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Almost everything written about this subject since 2024 contains the same error. The Online Safety Act 2023 is widely described as having replaced the malicious communications offence. It did not. Section 189 of that Act, in force from 31 January 2024, cut two limbs out of section 1 of the Malicious Communications Act 1988 and left the rest of it standing, then added two new offences beside it. Section 127 of the Communications Act 2003 lost two paragraphs and survives as well.
The result is that one message can now engage four separate offences, with maximum sentences running from six months to five years, tried in different courts, with different elements and different time limits. Which one a prosecutor selects is the most consequential decision in the case, and it is made before anyone is charged.
This is a plain-English account of what each of the four offences requires, what was actually repealed, how the police and the CPS decide between them, and where a defence to an allegation of this kind is fought. It is written for anyone facing a malicious communications allegation or contacted by the police about messages they sent, for their families, and for employers and professionals who need to understand what the allegation actually means.
In ordinary speech the phrase covers any message that was abusive, threatening, upsetting or a lie. In law it refers to a specific offence created by section 1 of the Malicious Communications Act 1988, headed "Offence of sending letters etc with intent to cause distress or anxiety", and that offence has never covered all of those things at once. The Act was passed to deal with poison pen letters, which is why it reaches physical objects rather than only networks, and the name it has acquired is misleading in one further way: it requires no malice. "Malicious intent" is not an element of anything. What must be proved is a purpose of causing distress or anxiety, which is a narrower and more specific thing.
In cyber security, the same phrase means something else entirely: phishing emails that mimic trusted organisations to steal information, spear phishing aimed at particular individuals, whaling aimed at executives, smishing by text message and vishing by phone call. Warning signs include demands for immediate action and mismatched sender details, and organisations reduce the risk with staff training and technical controls. Those messages are not usually prosecuted under the Acts discussed here; they are typically charged as fraud under the Fraud Act 2006 or under the Computer Misuse Act 1990. This article is about the criminal communications offences.
Malicious communications offences are among the most common allegations arising from phones and social media, and the scale is worth knowing. Custody data obtained by The Times showed 37 police forces made 12,183 arrests in 2023 under section 127 and the 1988 Act, about 33 a day and a rise of almost 58% on pre-pandemic levels. Convictions went the other way: 1,119 people were sentenced for those offences in 2023, against 1,995 found guilty in 2015. Arrests for online communications have risen sharply. Convictions have not. Most malicious communications investigations never end in a conviction, and the outcome is usually decided at the police station and in the weeks after it, long before court. That is where advice matters most.
The confusion matters because the four provisions now in play do not overlap neatly, and a person told they are "under investigation for malicious communications" frequently has no idea which of them is being considered. They are usually told at a police station, in the few minutes before an interview, by someone with no reason to explain the difference.
The starting point is to read what section 1 of the 1988 Act now says, with the repeals applied:
(1) Any person who sends to another person— (a) a letter, electronic communication or article of any description which conveys a message which is indecent or grossly offensive; (b) any article or electronic communication which is, in whole or part, of an indecent or grossly offensive nature, is guilty of an offence if his purpose, or one of his purposes, in sending it is that it should, so far as falling within paragraph (a) or (b) above, cause distress or anxiety to the recipient or to any other person to whom he intends that it or its contents or nature should be communicated.
Two features of that wording do a great deal of work.
The offence is complete on sending. No one has to receive the message, read it, or be distressed by it. A message sent and immediately deleted, or sent to an account that was never opened, is the complete offence.
The offence turns on purpose, not effect. The prosecution must prove that causing distress or anxiety was a purpose of sending it, though not necessarily the only one. A message sent in temper, intending to wound, meets that description. A message sent to make a complaint, to end a relationship, or to confront someone about their conduct does not, even where it caused very real distress, and the distinction between the two is where most contested cases of this kind are decided.
What it covers: a letter, electronic communication or article conveying a message that is indecent or grossly offensive, or an article or electronic communication that is itself indecent or grossly offensive in whole or part.
What must be proved: that it was sent, and that a purpose of sending it was to cause distress or anxiety.
Maximum sentence: two years' imprisonment or a fine on conviction on indictment; twelve months or a fine on summary conviction.
The feature that matters: this offence is not limited to electronic networks. A letter put through a door is within it. Neither does it require a public network, so a message sent on a closed internal system, or handed over on a memory stick, is covered. It is the broadest of the four in reach and the second most serious in penalty.
What it covers: sending, by means of a public electronic communications network, "a message or other matter that is grossly offensive or of an indecent, obscene or menacing character", or causing any such message or matter to be so sent. The phrase "or other matter" is wider than it looks, catching images and files as well as words.
Maximum sentence: six months' imprisonment or a fine at level 5, on summary conviction. This offence cannot be tried in the Crown Court.
The feature that matters: there is no requirement of any purpose or intention to cause distress. That makes it easier to prove than the 1988 Act offence, and it is the reason it is charged so often. It also carries the "menacing" limb, which the 1988 Act never had and no longer could, since the threat limb was repealed from it.
Time limit: proceedings must begin within six months of the date on which the prosecutor obtained evidence sufficient to justify them, and in any event within three years of the offence.
Section 127(2) survives in part. Section 127(2)(a) and (b), which covered sending a message known to be false and causing one to be sent, were repealed on 31 January 2024. What remains is the offence of persistently using a public electronic communications network for the purpose of causing annoyance, inconvenience or needless anxiety.
This is the offence that replaced the false-information limb of the 1988 Act. It is considerably narrower than what it replaced:
(1) A person commits an offence if— (a) the person sends a message, (b) the message conveys information that the person knows to be false, (c) at the time of sending it, the person intended the message, or the information in it, to cause non-trivial psychological or physical harm to a likely audience, and (d) the person has no reasonable excuse for sending the message.
Four elements, each of which has to be proved. The sender must know the information is false, so a person who believed it, or who was reckless about whether it was true, does not commit this offence. The intention must be to cause non-trivial psychological or physical harm. The absence of a reasonable excuse is an element of the offence rather than a defence to be raised, which places the burden on the prosecution.
A "likely audience" is anyone who, at the time of sending, it was reasonably foreseeable would encounter the message, or would encounter a later message forwarding or sharing it. Where there are many such people, the prosecution does not have to show that any particular one of them was the intended target.
Maximum sentence: summary only. Six months, rising to 51 weeks when section 281(5) of the Criminal Justice Act 2003 is commenced.
Time limit: six months from the date the prosecutor obtained sufficient evidence, and in any event within three years of the offence. A certificate signed by the prosecutor as to that date is conclusive evidence of it, which is worth knowing before anyone assumes a delayed charge is out of time.
Section 180 of the Act sets out exemptions from this offence, which cover recognised news publishers and certain broadcast and film content.
This is the serious one, and it is the provision that has most changed the landscape.
A person commits the offence by sending a message conveying a threat of death or serious harm, where they intended an individual encountering the message to fear that the threat would be carried out, or were reckless as to whether such an individual would fear it.
"Serious harm" is defined: serious injury amounting to grievous bodily harm within the meaning of the Offences Against the Person Act 1861, rape, assault by penetration within section 2 of the Sexual Offences Act 2003, or serious financial loss.
Maximum sentence: five years' imprisonment on conviction on indictment. This is ten times the maximum under section 127 and two and a half times the maximum under the 1988 Act.
The defence: where the threat was of serious financial loss, it is a defence to show that the threat was used to reinforce a reasonable demand and that the person reasonably believed that using the threat was a proper means of reinforcing it. That defence is confined to financial threats; there is no equivalent for threats of violence.
The feature that matters: recklessness is enough. A message sent in anger, by someone who did not want it believed and did not expect it to be, can still be the offence if they were reckless as to whether the person reading it would fear it would be carried out. That is a much lower bar than most people assume when they send something they regard as obviously rhetorical.
Set the four side by side and the practical effect is clear.
| Offence | Triable | Maximum | Must prove intent? |
|---|---|---|---|
| MCA 1988 s.1 | Either way | 2 years | Purpose of causing distress or anxiety |
| CA 2003 s.127(1) | Summary only | 6 months | No |
| OSA 2023 s.179 | Summary only | 6 months (51 weeks) | Knowledge of falsity + intent to cause non-trivial harm |
| OSA 2023 s.181 | Either way | 5 years | Intention or recklessness as to fear |
One message calling someone a name, sent to wound, is the 1988 Act offence and probably section 127 as well. Add a line about what will happen to them, and section 181 becomes available, and the maximum moves from six months to five years. Nothing about the sender's conduct needs to change very much for the exposure to change by an order of magnitude.
This is why representations made before the charging decision are worth more in this area than in almost any other. The question put to the prosecutor is not only whether to charge, but what to charge, and the gap between the available answers is enormous.
Both phrases have been considered at the highest level, and in both cases the courts set the threshold well above "rude" or "upsetting".
In DPP v Collins [2006] UKHL 40 the House of Lords held that whether a message is grossly offensive is judged by the standards of an open and just multi-racial society, taking account of context and all the relevant circumstances. The test is not whether the recipient was offended. It is whether the message was couched in terms liable to cause gross offence to those to whom it relates. The word "grossly" is doing real work, and a message that is merely offensive, distasteful or rude does not meet it.
In Chambers v DPP [2012] EWHC 2157 (Admin), the appeal arising from a joke about an airport posted on Twitter, the Divisional Court quashed a conviction under section 127 and confirmed that a menacing message is one which conveys a threat, seeking to create fear in or through the recipient that something unpleasant is going to happen. The likely effect on the reader is ordinarily a central factor. A message that nobody who read it could sensibly have taken as a threat is not of a menacing character, whatever its words.
Context, in both tests, is not mitigation. It is part of the element the prosecution has to prove, and it is evidence: the relationship between the parties, what had been said before, what was going on at the time, whether the exchange was mutual. All of it is recoverable, and much of it is on the complainant's device rather than the suspect's.
Behind both tests sits a principle the courts state more plainly than most people expect. In Redmond-Bate v DPP [1999] EWHC Admin 733, Sedley LJ put it this way:
Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having.
Free speech is not unlimited, and it does not protect threats. That passage is not a defence anyone pleads, and it will not keep a genuinely threatening message out of court. It is the reason the thresholds in these offences sit where they do, and it is the frame in which a prosecutor is supposed to assess whether a prosecution is proportionate and in the public interest at all. Free speech, in other words, is part of the law the prosecutor must apply, not a slogan.
A single message is one thing. A course of conduct is another, and it is charged under a different Act.
Harassment, under the Protection from Harassment Act 1997, requires a course of conduct, meaning conduct on at least two occasions, which amounts to harassment of another and which the defendant knew or ought to have known amounted to harassment. The test for what the defendant ought to have known is what a reasonable person in possession of the same information would think. Section 2 carries six months; the section 4 offence of putting a person in fear of violence, where the course of conduct causes another to fear on at least two occasions that violence will be used against them, carries ten years on indictment.
Where messages were sent repeatedly, this is frequently the real exposure, and the communications offence is the lesser part of the file. A restraining order can also follow, including on acquittal, which is a consequence many people do not discover until it is made.
Aggravating features are taken from the general sentencing framework rather than from these Acts. Hostility demonstrated towards a victim's race, religion, disability, sexual orientation or transgender identity increases sentence, and CPS guidance treats hostility based on sexual orientation or any other protected characteristic as a serious aggravating feature, and where a message carries it, the charge is usually the least of the problem.
Rarely from strangers. In practice these allegations arise most often out of the following situations.
The end of a relationship. A sequence of messages sent over days or weeks, extracted from a phone and presented as a block. Read together they look relentless. Read in sequence with the replies, they are frequently an argument in which both people participated.
A dispute with a neighbour, a colleague or a business counterparty. Here the question of reasonable excuse, and of whether the purpose was to cause distress or to pursue a complaint, is usually the whole case.
A single message sent at two in the morning. Written in a state the sender does not recognise the next day, sent to one person, and now the subject of a police investigation.
Something posted publicly. A post or reply that a large number of people saw, where the "likely audience" provisions in section 179 do significant work and where the sender's intended target may not be the person who complained.
A report made as part of a wider dispute, including family proceedings, where the communications allegation runs alongside something else and its real function is evidential.
In every one of these the material that decides the case already exists, on two devices, and the account given in the first interview is given before anyone has seen it.
The elements, offence by offence. Each of the four requires something different. A case that is unanswerable under section 127 may be unprovable under section 181, and establishing that before a charge is selected is worth more than any argument made afterwards.
Context and the full exchange. A message produced on its own is almost always more damaging than the same message in its thread. Obtaining the complete exchange, including what was sent in reply, is routine work that is routinely not done.
Purpose. Under the 1988 Act the prosecution must prove a purpose of causing distress or anxiety. Where the evidence shows the purpose was to complain, to retrieve property, to end contact or to respond to provocation, the element fails, however unpleasant the wording.
Reasonable excuse. Under section 179 this is an element of the offence, not a defence. The prosecution has to prove its absence.
Authorship and access. Who had the device, who had the account, whether a password was shared. In household and relationship cases this is a live issue far more often than people expect.
Article 10. Communications offences engage freedom of expression, and CPS guidance applies a high threshold before prosecuting communications sent on social media for that reason. The evidential stage is only half of it: a prosecutor must also be satisfied that a prosecution is in the public interest, and in this area that question does real work, because a great many messages clear the evidential bar and should still not be prosecuted. A case that would not survive that assessment should not be charged, and saying so before the decision is made is the point at which it can be avoided.
The general defences. Duress, insanity and automatism apply to these offences in principle. They are rare in practice, but where serious mental ill health, a medical episode or another person's threats played a part in a message being sent, they have to be considered properly, not dismissed.
The time limit. For section 127 and section 179, proceedings have to be brought within six months of the prosecutor obtaining sufficient evidence, and within three years of the offence. Delays of several months are common in these investigations, and the dates are worth checking.
A first malicious communications offence rarely attracts a prison sentence, and many people who pleaded guilty in the past did so without realising what else a conviction would cost them. That is not the reason to take it seriously.
A conviction leaves a criminal record, and a criminal record for sending malicious communications follows a person into every job application that asks, and these offences sit awkwardly on one. "Malicious communications" tells an employer, a regulator or a vetting officer nothing about whether the message was a drunken insult to an ex-partner or a sustained campaign against a victim, and the assumption made is rarely the generous one. Whether a conviction is ever filtered from a standard or enhanced DBS certificate depends on the offence, the sentence and the time that has passed, so it can stay visible to employers for many years.
A caution is not the soft landing it appears to be either. It requires an admission of the offence, including the element the prosecution would have had to prove, and it is disclosable. Where there are no reasonable grounds to suspect the crime is made out, the correct outcome is no further action, and that is a thing to argue for rather than accept. Our guide to what accepting a police caution actually costs sets out the rest of it.
Then there is the thing that is not a sentence at all: the message is now in a file, with the identity of the intended recipient and the victim, and in any family or employment dispute that follows, it will be produced.
We act on behalf of clients under investigation for malicious communications offences at the stage where the outcome is still open: before the interview, before the charging decision, and before a single message has been lifted out of its thread and put in a file on its own. The work is pre-charge representation.
It begins with disclosure, and with recovering the whole exchange rather than the extract. It continues with the interview decision, taken with that disclosure in view. Where the elements of the offence under consideration are not made out, or where a different and far less serious offence is the only one the evidence supports, we put that to the officer in the case and to the CPS in writing, with the material behind it, before the charging decision. In this area that submission does unusual work, because the choice between four offences is a choice between six months and five years.
Where a charge has already been brought, the same analysis is put to the prosecution to seek a review of the charging decision and, where the evidence does not support the charge, a discontinuance, rather than waiting for a trial to reach the same conclusion at far greater cost.
These allegations reach people who have never been in trouble, arising out of a few minutes of a bad week, and for a regulated professional the referral that follows a charge can cost more than the sentence, or even the job itself. We treat every client with respect, and give honest advice on behalf of the client, not the file. This work sits alongside our practice defending regulated professionals. Discretion is built in. Nothing about a matter leaves this firm.
We offer confidential consultations, in person at our London offices or remotely by secure call. Initial enquiries are handled discreetly and quickly.
If the police have asked you to attend an interview about messages you sent, do not delete anything and do not explain yourself without advice. The thread is the evidence, and it is evidence in both directions.
Yes. Section 1 of the Malicious Communications Act 1988 remains in force. Section 189 of the Online Safety Act 2023 repealed the limbs covering threats and false information with effect from 31 January 2024, leaving the offence of sending an indecent or grossly offensive message, or article, with the purpose of causing distress or anxiety.
Two years' imprisonment or a fine on conviction on indictment, and twelve months or a fine on summary conviction. Where the same conduct is charged under section 127 of the Communications Act 2003 the maximum is six months, and where it is charged as a threatening communication under section 181 of the Online Safety Act 2023 the maximum is five years.
The 1988 Act offence requires a purpose of causing distress or anxiety and is not limited to public electronic networks, so it covers letters and articles. Section 127 requires no such purpose but applies only to messages sent over a public electronic communications network, and it can only be tried in the magistrates' court.
Section 181 of the Online Safety Act 2023. A person commits it by sending a message conveying a threat of death or serious harm, intending an individual to fear the threat would be carried out, or being reckless as to whether they would. Serious harm covers grievous bodily harm, rape, assault by penetration and serious financial loss. The maximum is five years on indictment.
Yes. The offence under the 1988 Act is complete on sending. Nobody has to receive the message, read it, or be caused any distress by it.
Not on its own. In DPP v Collins [2006] UKHL 40 the House of Lords held that the question is judged by the standards of an open and just multi-racial society, in context, and asks whether the message was couched in terms liable to cause gross offence to those to whom it relates. Offensive, rude or distasteful falls short of grossly offensive.
For section 127 of the Communications Act 2003 and section 179 of the Online Safety Act 2023, proceedings must be brought within six months of the date the prosecutor obtained evidence sufficient to justify them, and within three years of the offence in any event. The offences under the 1988 Act and section 181 are triable either way and are not subject to that limit.
No, and it creates a second and far more serious problem. Material is routinely recovered from the other device, from backups or from the account, and deleting it after an allegation can support a charge of perverting the course of justice, which carries a maximum of life. Our guide to perverting the course of justice sets out where that line sits.
A charge, and in many cases an arrest, is reportable to most regulators, and the regulatory process runs on its own timetable rather than waiting for the criminal one. For a regulated professional the referral is frequently the more serious consequence, which is a reason to deal with the criminal allegation at the pre-charge stage rather than after it has been made. We cover how the two run alongside each other in our guide to facing a criminal allegation as a regulated professional.
Not without advice and not without disclosure, and the choice between answering and a prepared statement is itself a decision worth taking properly. The exchange is usually recoverable in full, and an account given before anyone has seen it commits a suspect to a version of events that the thread may contradict in detail, which is then put to them as a lie.
Lex Vindico Group is regulated by the Solicitors Regulation Authority. We represent individuals nationally across England and Wales in criminal, regulatory, and parallel-proceedings defence at every stage, and most decisively, at the pre-charge stage.
This article is written by Akram Mula, LLM, Solicitor Advocate and CPS-approved Prosecutor, founder of Lex Vindico Group. It is general legal information about communications offences, not legal advice on any specific case. For advice on your specific circumstances, contact our team directly.
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