CHAPTER 3: GUIDANCE ON PROSECUTIONS |
Guidance on prosecutions
59. It might not always be at the forefront of
people's minds that, just because an offence appears to have been
committed and has been reported to the police, it will not always
be investigated or prosecuted by the state.
60. The Prosecution of Offences Act 1985 requires
the Director of Public Prosecutions to issue guidance on the principles
to be applied when prosecutors consider whether to institute proceedings
for any offence. All of the guidance is published. There is a
core document supplemented by specific guidance on particular
ranges of offences. The two basic principles are: i) is there
enough evidence against the defendant; ii) is it in the public
interest for the CPS to bring the case to court.
61. In terms of evidence, Crown Prosecutors must
consider whether evidence can be used in court and is reliable
and credible. Crown Prosecutors must be satisfied there is enough
evidence to provide a "realistic prospect of conviction"
against each defendant.
62. In terms of public interest, a prosecution
will usually take place unless the prosecutor is sure that the
public interest factors tending against prosecution outweigh those
tending in favour. Public interest considerations include the
likely sentence, the delay if there has been a delay, the position
of trust that the alleged offender may be in, the position of
the victim and whether they are a particularly vulnerable victim.
63. The Director necessarily has significant
discretion to determine when it is in the public interest to bring
a prosecution and when it is not. It is always open to Parliament
to qualify that discretion.
64. The Director has published guidelines for
prosecutions involving communications sent using social media.
As we set out at paragraph 14, the guidance is structured
by four types of conduct:
(a) communications which may constitute credible
threats of violence to the person or damage to property
(b) communications which specifically target
an individual and which may constitute harassment or stalking
(c) communications which may amount to a breach
of a court order
(d) communications which may be considered grossly
offensive, indecent, obscene or false.
65. The guidance says that cases falling within
(a), (b) or (c) should be prosecuted robustly, whereas cases which
fall within (d) face a high threshold and in many cases a prosecution
is unlikely to be in the public interest.
66. There is a long-standing and unresolved debate
about the extent to which "grossly offensive" statements
should be criminalised: we discussed the question at paragraphs 21
to 30. There is a similar debate about when such offences should
67. In relation to these offences, the Director's
"a prosecution is unlikely to be both necessary
and proportionate where:
the suspect has expressed genuine remorse;
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;
the communication was not intended for a wide
audience, nor was that the obvious consequence of sending the
communication; particularly where the intended audience did not
include the victim or target of the communication in question;
the content of the communication did not obviously
go beyond what could conceivably be tolerable or acceptable in
an open and diverse society which upholds and respects freedom
In particular, where a specific victim is targeted
and there is clear evidence of an intention to cause distress
or anxiety, prosecutor should carefully weigh the effect on the
victim, particularly where there is a hate crime element to the
communication(s). A prosecution
may be in the public interest
in such circumstances"
68. The Director told us that the threshold for
prosecution in the majority of cases involving social media was
the same as for making the same comment orally in a public place.
69. For the reasons set out at paragraphs 21
to 30, we think that the Director's guidance on the prosecution
of "grossly offensive" communications is proportionate
and appropriate. It does however have the effect that few offences
committed under section 1 of the Malicious Communications Act
1988 and section 127 of the Communications Act 2003 will be prosecuted.
There may be a case for Parliament itself determining the circumstances
in which such offences should be prosecuted. On the other hand,
the advantage of this remaining in guidance is that the guidance
can be adjusted with greater agility than can a statute.
70. It is also appropriate because the volume
of alleged offences is so high. As John Cooper QC put it: "the
police are being inundated with spurious complaints
cannot investigate every transgression on the social media".
In due course, we hope that better statistics will be available
as to allegations, investigations and prosecutions: they would
inform the debate as to the appropriateness of the law.
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