Communication Offences

Specialist lawyers defending communication offences

What sets Olliers apart from other law firms is the proactive approach we adopt during the pre-charge stage of a case. This approach is absolutely crucial when a client faces communication allegations.

During the investigation stage of a case we will always look at early pre-charge engagement with the police. From the outset we will focus upon the Charging Standard and the need for a ‘realistic prospect of a conviction’ in order a prosecution can commence. Our objective will always be to make effective representations against charge.

If we are instructed post charge the same methodical ‘no stone unturned’ approach applies. Our specialists have experience that few, if any defence teams could match and an extremely impressive acquittal rate. We will always ensure that the right barrister is matched with the right client – every time.

What are communication offences?

Part 10 of the Online Safety Act 2023 created new offences regarding communications sent on or after the commencement date of 31 January 2024, including:

A false communications offence
A threatening communications offence
An offence of sending/showing flashing images electronically (epilepsy trolling offence)
An offence of encouraging or assisting serious self-harm
An offence of sending photographs or film of genitals (cyber-flashing)
Offences of sharing or threatening to share intimate photographs or film
The offences of sending false or threatening communications

What constitutes ‘sending a message’?

‘Sending a message’ is defined as including not only communications or things which are sent directly between individuals, but also more generally transmitting communications by electronic means. It does not matter whether the content of a message is created by the person who sends it (so for example, in the online context, an offence may be committed by a person who forwards another person’s direct message or shares another person’s post). a message which includes a hyperlink to other content is to be read as referring to that content.

Sending False Communications – Section 179 OSA 2023

The offence is committed if:

a person sends a message (as defined in section 182 OSA 2023);
the message conveys information that the person knows to be false;
at the time of sending it, the person intended the message, or the information in it, to cause non-trivial psychological or physical harm to a likely audience; and
the person has no reasonable excuse for sending the message.

Sending threatening communications – Section 181 OSA 2023

Sending threatening communications carries a maximum penalty of up to 5 years’ imprisonment and/or an unlimited fine.

The offence is committed if:

the person sends a message;
the message conveys a threat of death or serious harm; and
at the time of sending it, the person:
intended an individual encountering the message to fear that the threat would be carried out (whether or not by the person sending the message), or
was reckless as to whether an individual encountering the message [i.e., by reading, viewing, hearing, or otherwise experiencing the message – section 182(5) OSA 2023] would fear that the threat would be carried out (whether or not by the person sending the message).

‘Serious harm’ is defined as ‘serious injury amounting to grievous bodily harm, rape, assault by penetration (as defined in section 2 Sexual Offences Act 2003), or serious financial loss.’

Where the evidence establishes that a credible threat of death was made to an individual, the offence of making a threat to kill may also be available and prosecutors should apply section 6 of the Code to decide on the appropriate charge. Threats to kill should only be charged where it is necessary to do so to reflect the seriousness of the offending and provide the court with adequate powers of sentence.

The threatening communications offence also captures threats where the recipient fears that someone other than the sender of the message may carry out the threat so extends to threats carried out by third parties.

Sending/Showing Flashing Images Electronically – Section 183 OSA 2023

There are two separate offences of sending or showing flashing images electronically, each of which carries a maximum penalty of up to 5 years’ imprisonment and/or an unlimited fine.

Sending Flashing Images

An offence is committed if:

a person (A) sends a communication by electronic means which consists of or includes flashing images
that either condition 1 or condition 2 is met;
and, A has no reasonable excuse for sending the communication.

Condition 1 is that:

at the time the communication is sent, it is reasonably foreseeable that an individual with epilepsy would be among the individuals who would view it, and
a person (A) sends the communication with the intention that such an individual will suffer harm as a result of viewing the flashing images.

Condition 2 is that when sending the communication—

A believes that an individual (B), whom A knows or suspects to be an individual with epilepsy will, or might, view it, and
A intends that B will suffer harm as a result of viewing the flashing images.

The offence may be committed by a person who forwards or shares the electronic communication, as well as by the person who originally sends it.

“Harm” is defined as meaning a seizure, or alarm or distress; and, an “individual with epilepsy” includes, but is not limited to, an individual with photosensitive epilepsy.

There is no requirement however that such harm should in fact be caused. In most cases it will be clear whether a particular image meets the definition and it should not therefore be necessary to seek to prove that fact.

Showing Flashing Images – Section 183(8) OSA 2023

A person (A) commits an offence if:

A shows an individual (B) flashing images by means of an electronic communications device
when showing the images, A knows or suspects that B is an individual with epilepsy,
when showing the images, A intends that B will suffer harm as a result of viewing them, and
A has no reasonable excuse for showing the images.

The legislation does not define the meaning of ‘showing’. However, section 183(12) OSA 2023 provides that ‘showing’ flashing images includes causing flashing images to be shown. Therefore the offence may be committed between individuals who are physically remote, as well as between individuals who are within sight of each other, and may cover different ways of displaying images to another person.

“Flashing images” are defined by section 183(13) OSA 2023 as meaning images which carry a risk that an individual with photosensitive epilepsy who viewed them would suffer a seizure as a result.

“Harm” is defined as meaning a seizure, or alarm or distress; and, an “individual with epilepsy” includes, but is not limited to, an individual with photosensitive epilepsy.

However, there is no requirement that such harm should in fact be caused.

Encouraging or Assisting Serious Self-Harm – Section 184 OSA 2023

The offence of encouraging or assisting serious self-harm carries a maximum penalty of up to 5 years’ imprisonment and/or an unlimited fine.

The offence is committed if the offender does a relevant act capable of encouraging or assisting the serious self-harm of another person, and the offender’s act was intended to encourage or assist the serious self-harm of another person. The victim need not be a specific person (or class of persons) known to, or identified by, the offender. ‘Encouraging’ includes threatening or otherwise putting pressure on another person.

Section 184(12) provides that an act capable of encouraging or assisting the serious self-harm of another person includes a course of conduct. An “act” of self-harm in subsection (3) includes an omission. So, for example, a person who encourages another person not to eat, not to drink or not to take required prescription medication would be captured by the offence (section 184(13) OSA 2023).

Section 184(2) OSA 2023 sets out numerous means by which a ‘relevant act’ may occur, including: communicating in person; sending, transmitting, or publishing a communication by electronic means; showing a person a communication; publishing material other than by electronic means; and sending, giving, showing, or making a communication available to a person.

Where an offender arranges for a third party to do an act that is capable of encouraging or assisting the serious self-harm of a victim and the third party does that act, the offender is to be treated as also having done it. Consequently, two or more individuals may commit a relevant act.

‘Serious self-harm’ is defined in section 184(3) OSA 2023 as amounting to grievous bodily harm within the meaning of the Offences Against the Person Act 1861 and includes successive acts of self-harm which cumulatively reach that threshold. Note, however, that an offence may be committed under section 184(1) OSA 2023 whether or not serious self-harm in fact occurs (section 184(5) OSA 2023). What is important is that the suspect’s intention meets the threshold set by Parliament for criminalisation: that of intended serious self-harm.

Sending Photographs or Film of Genitals (Cyber-Flashing) – Section 66A Sexual Offences Act 2003 [as inserted by Section 187 OSA 2023]

Also known as ‘cyberflashing’, this carries a maximum penalty of up to 2 years’ imprisonment and/or an unlimited fine.

The offence is committed when an offender intentionally sends or gives a photograph or film of any person’s genitals to another person, and either:

the offender intends that other person will see the genitals and be caused alarm, distress, or humiliation; or
the offender sends or gives such a photograph or film for the purpose of obtaining sexual gratification and is reckless as to whether the other person is caused alarm, distress, or humiliation.

A person convicted of an offence under section 66A SOA 2003 may become subject to notification requirements (sexual offenders register)

False CSEA Reporting- Part 4, Section 69 Online Safety Act 2023

Part 4 of the Online Safety Act 2023 also created a new either-way offence in relation to CSEA reporting. This will commence once the Codes of Practice have been issued by OFCOM.

Within Part 4, section 69 of the OSA 2023, a requirement for UK regulated user-to-user and regulated search services is to operate their service using systems and processes which secure (so far as possible) that they report all detected and unreported CSEA content to the NCA/designated reporting body. Non-UK services are only required to report CSEA content to the NCA/designated reporting body where they can establish a UK link, unless they already report all CSEA content.

An individual commits this offence if they, in purported compliance with the reporting requirement, provide information that is false in a material respect, and know it is false in a material respect or are reckless to this fact.

There will not be a consequence if the provider reports CSEA content to the NCA which the provider thinks might have a link to the United Kingdom, but does not.

This offence carries a maximum penalty of up to 2 years’ imprisonment and/or a fine in England and Wales.

CSEA content is defined as content that amounts to an offence specified in Schedule 6 (OSA 2023). This references offences from the Sexual Offences Act (2003), Sexual Offences (Northern Ireland) Order (2008), Section 62 of the Coroners and Justice Act (2009) and Section 69 of the Serious Crime Act (2015)

The definition of detected content is when the provider becomes aware of the content, whether by means of the provider’s systems or processes or as a result of another person alerting the provider. This may include automated monitoring systems (i.e. hash matching), human moderators or user reports.

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 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.

The following factors should be considered:

The likelihood of re-offending.
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, 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

Separate guidance covers the particular considerations which apply when dealing with a suspect under the age of 18 or where their mental health is a relevant consideration.

Cyberstalking

Some of this activity is colloquially known as “cyberstalking”, which is generally 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. 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.

Hate Crime Offences involving communications

Paragraph 4.14(c) of the Code for Crown Prosecutors provides:

“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.”

Such factors 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 a 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.

How can Olliers help?

At the pre-charge investigation stage, we can communicate with the police on your behalf. We can prepare representations in relation to either mitigation if the offence is admitted, or setting out your case if the offence is denied. Read more about our pre-charge investigation work here.

If you are charged with this offence, we can represent you at court, with one of our specialist solicitors presenting your case. We will advise you on the strength of the evidence and the sentencing guidelines in the context of your case. If you are entering a guilty plea, we will do our very best to ensure you receive the lowest sentence possible. If you are entering a not guilty plea, we will put forward your case to the court, ensuring you have the best chance possible of the desired outcome.

Need a solicitor for communication allegations?

Contact Olliers to arrange advice and representation in relation to communication allegations by completing the form below, telephoning 0161 8341515 or by emailing info@olliers.com.