New Charging Guidelines published for ‘social media communication’ offences

The Crown Prosecution Service has published new guidelines on when social media communications might constitute criminal offences in an attempt to provide clear advice to the Police and prosecutors and to have consistency before the courts.

A copy of the guidelines can be found here.

Is it in the public interest?

In order to send out clear guidance as to what may constitute an offence the guidelines state that ‘care should be taken when considering ‘sexting’ that involve images taken of persons under 18’ and advises that it would not usually be in the public interest to prosecute the consensual sharing of sexual images between children noting:-

"Whilst it would not usually be in the public interest to prosecute the consensual sharing of an image between two children of a similar age in a relationship, a prosecution may be appropriate in other scenarios, such as those involving exploitation, grooming or bullying... When assessing whether a prosecution is required in the public interest prosecutors must follow the approach set out in these guidelines as well as the wider principles set out in the Code for Crown Prosecutors. One factor that may warrant particular consideration is the involvement of younger or immature perpetrators. Children may not appreciate the potential harm and seriousness of their communications and as such the age and maturity of suspects should be given significant weight, particularly if they are under the age of 18".

Categories of Offences

The Guidelines are split into two main areas: offence types (which identifies four distinct categories of offences) and relevant issues regarding social media offending (which provides specific guidance for the categories of offending).

When a potential offence has been identified the Code for Crown Prosecutors should be applied in the first instance.  If a case does not pass the ‘evidential stage’ then no further consideration should be taken into account, no matter how serious or sensitive the case may be.

Once a potential offence has been identified and deemed to have passed the Code for Crown Prosecutors test consideration must be given as to which of the four potential categories of offences it falls within. Category 1 deals with communications with may constitute threats of violence to the person or damage to property. Category 2 identifies communications which specifically target an individual(s) and may constitute the potential distinct criminal offences such as harassment, stalking, controlling or coercive behaviour, disclosing private sexual images without consent, an offence under the Sexual Offences Act 2003, blackmail and so on. Category 3 offences deal with communications which may amount to a breach of court order or statutory provision, for example, juror misconduct offences, contempt of court, breaches of restraining order and/or bail to provide a few examples. Some of these offences will require additional consideration and consent, for example, contempt of court offences will require the Attorney General’s consideration and agreement before charges can be instigated. Finally, Category 4 offences cover cases which do not fall into the three distinct categories but are generalised in the Guidelines as communications which may be deemed ‘grossly offensive, indecent, obscene or false’.

As a general rule, it will usually be deemed to be in the public interest to prosecute cases falling within categories 1 to 3 (provided they have satisfied the evidential stage of the test in the Code for Crown Prosecutors). Cases within Category 4 are subject to a high evidential threshold and in many cases a charge will be unlikely.

Click here for information on how Brett Wilson LLP solicitors can assist you if you are being investigated for social media offences or here if you are the victim of online harassment and would like to take civil legal action.