MALICIOUS COMMUNICATIONS

 

A common and particularly unpleasant form of harassment is that involving malicious communications either through the post, the telephone, Fax, by cyberstalking through the internet or, an increasing problem, by the use of Text or SMS messages sent to mobile phones.

Under section 1 of the Malicious Communications Act 1998 it is an offence to send an indecent, offensive or threatening letter, electronic communication or other article to another person and sections 85 Postal Services Act 2000 or s127 Communications Act 2003 there are similar specific offences relating to sending postal or telephone messages which are indecent offensive or threatening. Both offences are punishable with up to six months imprisonment and/or a fine. Because the Malicious Communications Offence is more wide ranging than the Telecommunications offence it is more likely to be charged by the Police than the Postal Services or Communications Act offences.

In most cases involving malicious communications however there will be more than one offensive or threatening letter or telephone call and therefore the police will often choose to charge the offender with an offence contrary to section 2 of the Protection from Harassment Act 1997. Part of the reason for using this charge is that when someone is convicted of an offence under the Protection from Harassment Act the court can make a Restraining Order preventing them from contacting their victim again. Breach of a Restraining Order is punishable with up to Five years imprisonment. A Restraining Order cannot be imposed for a conviction under the
Postal Services or Communications Act offences.

If the messages e-mails, phone calls etc cause the victim to fear that violence will be used agaisnt them then the police can choose to charge the offender with an offence contrary to section 4 of the Protection from Harassment Act 1997 which is punishable with up to Five years imprisonment and also allows the court to make a Restraining Order.

If the offensive or threatening letter, electronic communication or other article is racialist in nature or motivated by religious hostility then charges could be brought contrary to sections 32(1)(a) or 32(1)(b) of the Crime and Disorder Act 1998 . In serious cases offenders could face up to 7 years imprisonment.

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The fact that an offensive telephone call, letter e-mail etc may be received in the course of work and have been sent by a work colleague or manager does not justify the message or prevent it being an offence. Offensive messages sent within the workplace can still constitute criminal offences. In addition they may justify a claim for constructive dismissal and compensation under employment law .

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Dealing with malicious letters or telephone calls

Where an offensive or threatening letter or call is received the police should be informed particularly if the harassment continues.

DO NOT DESTROY THE LETTER or envelope. They will be needed as evidence in any criminal or civil trial. The police will also need the envelope in order to trace the sender or to check for fingerprints or other forensic evidence. If it is a phone call and it is possible to obtain a recording then that too should be retained and not destroyed. The same applies to offensive e-mails, faxes and text messages.

If it is a case of anonymous telephone calls then BT should be informed. They work with the police to trace malicious telephone callers and they have a very dedicated specialist department with an excellent record in this area.

Click here to go to The BT Malicious Telephone Calls Web Site
 

Civil Proceedings

In many situations the recipient of malicious messages knows who the sender is. It may be a former partner or a relative. In these situations there may be a reluctance to involve the police. In those circumstances the victim could consider taking out an Injunction under Section 3 of the Protection from Harassment Act 1997. I would always advise informing the police especially if the messages are in any way threatening. BT incidentally will insist on the police being informed before they will assist in tracing an anonymous caller. Even if the police decide not to prosecute they may give the offender a formal warning which could be used in evidence if they repeated their behaviour in future.

If the malicious caller is caught then the victim can sue the offender under Section 3 of the Protection from Harassment Act for compensation for the anxiety and for any financial loss caused.

Cyberstalking

Cyberstalking is the sending of malicious messages through e-mail and the internet. Though based on modern technology it is in principle exactly the same as any other form of malicious communication and can be dealt with through the normal civil and criminal law. The police have successfully used the Protection from Harassment Act in order to prosecute the sending of offensive e-mails through the Internet and such messages will also constitute an offence under the Malicious Communications Act.

If you are the victim of cyberstalking then it is important to inform the police and your Internet Service provider. DO NOT DELETE THE MESSAGES they will be required as evidence in any criminal or civil trial and in addition the police and the Internet Service Provider will need the original messages in order to trace the sender.

In 1999 the US Attorney General published a Report on Cyberstalking which provides an interesting overview of the problem

The following Web Sites also provide useful information and advice:
www.wiredsafety.org
www.cyberangels.org
 

Messages To/From outside England and Wales

There is often a lot of confusion as to the legal position where either the sender or the recipient of an offensive communication is outside the jurisdiction of English law. The Internet in particular is often assumed to be completely outside of any legal control. That is not the case though the legal position is not as clear as it could be and the Government has not specifically legislated to clarify the position.

In general terms provided the offensive message was either sent from within England and Wales or was received within England and Wales then an offence has been committed which the police and the courts in England and Wales can deal with.

Where the offender has sent the message from outside England and Wales the Police will usually inform their foreign counterparts. It will frequently be the case that the offender has also broken the law in his own jurisdiction and will be dealt with by the authorities in that jurisdiction.

Similarly if someone in England and Wales is harassing someone abroad by means of letters e-mails etc and the Police in England and Wales are informed of this then the offender could be arrested for criminal harassment and prosecuted regardless of the fact the victim was abroad.
 

  E-mail   NEIL ADDISON     at     Harassment Law