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Offences Involving Communications 

Offences Involving Communications
Chapter:
Offences Involving Communications
Author(s):

Glenn Hutton

, Gavin McKinnon

, and Paul Connor

DOI:
10.1093/law/9780198829836.003.0008
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Subscriber: null; date: 21 March 2019

4.8.1 Introduction

The continual and substantial terrorist threat posed to society makes the offences contained in this chapter exceptionally relevant to day-to-day policing. This chapter details specific offences that deal with the making of general threats and other communications which are intended to cause alarm or anxiety among people receiving them. Such offences are frequently carried out using platforms such as Facebook and Twitter to send malicious messages or make threats, such as in the case of Chambers v DPP [2012] EWHC 2157 (Admin) which examined a message interpreted as a bomb hoax at an airport.

4.8.2 Placing or Sending Material

Offence Anti-terrorism, Crime and Security Act 2001, s. 114

  • Triable either way

  • Seven years’ imprisonment on indictment

  • Six months’ imprisonment and/or a fine summarily

The Anti-terrorism, Crime and Security Act 2001, s. 114 states:

  1. (1) A person is guilty of an offence if he—

    1. (a) places any substance or other thing in any place; or

    2. (b) sends any substance or other thing from one place to another (by post, rail or any other means whatever);

      with the intention of inducing in a person anywhere in the world a belief that it is likely to be (or contain) a noxious substance or other noxious thing and thereby endanger human life or create a serious risk to human health.

Offence Criminal Law Act 1977, s. 51(1)

  • Triable either way

  • Seven years’ imprisonment on indictment

  • Six months’ imprisonment and/or a fine summarily

The Criminal Law Act 1977, s. 51 states:

  1. (1) A person who—

    1. (a) places any article in any place whatever; or

    2. (b) dispatches any article by post, rail or any other means whatever of sending things from one place to another,

      with the intention (in either case) of inducing in some other person a belief that it is likely to explode or ignite and thereby cause personal injury or damage to property is guilty of an offence.

In this subsection ‘article’ includes substance.

Keynote

These definitions are very wide. The Criminal Law Act 1977 offence relates specifically to bomb threats while the 2001 offence (which is modelled on the earlier offence) relates to ‘substances’ (which includes any biological agent and any other natural or artificial substance whatever its form, origin or method of production (s. 115(1))).

The offence under the Anti-terrorism, Crime and Security Act 2001 was intended to ‘plug the gap’ left by the Criminal Law Act 1977 insofar as ‘substances’ were not catered for in the 1977 Act. Section 114 is far broader: a person is guilty of an offence if he communicates any information which he knows or believes to be false with the intention of inducing in a person anywhere in the world a belief that a noxious substance is likely to be present (whether at the time the information is communicated or later) in any place and thereby endanger human life or create a serious risk to human health. While this is not specifically stated in the 1977 Act, it would therefore appear that the offence under s. 51(1) would take the same approach.

The ‘article’ concerned in s. 51(1) can also be anything at all.

It is the inducing of a relevant belief in someone else that is the key element to the first offence, not any actual endangering of life or risk to human health. You do not have to show that the defendant had any particular person in mind in whom he/she intended to induce the belief in question (Anti-terrorism, Crime and Security Act 2001, s. 115(2) and Criminal Law Act 1977, s. 51(3)).

The Home Office guidance to the Anti-terrorism, Crime and Security Act 2001 offence gives examples of acts which, though at one time would not have been seen as threatening, would now amount to an offence under this section, for example, scattering white powder in a public place or spraying water droplets around in an underground train, in each case with the requisite intent.

4.8.3 Threats and Communication of False Information

Offence Criminal Law Act 1977, s. 51(2)

  • Triable either way

  • Seven years’ imprisonment on indictment

  • Six months’ imprisonment and/or a fine summarily

The Criminal Law Act 1977, s. 51 states:

  1. (2) A person who communicates any information which he knows or believes to be false to another person with the intention of inducing in him or any other person a false belief that a bomb or other thing liable to explode or ignite is present in any place or location whatever is guilty of an offence.

Offence Anti-terrorism, Crime and Security Act 2001, s. 114

  • Triable either way

  • Seven years’ imprisonment on indictment

  • Six months’ imprisonment and/or a fine summarily

The Anti-terrorism, Crime and Security Act 2001, s. 114 states:

  1. (2) A person is guilty of an offence if he communicates any information which he knows or believes to be false with the intention of inducing in a person anywhere in the world a belief that a noxious substance or other noxious thing is likely to be present (whether at the time the information is communicated or later) in any place and thereby endanger human life or create a serious risk to human health.

Keynote

The essence of these offences is the communication of information which the defendant knows or believes to be false. Again, the 1977 Act offence relates specifically to bomb hoaxes while the 2001 Act offence relates to ‘substances’.

The meaning of ‘substance’ for the 2001 Act offence is the same as in para. 4.8.2, Keynote and in neither case is there a need to show that the defendant had any particular person in mind.

Under the Criminal Law Act 1977 it has been held that while the information communicated need not be specific, a message saying that there is a bomb somewhere has been held to be enough, even though no location was given (R v Webb (1995) 92(27) LSG 31).

The wording of the 1977 Act offence is in the present tense which suggests that a message threatening to place a bomb etc. sometime in the future would not suffice, while the 2001 Act specifically allows for such a situation.

The use of some form of code word is not a prerequisite of the offence but it does go towards proving the defendant’s intention that the threat etc. be taken seriously; it may also be taken into account when passing sentence.

The ‘communication’ can be in any form (including the Internet) and can be direct (e.g. to a railway station or department store where the bomb or device is alleged to be) or indirect (e.g. to a radio station switchboard).

There is no need for the person making the communication to have any particular person in mind at the time (s. 51(3)).

4.8.4 Misuse and Obstruction of Postal Services

Offence Postal Services Act 2000, s. 84

  • Triable summarily

  • Six months’ imprisonment and/or a fine

The Postal Services Act 2000, s. 84 states:

  1. (1) A person commits an offence if, without reasonable excuse, he—

    1. (a) intentionally delays or opens a postal packet in the course of its transmission by post, or

    2. (b) intentionally opens a mail-bag

  2. (2) . . .

  3. (3) A person commits an offence if, intending to act to a person’s detriment and without reasonable excuse, he opens a postal packet which he knows or reasonably suspects has been incorrectly delivered to him.

Keynote

The Postal Services Act 2000 creates two offences in relation to interfering with the mail, along with a further offence of opening someone else’s mail that has been incorrectly delivered.

The first general offence, under s. 84(1), applies to anyone. You must show that the defendant acted without any reasonable excuse and that he/she also acted intentionally. The offence does not apply where the actions were carried out under a lawful warrant or statutory provision (e.g. the Regulation of Investigatory Powers Act 2000). Similarly, any action carried out in accordance with the terms and conditions of postage will not attract criminal liability here. Delays (but not the opening of mail) caused by industrial action also fall outside this offence.

The offence under s. 84(3) requires proof of a number of elements. First, it must be shown that the defendant opened a postal packet (as opposed to delaying it under s. 84(1)). It must also be shown that he/she did so intending ‘to act to another person’s detriment’; this can be any other person’s detriment, not simply the addressee, but it is nevertheless a key feature of the offence. It must also be shown that the defendant knew or reasonably suspected that the postal packet had been incorrectly delivered to him/her. This means that the packet must have been ‘delivered’; it would be difficult to show that someone reasonably suspected a packet that is still in transit to have been ‘incorrectly delivered’ to him/her. As with the general offence under s. 84(1), any opening of postal packets that is done properly in pursuance of a warrant, statutory authority or under the conditions of postage will not be an offence under s. 84(3).

There is a second offence (under s. 83) which specifically applies to postal workers and which is triable either way, carrying a maximum of two years’ imprisonment. Under the second, more specific, offence, you have to prove the same elements as the offence under s. 84(1) but also need to show that the person was engaged in the business of a postal operator and that he/she was acting contrary to his/her duty.

4.8.4.1 Sending Prohibited Article by Post

Offence Postal Services Act 2000, s. 85

  • Triable either way

  • 12 months’ imprisonment on indictment

  • Fine summarily

The Postal Services Act 2000, s. 85 states:

  1. (1) A person commits an offence if he sends by post a postal packet which encloses any creature, article or thing of any kind which is likely to injure other postal packets in course of their transmission by post or any person engaged in the business of a postal operator.

  2. (2) Subsection (1) does not apply to postal packets which enclose anything permitted (whether generally or specifically) by the postal operator concerned.

  3. (3) A person commits an offence if he sends by post a postal packet which encloses—

    1. (a) any indecent or obscene print, painting, photograph, lithograph, engraving, cinematograph film or other record of a picture or pictures, book, card or written communication, or

    2. (b) any other indecent or obscene article (whether or not of a similar kind to those mentioned in paragraph (a)).

  4. (4) A person commits an offence if he sends by post a postal packet which has on the packet, or on the cover of the packet, any words, marks or designs which are of an indecent or obscene character.

Keynote

The first offence addresses the sending of things that are likely to harm either other postal packets or postal workers. Evidence that any article is in the course of transmission by post, or has been accepted by a postal operator for transmission by post, will be enough to prove that it is in fact a ‘postal packet’ (s. 109). This offence will not apply to the sending of things that are permitted by the relevant postal operator.

The other offences under s. 85 apply irrespective of whether the offending packets are permitted by the postal operator and include indecent or obscene contents or packaging.

Whether an article is obscene etc. is a question of fact for the court to determine in each case. That test will not look at the particular views or frailties of the recipient but will be an objective test based on a reasonable bystander (Kosmos Publications Ltd v DPP [1975] Crim LR 345).

4.8.4.2 Obstruction of Postal Service

Offence Postal Services Act 2000, s. 88

  • Triable summarily

  • Fine

The Postal Services Act 2000, s. 88 states:

  1. (1) A person commits an offence if, without reasonable excuse, he—

    1. (a) obstructs a person engaged in the business of a universal service provider in the execution of his duty in connection with the provision of a universal postal service, or

    2. (b) obstructs, while in any universal postal service post office or related premises, the course of business of a universal service provider.

  2. (2) . . .

  3. (3) A person commits an offence if without reasonable excuse, he fails to leave a universal postal service post office or related premises when required to do so by a person who—

    1. (a) is engaged in the business of a universal service provider, and

    2. (b) reasonably suspects him of committing an offence under subsection (1).

  4. (4) A person who commits an offence under subsection (3)—

    1. (a) . . .

    2. (b) may be removed by any person engaged in the business of a universal service provider.

Keynote

The first offence involves the general obstruction, without reasonable excuse, of someone engaged in the business of a ‘universal service provider’. These providers are broadly organisations empowered under the 2000 Act to carry on many of the services that were formerly provided by the Post Office.

The second offence relates to conduct in a post office or related premises. Such conduct must be shown to have obstructed, without reasonable excuse, the course of business of a universal service provider. Therefore, it is not a member of staff who has to be obstructed here, but rather the postal business itself.

Section 88(3) is of more immediate relevance to police officers. This offence is committed if a person fails without reasonable excuse to leave a post office or related premises when required to do so by someone engaged in the provider's business who reasonably suspects the other person of committing one of the obstruction offences under s. 88(1). Anyone failing to leave when properly required to do so under subs. (3) may be removed by the post office staff but also, subs. (5) provides that ‘any constable shall on demand remove, or assist in removing, any such person’. This places a clear duty on, as opposed to just granting a power to, individual police officers to help in removing offenders under these circumstances.

‘Related premises’ are any premises belonging to a universal postal service post office or used together with any such post office (s. 88(6)).

4.8.5 Malicious Communications

Offence Malicious Communications Act 1988, s. 1(1)

  • Triable either way

  • Two years’ imprisonment and/or a fine

  • Six months’ imprisonment and/or a fine summarily

The Malicious Communications Act 1988, s. 1 states:

  1. (1) Any person who sends to another person—

    1. (a) a letter, electronic communication or article of any description which conveys—

      1. (i) a message which is indecent or grossly offensive;

      2. (ii) a threat; or

      3. (iii) information which is false and known or believed to be false by the sender; or

    2. (b) any article or electronic communication which is, in whole or part, of an indecent or grossly offensive nature,

      is guilty of an offence if his purpose, or one of his purposes, in sending it is that it should, so far as falling within paragraph (a) or (b) above, cause distress or anxiety to the recipient or to any other person to whom he intends that it or its contents or nature should be communicated.

Keynote

‘Sending’ will include transmitting.

‘Purposes’ is simply another way of saying ‘intention’.

Section 1(1)(b) covers occasions where the article itself is indecent or grossly offensive (such as putting dog faeces through someone’s letter box).

The offence is not restricted to threatening or indecent communications and can include giving false information provided that one of the sender’s purposes in so doing is to cause distress or anxiety. The relevant distress or anxiety may be intended towards the recipient or any other person.

In addition to letters, the above offence also covers any article; it also covers electronic communications which include any oral or other communication by means of an electronic communications network. This will extend to communications in electronic form such as emails, text messages, pager messages etc. (s. 1(2A)).

It is clear from s. 1(3) that the offence can be committed by using someone else to send, deliver or transmit a message. This would include occasions where a person falsely reports that someone has been a victim of a crime in order to cause anxiety or distress by the arrival of the police.

4.8.5.1 Defence Regarding Malicious Communications

Section 1 of the 1988 Act goes on to state:

  1. (2) A person is not guilty of an offence by virtue of subsection (1)(a)(ii) above if he shows—

    1. (a) that the threat was used to reinforce a demand made by him on reasonable grounds; and

    2. (b) that he believed, and had reasonable grounds for believing, that the use of the threat was a proper means of reinforcing the demand.

Keynote

The italicised words in the offence (author’s emphasis) make the relevant test objective. It will not be enough that the person claiming the defence under s. 1(2) subjectively believed that he/she had reasonable grounds; the defendant will have to show:

  • that there were in fact reasonable grounds for making the demand;

  • that he/she believed that the accompanying threat was a proper means of enforcing the demand; and

  • that reasonable grounds existed for that belief.

Given the decisions of the courts in similarly worded defences under the Theft Act 1968 (e.g. blackmail; see Crime, chapter 1.13), it is unlikely that any demand could be reasonable where agreement to it would amount to a crime.

The defence is intended to cover financial institutions and other commercial concerns which often need to send forceful letters to customers.

4.8.6 Public Communications

Offence Communications Act 2003, s.127

  • Triable summarily

  • Six months’ imprisonment and/or a fine

The Communications Act 2003, s. 127 states:

  1. (1) A person is guilty of an offence if he—

    1. (a) sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or

    2. (b) causes any such message or matter to be so sent.

  2. (2) A person is guilty of an offence if, for the purpose of causing annoyance, inconvenience or needless anxiety to another, he—

    1. (a) sends by means of a public electronic communications network, a message that he knows to be false;

    2. (b) causes such a message to be sent; or

    3. (c) persistently makes use of a public electronic communications network.

Keynote

These offences are designed to deal with ‘nuisance’ calls. They only apply to ‘public’ electronic communications networks. These are defined as an electronic communications network provided wholly or mainly for the purpose of making electronic communications services available to members of the public (s. 151) and would therefore not generally include internal calls in a workplace.

The wording would apply to the sending of messages via the Internet (provided the system used comes within the definition under s. 151). They also take in public social media systems such as Twitter, as the case of Chambers v DPP [2012] EWHC 2157 (Admin) has held. This involved a man posting a joke on his Twitter account about a bomb hoax at an airport. He was arrested and charged under s. 127.

There is no need to show a particular ‘purpose’ (intention) on the part of the defendant for the first offence under s. 127(1) and that offence is complete if the message is, as a matter of fact, grossly offensive, indecent, obscene or menacing.

The offence also covers actions which cause others to send such a message.

Unlike the offence under s. 51(2) of the Criminal Law Act 1977 (see para. 4.8.3), there is no need for any information passed to be ‘false’. In determining whether a message is ‘grossly offensive’, it is the message and not the content that is the basic ingredient of the offence. What constitutes ‘grossly offensive’ has to be judged by considering the reaction of reasonable people and the standards of an open and just multiracial society (DPP v Collins [2005] EWHC 1308 (Admin)).

The second offence, under s. 127(2), requires that you show the defendant acted with the purpose of causing annoyance, inconvenience or needless anxiety.

A person is to be treated as ‘persistently misusing’ a network or service in any case in which his/her misuse is repeated on a sufficient number of occasions for it to be clear that the misuse represents a pattern of behaviour or practice, or recklessness as to whether persons suffer annoyance, inconvenience or anxiety (s. 128(6)).

In assessing these points it is immaterial that the misuse was in relation to a ‘network’ on some occasions and in relation to a communications ‘service’ on others, that different networks or services were involved on different occasions or that the people likely to suffer annoyance, inconvenience or anxiety were different on different occasions (s. 128(7)).

This second offence is a ‘penalty offence’ for the purposes of s. 1 of the Criminal Justice and Police Act 2001.

Where a number of calls have been made to several different people within the community, the offence of public nuisance may also be considered.

4.8.6.1 False Alarms of Fire

Offence Fire and Rescue Services Act 2004, s. 49

  • Triable summarily

  • Imprisonment for a term not exceeding 51 weeks and/or a fine (In relation to an offence committed before the commencement of s. 281(5) of the Criminal Justice Act 2003, the reference to 51 weeks is to be read as a reference to three months)

The Fire and Rescue Services Act 2004, s. 49 states:

  1. (1) A person commits an offence if he knowingly gives or causes to be given a false alarm of fire to a person acting on behalf of a fire and rescue authority.

Keynote

The offence requires proof that the defendant acted ‘knowingly’ (as opposed to e.g. mistakenly). The offence clearly applies where someone makes a malicious call to a fire and rescue authority. However, the wording ‘causes to be given’ potentially covers the making of a false report to a body other than a fire and rescue authority, e.g. the police, if the person knew that this would result in the police passing that call to the relevant fire and rescue authority.

This offence is a ‘penalty offence’ for the purposes of s. 1 of the Criminal Justice and Police Act 2001.