R v BLC

An online post may constitute an offence under section 1 of the Malicious Communications Act 1988. The statutory language covers electronic communications transmitted or caused to be transmitted, including communications posted through a website. A message may be sent to a website controller and intended to be communicated onwards to the person targeted. The intended recipient may be an individual or a corporation.

The offence does not require the communication to contain a statement of fact. An untruthful comment or expression of opinion may be indecent or grossly offensive and may satisfy the offence if sent with the required purpose. Whether the elements are proved will ordinarily be for the jury.

The Crown appealed under section 58 of the Criminal Justice Act 2003 against a pre-trial ruling in an indictment charging BLC with offences under section 1 of the Malicious Communications Act 1988.

The charges concerned online posts which allegedly abused or criticised the recorder and advocates involved in BLC’s earlier trial. The trial judge held that website posts were not messages sent to another person for the purposes of section 1. The judge was also concerned that some posts expressed opinions rather than information. He ruled that the charged offences could not be proved.

After procedural confusion about the prosecution appeal, the judge granted an adjournment, lifted a stay for abuse of process, and the Crown gave the required notice and acquittal undertaking. The central issue was whether an online post could satisfy the sending and content requirements of section 1.

Disposition

1. The court granted leave and allowed the prosecution’s appeal. The trial judge’s ruling was wrong in law and was reversed. The trial may proceed.

2. Section 58 of the Criminal Justice Act 2003 does not require a ruling to be described as “terminating” or “terminatory” before it can be appealed. Those expressions are non-statutory shorthand. The prosecution’s obligation to give an acquittal undertaking explains why appeals will commonly concern rulings which may end a prosecution, but does not limit the statutory right of appeal. Following the adjournment, the Crown gave valid notice of appeal and the required undertaking. The court therefore had jurisdiction.

3. Section 1 of the Malicious Communications Act 1988 is deliberately broad. An electronic communication includes a communication made through an electronic communications network or in electronic form. Sending includes transmitting and causing transmission. A website post may therefore be a communication sent to the person or corporation controlling the website, while being intended to reach the person targeted by its contents.

4. A post may satisfy section 1 where its sender intends its indecent or grossly offensive contents or nature to be communicated to the targeted person, and sends it for the purpose of causing that person distress or anxiety. The provision does not require the content to be an assertion of fact. An opinion or comment may be untruthful, grossly offensive and malicious within the section. Whether the statutory elements are established for a particular post is ordinarily a matter for the jury.

5. The prosecution may seek to amend the indictment or schedule. The resumed Crown Court proceedings are to be heard by a different judge and at a different Crown Court centre. Reporting may continue only if BLC remains anonymised and cannot be identified.

• Court of Appeal (Criminal Division) — the Crown’s prosecution appeal was allowed and the pre-trial ruling was reversed: [2024] EWCA Crim 1186.
• Crown Court — the trial judge made a pre-trial ruling that the online posts could not prove the charged offences under section 1 of the Malicious Communications Act 1988; that ruling was reversed.