Malicious Communications Act – A Case Study
Under the Malicious Communications Act 1988 it is an offence for any person to send another person a letter, electronic communication or article of any description which intends to cause distress or anxiety to the recipient.
The offence carries a maximum sentence of 2 years’ imprisonment.
Amy works as a painter. As she accurately described to me during our initial call: she paints blood, not flowers. Amy advised she was influenced to begin her painting career by Jenny Saville. She enjoys the controversy her work creates.
Amy had an interview for a commission on a new painting for which she was particularly nervous. After a stressful week with little sleep, the interview came and went and she awaited a response.
After the interview had finished, Amy decided to text a photo of the picture which was the inspiration behind the painting, should she be commissioned. She texted this to her mum. (It’s important to remember here that Amy’s inspiration is “blood; not flowers”).
Amy then decided to go and meet some friends in her local town for a drink. She enjoyed an evening out and on her walk home she was stopped and offered some leaflets regarding converting to Islam. Amy wasn’t interested but took a leaflet and put it in her coat pocket to be polite.
When Amy arrived home, intoxicated, she woke her mum up which in turn started an argument. The stress and pressure of the interview became too much for Amy and once she began arguing with her mother she began to release her stress by throwing cupboard items onto the kitchen floor whilst arguing with her mum. This resulted in Amy’s mother calling the police, hoping to remove her from the situation and calm her.
Amy was arrested and taken to the police station, where she stayed overnight and was interviewed the next morning. Even though Amy’s mum had only called the police because of the argument, the police began to interview her regarding the Islamic leaflet found in her pocket, and the picture she had sent to her mum the afternoon before.
Amy was given a caution for sending an offensive message with intent to cause distress or anxiety. Confused, she was lead to believe this caution was a “slap on the wrist” and would mean she could leave the police station and go home with the matter concluded. She therefore, not understanding the process, signed the paperwork and left the police station.
Once Amy got home and explained what had happened to her mum, they began to do some research regarding cautions and soon realised that whilst a caution is not a criminal record, it is a spent conviction and appears on DBS checks and enhanced checks for 6 years.
Amy’s mum decided to then call criminal defence solicitors Forrest Williams for advice on what to do. We explained that whilst not reading a caution before accepting it isn’t enough grounds to remove a caution, we certainly had a case in that Amy had accepted a caution for intending to cause distress or anxiety to her mum when Amy had never accepted this was the case.
We made an application to the police on Amy’s behalf outlining the circumstances behind the alleged offence, and submitted that Amy had never intended to cause distress or anxiety by sending that picture to her mum as it was merely a picture relating to her artwork. In fact, the image in question that Amy sent had previously been used in university coursework which resulted in her winning a highly respected art award.
Thankfully, the police reviewed this and agreed that the caution had been administered unlawfully. The caution was removed from Amy’s record and she was delighted at the outcome we had managed to secure.
If you need help for a case involving the Malicious Communications Act, our expert team can help. Call us now on 01623 600645.