal information on social media, in order to bring shame upon someone, can be used to silence and coerce a victim.

Cyber-enabled VAWG Offences

The landscape in which VAWG Crimes are perpetrated is changing. The use of the internet, social media platforms, emails, text messages, smartphone apps (for example, WhatsApp; Snapchat), spyware and GPS (Global Positioning System) tracking software to commit VAWG offences is rising. Online activity is used to humiliate, control and threaten victims, as well as to plan and orchestrate acts of violence.

Some of this activity is known as "cyberstalking". There is no legal definition of cyberstalking, nor is there any specific legislation to address the behaviour. Generally, cyberstalking is described as a threatening behaviour or unwanted advances directed at another, using forms of online communications. Cyberstalking and online harassment are often combined with other forms of 'traditional' stalking or harassment, such as being followed or receiving unsolicited phone calls or letters. Examples of cyberstalking may include:

• Threatening or obscene emails or text messages.
• Spamming, where the offender sends the victim multiple junk emails.
• Live chat harassment or 'flaming', a form of online verbal abuse.
• "Baiting" or humiliating peers online by labelling them as sexually promiscuous.
• Leaving improper messages on online forums or message boards.
• Unwanted indirect contact with a person that may be threatening or menacing such as posting images of that person's children or workplace on a social media site, without any reference to the person's name or account.
• Posting photoshopped images of persons on social media platforms (see section on False profiles for further details).
• Hacking into social media accounts and then monitoring and controlling the accounts.
• Sending electronic viruses.
• Sending unsolicited email.
• Cyber identity theft.

For further information Prosecutors should refer to the section on the impact and dynamics of domestic abuse in the Domestic Abuse legal guidance.

Whether any of these cyber activities amount to an offence will depend on the context and particular circumstances of the action in question and the offences available. The guidance on Stalking and Harassment, Controlling or Coercive Behaviour, and Disclosing private sexual images without consent may be relevant to cyberstalking.

Social Media VAWG Offences

Although many VAWG social media offences may be sufficiently serious to be prosecuted as a substantive offence, there may be some instances when a prosecution may be brought as a communications offence i.e. communications that are grossly offensive, indecent, obscene or false.

For instance, communications that contain images or videos of women with very serious injuries, or of women being raped, or of women being subjected to sadistic acts of violence, accompanied by text that suggests that such assaults / rape / acts are acceptable or desirable may well, depending on the context and circumstances, be considered grossly offensive.

Non-social Media VAWG Offences

Domestic abuse is likely to become increasingly frequent and more serious the longer it continues. Therefore, cases may involve evidence of social media offending, such as harassment, cyberstalking, or controlling or coercive behaviour through texts and emails, followed by an escalation to more serious non-social media offending, such as physical assaults. Prosecutors will need to assess whether it is appropriate to charge both types of offending, or whether the overall criminality is sufficiently addressed by charges reflecting only the more serious offending. Where only the more serious offending is charged, it may be possible to adduce in evidence the social media activity, such as controlling behaviour, as background context.

Flagging - Domestic Abuse

All domestic abuse cases should be identified on CMS and all cases should be flagged as "vulnerable / intimidated victim".

Hate Crime Offences involving electronic communications

The high threshold at the evidential stage and the public interest and ECHR considerations set out above apply to social media communications offence hate crime cases, as they do to other cases. However, as stated above in the section on "The Public Interest", prosecutors should also consider in particular paragraph 4.14(c) of the Code for Crown Prosecutors, which states that:

"It is more likely that prosecution is required if the offence was motivated by any form of prejudice against the victim's actual or presumed ethnic or national origin, gender, disability, age, religion or belief, sexual orientation or gender identity; or if the suspect targeted or exploited the victim, or demonstrated hostility towards the victim, based on any of those characteristics."

When assessing communications that appear to be motivated by such discrimination or demonstrate such hostility, prosecutors should be alert to any additional reference or context to the communication in question. Such references or context may sometimes elevate a communication that would otherwise not meet the high threshold to one that, in all the circumstances, can be considered grossly offensive. For instance, a reference within the communication to a recent tragic event, involving many deaths of persons who share any of the protected characteristics.

Hate crime messages may sometimes use language that prosecutors are not familiar with, but which may cause gross offence to those to whom it relates. Prosecutors should ensure that they fully understand the meaning and context of particular language or slurs used, so that they can properly assess the degree to which it may cause offence. To do so, further information may be sought from a complainant or from relevant community groups.

Both domestic and European case law have addressed the issue of Article 10 and racist / religious hate crime speech:

• DPP v Collins [2006] UKHL 40 confirmed that it is consistent with Article 10 to prosecute a person for using the telecommunications system to leave racist messages. Effect must be given to Article 17 of the convention, which prohibits the abuse of any Convention rights, as held in Norwood v the UK (2004) 40 EHRR SE 111.
• The European Commission has held that extreme racist speech is outside the protection of Article 10 because of its potential to undermine public order and the rights of the targeted minority: Kuhnen v Germany 56 RR 205.
• The ECHR has confirmed that Holocaust denial or revision is removed from the protection of Article 10 by Article 17: see Lehideux and Isorni v France [2000] 30 EHRR 665; and M'Bala M'Bala v France (application no. 25239/13), which ruled that a blatant display of hatred and anti-Semitism disguised as an artistic production (comic performance), even if satirical or provocative, was not protected by Article 10.

Sentencing Uplift

Section 66 Sentencing Act 2020 (which applies to all convictions on or after 1st December 2020) provides for an increased sentence for hate crime offending. The provisions apply to communications offences where the defendant demonstrates hostility to the victim based on the victim's protected characteristic (race, religion, disability, sexual orientation or transgender identity). See further the legal guidance on Prosecuting cases of Disability Hate Crime, Prosecuting cases of Homophobic, Bi-phobic and Transphobic Hate Crime, and Prosecuting cases of Racist and Religious Hate Crime.

Flagging - Hate Crime

Hate crime cases should be identified at an early stage and flagged on CMS. See the relevant Hate Crime legal guidance for the CPS definition of hate crimes, which are dependent on the perception or belief of the victim or another person. Where the definition is satisfied, offences should be flagged as hate crimes, regardless whether they are charged as such.

Ancillary Orders

Prosecutors must consider ancillary orders upon conviction (and in the case of restraining orders, upon acquittal) for substantive offences, in order to prevent re-offending by the most serious and persistent offenders. These may include:

• Criminal Behaviour Orders
• Restraining Orders
• Sentencing - Ancillary Orders (ref. Sexual Harm Prevention Orders)

The police should also be invited to consider Prevention Orders and Domestic Violence Protection Notices and Orders.

Case law relating to Sexual Harm Prevention Orders provides useful guidance on the key principles to consider when imposing requirements relating to internet use and access. In particular, terms which are necessary and proportionate should be carefully drafted. R v Smith and others [2011] EWCA Crim 1772, a case involving the predecessor to SHPOs and computer-based prohibitions, will assist prosecutors in their considerations. In R v Parsons and another [2017] EWCA Crim 2163, the Court of Appeal emphasised the need for the terms of any SHPO to be effective, clear, realistic, proportionate, and tailored to the facts. The Court in Parsons also addressed developments in technology, stating that changes in everyday living called for an adapted and targeted approach particularly in relation to risk management monitoring software, cloud storage and encryption software. Prohibitions have to be aimed at the deliberate installation of software other than that which is intrinsic to the operation of a device.

Victim Personal Statements

A Victim Personal Statement (VPS) gives victims an opportunity to describe the wider effects of the crime upon them, express their concerns and indicate whether or not they require any support. In social media cases, prosecutors should request a VPS if one has not already been made. Provisions relating to the making of a VPS and its use in criminal proceedings are set out in the Code of Practice for Victims of Crime (Victims' Code), and prosecutors should also refer to the legal guidance on Victim Personal Statements. Making a VPS is optional, and most VPS's will be in addition to the usual witness statement. A thorough VPS will assist the sentencing court to assess any harm that the offence has caused, including the effect of the offence on the victim, such as distress and anxiety.

Community Impact Statements

A Community Impact Statement (CIS) is a short document illustrating the concerns and priorities of a specific community over a set time period. The statement will illustrate the harm and impact on the community arising from particular types of offences or anti-social behaviour, or from a specific offence or incident. A community does not have to be determined by geographic areas. A community can be defined as a group of people who interact and share certain characteristics, experiences or backgrounds, and/or are located in proximity to each other. This includes people who share particular characteristics connected to their heritage, belief system or physical being that define their day-to-day lives; for example, ethnic groups, religious groups, people with disabilities, children, older people.

A CIS may be used by the CPS to inform charging decisions and by the courts to inform sentencing decisions. Note that one of the public interest factors to consider under paragraph 4.12(e) of the Code is the impact of the offending on the community. Prosecutors should be alert to check with the police whether there is a CIS available in cases in which a CIS may be relevant. For further information refer to the legal guidance on Community Impact Statements.

Reporting and Preventing Abuse on Social Media

Persons who are subject to abuse on social media may wish to report the abuse to the police and / or to the social media platform.

A number of platforms have developed tools to make reporting easier, to secure potential evidence and to prevent unwanted communications, including those that do not amount to a criminal offence. These include:

• A report link, so that particular or multiple communications can be reported directly to the platform. Social media sites may then decide to remove content and disable or suspend accounts, although it is not technically possible for a platform to guarantee a user will not return once their account is closed. Note that if a matter is reported to the police, the police should make a data retention request to the platform, so that evidence is secured for any investigation.
• Taking screenshots of the offending material, which can be saved on or off (for example, cloud storage or a USB drive) the device.
• Tools to block or mute the person who has uploaded abusive content, so that they can no longer see posts or have a conversation with the victim.
• Tools to unsubscribe or "un-follow" accounts that produce or share offensive material.
• Login alerts, which prompt the platform provider to send a notification if someone tries to log into an account from a new place.
• Privacy settings, to control who can see posts and information from profiles, such as phone numbers and email address.
• Further cyber security advice can be found on the Government's website Cyber Streetwise, and on the Government supported website Get Safe Online.

Jurisdiction - General Considerations

The general rule is that an offence will only be triable in the jurisdiction in which the offence takes place, unless there is a specific provision to ground jurisdiction, for instance where specific statutes enable the UK to exercise extra-territorial jurisdiction. For more detail on jurisdictional issues, see the legal guidance on Jurisdiction.

In cross-border cases involving England and Wales and other jurisdictions (including non-EU countries), an offence must have a "substantial connection with this jurisdiction" for courts in England and Wales to have jurisdiction. It follows that, where a substantial number of the activities constituting a crime takes place within England and Wales, the courts of England and Wales have jurisdiction unless it can be argued, on a reasonable view, that the conduct ought to be dealt with by the courts of another country. See R v Smith (Wallace Duncan) (No.4) [2004] EWCA Crim 631.

There are a number of authorities on websites hosted in other jurisdictions:

• R v Waddon, unreported, 6 April 2000, a case relating to the publication of an obscene article, the Court of Appeal held that the content of American websites could come under the jurisdiction of England and Wales when downloaded there: images published on a website abroad were further published when downloaded in England and Wales.
• R v Perrin [2002] EWCA Crim 747: In assessing whether the publication by an American company of a web page breached the Obscene Publications Act 1959 s.2(1), it was not necessary for the court to show that the major steps in relation to publication took place within this jurisdiction.
• R v Sheppard [2010] EWCA Crim 65: where an offender had produced racially inflammatory material and posted it on a website hosted by a remote server in the United States, he could be tried in England and Wales because a substantial measure of his activities had taken place there, as required by the test laid down in R v Smith (Wallace Duncan).