We all may remember the childhood rhyme, and console ourselves that names will never harm us, but the law has long provided punishment for threatening words and behaviour. Threats to kill, threats to cause criminal damage, blackmail, public order offences, harassment/stalking and controlling and coercive behaviour can all be committed without any physical contact between perpetrator and victim and yet can contain words which constitute a threat.
However, in the large part, the offences above occur when people are in each other’s company. Until relatively recently they were accompanied by charges under the Malicious Communications Act 1988, which provided alternative charges for sending letters, articles or electronic communications which conveyed a message which was either indecent or grossly offensive, threatening or which contained false information etc. The maximum penalty was of 2 years’ custody on Indictment or the statutory maximum in the Magistrates court. Section127 of the Communications Act 2003 also created a summary only offence of improper use of an electronic communications network.
The MCA offence was amended on 31st January 2024 so that what is left under that Act now is only the act of sending a message which is indecent or grossly offensive, with intent to cause distress or anxiety (effectively “poison pen” letters and nuisance calls).
Threats have now moved to be covered by the Online Safety Act 2023. This is a long and detailed Act (241 sections and 17 schedules), passed to address the exponential growth of the online world and how it affects our daily lives. Criminal practitioners may not have noted its commencement with any particular attention but there are provisions which are starting to make their way onto Indictments before the courts.
These offences appear between section 179 and 188 of the OSA. The false information offence within the Malicious Communications Act now appears at section 179. It is a summary only offence and requires an intent to cause “non-trivial psychological or physical harm” to a likely audience. “Non-trivial” is not defined within the Act, no doubt leading to future problems as to whether it is an objective or subjective test to be applied to the definition.
Section 181 of the OSA creates an offence likely to be encountered with increasing frequency. An offence is committed if someone sends a message which conveys a threat of death or serious harm and, at the time of sending it, the sender either intended, or was reckless as to whether, an individual encountering the message to/would fear that the threat would be carried out, whether or not by the sender.
There is quite a lot to unpack in that wording. A “threat of death” is not defined. All living things die. The offence of threats to kill (s.16, OAPA 1861) makes it clear that the relevant threat must be to kill the person receiving the threat, or a third person. The new Act does not stipulate that the death must be of a human. Is it meant, therefore, to extend the concept to the death of a pet? Livestock? A pot plant?
“Serious harm” is defined, as either serious injury amounting to grievous bodily harm, rape, assault by penetration, or serious financial loss.
The obvious key point in the new offence is the mens rea. Whereas a threat to kill requires an intent that the receiver of the threat would fear that it would be carried out the new offence can be committed recklessly.
It also makes clear that the threat can be that someone else will do the act. This creates, therefore, a concept of a conditional threat. Compare this to a face-to-face encounter: A says to B “I’m going to kill you” is evidence of a threat to kill. “I’m going to get C to kill you” – a threat to kill? A says to B “I’m going to beat you up” is evidence of a common assault. “I’m going to get C to beat you up” would not be an assault, as it would be conditional upon C being willing to do the act, and we all remember Tuberville v Savage [1669] EWHC KB J25. Section 181 OSA therefore creates a novel concept. Section 182(6) extends the concept so that an offence can be committed when forwarding someone else’s direct message or shares someone else’s online post. The maximum penalty is one of five years’ custody.
As an interesting (?) historical aside, s.16 OAPA originally stated ‘Whosoever shall maliciously send, deliver, or utter, or directly or indirectly cause to be received, knowing the Contents thereof, any Letter or Writing threatening to kill or murder any Person, shall be guilty of Felony …’ until it was amended in the Criminal Law Act 1977.
Section 183 of the OSA creates an offence of sending a communication containing flashing images in certain circumstances. Section 184 creates an offence of encouraging or assisting self-harm. As neither contain “threat” offences they fall outside the scope of this article.
Sections 187 and 188 create two new sexual offences. Section 187 adds to the law prohibiting exposure to create an offence of intentionally sending a photograph or film of anyone’s genitals with either intent to cause alarm, distress or humiliation, or for the purpose of sexual gratification and being reckless as to whether the recipient will be caused alarm, distress or humiliation. The maximum penalty is one of two years’ custody.
Section 188 also adds to the law prohibiting exposure to create the offence of so-called “revenge porn”, and subsection 4 creates an offence of threatening to send a picture or film of someone in an intimate state. Again here the concept of an illegal threat is extended, as it is not just the recipient of the message who is considered. The offence can be committed if the threat, made by A to B, either intentionally or recklessly, is made where either B, or another person who knows B, will fear that the threat will be carried out. As the image does not need to be that of the person receiving the threat it would appear that the offence could be committed if A sent a threat to B, saying he would send an intimate image of C. In that scenario A could be guilty if B, C, or anyone else who knows B, would fear the threat being carried out. The scope of potential complainants is accordingly set very wide. The maximum penalty is, again, one of two years’ custody.
Section 187 has been inserted into the Sexual Offences Act 2003 as section 66A and section 188 as section 66B. As such consideration has to be given to notification requirements on conviction. Section 187/66A can lead to registration, whether or not the offence was committed for sexual gratification. Section 188/66B can lead to registration, but only when the offence was committed for the purposes of sexual gratification. Threatening to send such an image appears to have been excluded from the notification requirements.
One final consideration: at present it is not an offence to possess copies of any threatening message or intimate image (although see the proposals for sections 66AA, AB and AC and 66E and F of the Sexual Offences Act 2003). A deprivation order may be made under section 152 et seq. of the Sentencing Code to deal with any seized phones or computers but this only deals with the device used to send the threat or the image. Seemingly the law has yet to find a way to control an offender’s cloud-based memory storage, other than within the provisions of a Sexual Harm Prevention Order.
Whilst every effort has been taken to ensure that the law in this article is correct, it is intended to give a general overview of the law for educational and/or informational purposes. It is not intended to be a substitute for specific legal advice and should not be relied upon for this purpose.
This article represents the opinion of the author and does not necessarily reflect the view of any other member of St Philips Chambers.
