Malicious Phone Calls
1.Introduction to the legislation
The two main pieces of legislation to be aware of are Section 43 of the Telecommunications
Act 1984 and the Protection from Harassment Act 1997.
2.Section 43 Telecommunications Act 1984
(1) A person who -
(a) sends, by means of a public telecommunication system,
a message or other matter that is grossly offensive or of an indecent, obscene
or menacing character; or
(b) sends by those means, for the purpose of causing annoyance,
inconvenience or needless anxiety to another, a message that he knows to
be false or persistently makes use for that purpose of a public telecommunication
shall be guilty of an offence and liable on summary conviction to imprisonment
for a term not exceeding six months or a fine not exceeding level 5 on the
standard scale or both.
The offence therefore consists of either:
a) sending a message or other matter that is grossly offensive
or of an indecent, obscene or menacing character,
b) sending a message known to be false for the purpose
of causing annoyance, inconvenience or needless anxiety, or
c) persistently making use of a public telecommunication
system for the purpose of causing annoyance, inconvenience or needless anxiety.
We shall look at each of these in turn.
2.b Message or other matter that is grossly offensive,
or of an indecent, obscene or menacing character
These words all carry their ordinary meaning, and it would
be a matter of fact for the magistrates to decide whether the message was
offensive etc in any given case. However there is a definition for obscene
used in the Obscene Publication Acts which also applies here. A message
etc is deemed to be obscene if its effect is such as to tend to deprave
and corrupt persons who are likely having regard to all relevant circumstances,
to read, see or hear the matter contained or embodied in it!
It appears from the wording that a message which would
be merely offensive would not constitute an offence it must be grossly
offensive. The same guidelines apply here as to those to follow regarding
sending letters or e-mails
If you phoned up an HLS worker and told them that you thought they were
an animal murderer this may be offensive but not grossly so. On the other
hand, if you likened them to a Nazi this might well be deemed to be grossly
offensive. If you told them you would protest at the lab every day to let
them know what you think this could not be deemed menacing, but if you promised
a home demo it probably would be.
The borderline between what is acceptable freedom of expression
and what constitutes an offence will not always be clear. The Human Rights
Act 1998 applies to this act as it does to any other piece of legislation,
so it must be interpreted consistently with your European Convention right
to freedom of expression. But this is not an absolute right and it my be
restricted in order to prevent crime or to protect the rights of others.
The law does not make it an offence to make phone calls
in the middle of the night. However the timing of the call could be a relevant
factor for the court in deciding whether or not it was of an offensive or
menacing character. For example, a court might construe a single silent
phone call to be menacing at 2am but not at 2pm.
2.c Sending a message known to be false for the purpose of
causing annoyance, inconvenience or needless anxiety
- Note here that the offender must actually know the message to be false.
So for example, if you phoned HLS to convey the mistakenly held belief that
Brian Cass was dead you would not be guilty of an offence under this section
if you actually believed this to be the case (even if such a belief were unreasonable).
- The offender must also intend that "annoyance, inconvenience, or needless
anxiety" is caused by sending the false message. It is not enough fo
the prosecution to show that such annoyance is the likely outcome of your
phone call. If you can convince the court that you did not intend such annoyance
etc, then they must acqut you even if people were annoyed or inconvenienced
by the call. Note the contrast here to Section 5 Public Order Act 1986, where
the prosecution only need to prove that harassment, alarm or distress was
likely to be caused.
2.d Persistently making use of a public telecommunication
system for the purpose of causing annoyance, inconvenience or needless anxiety
- This clearly covers situations where someone repeatedly calls the same number,
for example in order to jam the phone line. No obscene words etc need to be
said - the offence is constituted by the repeated phone calls themselves.
The repeated use need not be to the same number. If you
spent the whole day ringing various extension numbers of a company in order
to cause annoyance etc then the offence would be complete.
An offence could be committed under this section by someone
making repeated silent phonecalls to a list of separate residential numbers.
All of the above offences could be committed by sending
text messages from a mobile phone or by sending faxes. The technique of
sending a black fax would not be covered by this section unless it was done
2.e Points to note on Section 43
None of the offences listed above actually require there
to be a victim who has been caused anxiety etc. The offence is complete
if your intention is to cause such anxiety. For example if you left a message
on an answer-phone which was intercepted by the police before the victim
answered it, you could still be liable.
All offences are triable in the magistrates court
only, and are punishable by up to 6 months imprisonment. Like offences under
Section 1 of the Malicious Communications
, these are not arrestable
. So the police can only serve you with a summons to appear
in court if they suspect you of an offence under this section.
2.f Examples of behaviour which could be prosecuted under
Repeated silent phone calls or text messages to an individual
or numerous individuals eg employees of a company
Ringing someone up with information you know to be false
eg pretending to be a doctor from the hospital and saying that their spouse
has been involved in an accident.
Sending a text message to an individual containing obscene
language (indecent or obscene)
Phoning someone up and saying you will demonstrate at
their house if they continue to work at HLS (menacing)
Phoning someone up and telling them they are no different
from Nazis working in a concentration camp (grossly offensive)
There is no statutory defence that your conduct was reasonable,
a defence which is available, for example, under the Malicious Communications
Act 1988 or under Section 5 of the Public Order Act 1986. But, as with all
legislation, the court has to interpret this law consistently with your
human rights and must therefore have regard to your freedom of expression
when deciding whether or not you have committed an offence.
3. Sections 2 and 4, Protection from Harassment Act 1997
Section 2 of the Protection from Harassment Act 1997 makes it an offence
to pursue a course of conduct which causes another person harassment, alarm
or distress. Section 4 of the Act makes it an offence to pursue a course of
conduct which puts another in fear of violence.
3.a Section 2 Protection from Harassment Act 1997
The prosecution would need to show that you had caused
harassment, alarm or distress to another person on at least two occasions.
- The victim of the harassment would normally need to be the same person on
each occasion, although the
courts have ruled that the victims can be different if they are part of
a definable, close-knit group.
This charge might be preferable where the prosecution
cannot prove that you have sent a grossly offensive or indecent message,
and simply need to show that you have caused harassment on more than one
- Unlike under Section 43 you have a statutory defence that your conduct was
reasonable in all the circumstances. For example you could argue that you
were provoked or that you were exercising your human right to protest.
- Section 2 is triable before magistrates only and the maximum sentence is
12 months' imprisonment. It is an arrestable
3.b Section 4 Protection from Harassment Act 1997
- The prosecution would need to show that you had caused another to fear violence
on at least two occasions.
- The victim would need to be the same person on each occasion.
- Unlike under Section 43 you have a statutory defence under this section
that your conduct was reasonable, but this is more restrictive than the defence
available under Section 2 above. It must be "reasonable for the protection
of yourself or another or for the protection of yourself or anothers
- Section 4 is triable either way. If you are convicted before magistrates,
the maximum penalty is 6 months imprisonment, whereas if you are convicted
by a jury the maximum penalty is 5 years imprisonment. It is an arrestable
3.c Points to Note on Sections 2 and 4
- Unlike under Section 43, the prosecution do not have to show that you intended
to cause harassment or fear of violence- they need only show that a reasonable
person would think that the conduct amounted to harassment / fear of violence.
- Unlike under Section 43, Sections 2 and 4 require that there is an actual
victim willing to give evidence that you have caused them harassment or put
them in fear of violence. Where no victim is available to testify, then you
are more likely to be charged under Section 43.
- For more information on the Protection from Harassment Act 1997, check out
the section on harassment
in our legal booklet. For up to date information on how the law is currently
being applied in the courts, check our case
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