The Director of Public Prosecutions, Keir Starmer QC, has published final guidelines for prosecutors on the approach they should take in cases involving communications sent via social media. The guidelines can be accessed here.
The CPS are confident that the three-month consultation period on interim guidelines has shown that those guidelines, published in December 2012, were in the right place.
Mr Starmer said:
‘Millions of communications are sent via social media every day, and prosecutors must be equipped to deal appropriately and consistently with cases arising from the growing use of these new ways of communicating. When I published the interim guidelines on prosecuting cases involving social media, I aimed to strike the right balance between freedom of expression and the need to uphold the criminal law. Encouragingly, the public consultation showed there is wide support for the overall approach set out in the guidelines, which state there should be a high threshold for prosecution in cases involving communications which may be considered grossly offensive, indecent, obscene or false.
Having considered the consultation responses, and our experience of dealing with these cases in recent months, I believe the guidelines do set out the right approach to prosecution by making the distinction between those communications that should be robustly prosecuted, such as those that amount to a credible threat of violence, a targeted campaign of harassment against an individual or which breach court orders, and those communications which may be considered grossly offensive, to which the high threshold must apply.
These are cases that can give rise to complex issues, but to avoid the potential chilling effect that might arise from high numbers of prosecutions in cases in which a communication might be considered grossly offensive, we must recognise the fundamental right to freedom of expression and only proceed with prosecution when a communication is more than offensive, shocking or disturbing, even if distasteful or painful to those subjected to it.‘
The final guidelines are broadly similar to those published for consultation, although changes made following feedback to the consultation include:
- Greater detail about communications targeting specific individuals, particularly making it clear that this category relates to communications that constitute harassment or stalking
- Clarification that where a communication might constitute a credible threat of violence or harassment or stalking, prosecutors should consider whether the offence is racially or religiously aggravated or whether there is aggravation related to disability, sexual orientation or transgender identity and pay particular regard to the increase in sentence provisions
- In those cases where communications might be considered grossly offensive, indecent, obscene or false that meet the high threshold for prosecution, the guidelines have been amended to make clear that prosecutors should particularly consider whether there is a hate crime element to the communication, when assessing the impact on the victim
- Clarification of the wording of the public interest factors to be considered for prosecution under section 1 of the Malicious Communications 1988 or section 127 of the Communications Act 2003
- Clarification that when considering the public interest factors set out in the guidelines in relation to cases considered grossly offensive, indecent, obscene or false, prosecutors should also consider the public interest test set out in the Code for Crown Prosecutors, particularly with regard to the circumstances of and harm caused to the victim.
Mr Starmer added: ‘The guidelines will help prosecutors to make fair and consistent decisions to prosecute in those cases that clearly require robust prosecution in accordance with the Code for Crown Prosecutors, and to uphold the right to freedom of speech in those cases where a communication might be considered grossly offensive, but the high threshold for prosecution is not met.’
The guidelines maintain reference to the benefit of early consultation between police and prosecutors in these cases and the police are encouraged to contact the CPS at an early stage of the investigation.
The guidelines are effective as of 20 June 2013.
