Social media and criminal offences - Communications Committee Contents


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.[27]

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 be prosecuted.

67.  In relation to these offences, the Director's guidance says:

    "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; or

    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 of expression.

    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.[28]

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 … They cannot investigate every transgression on the social media".[29] 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.

27   Q  11 Back

28   Q 21 Back

29   Q 7 Back

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