‘(1) In section 1 of the Malicious Communications Act 1988 (offence of sending letters etc with intent to cause distress or anxiety), for subsection (4) substitute—
“(4) A person guilty of an offence under this section is liable—
(a) on conviction on indictment to imprisonment for a term not exceeding two years or a fine (or both);
(b) on summary conviction to imprisonment for a term not exceeding 12 months or a fine (or both).
(5) In relation to an offence committed before section 154(1) of the Criminal Justice Act 2003 comes into force, the reference in subsection (4)(b) to 12 months is to be read as reference to six months.
(6) In relation to an offence committed before section 85 of the Legal Aid Sentencing and Punishment of Offenders Act 2012 comes into force, the reference in subsection (4)(b) to a fine is to be read as a reference to a fine not exceeding the statutory maximum.”
(2) The amendment made by this section applies only in relation to an offence committed on or after the day on which it comes into force.’.—(Angie Bray.)
This amendment makes the offence in section 1 of the Malicious Communications Act 1988 of sending communications with intent to cause distress or anxiety an either-way offence and provides that the penalty on conviction on indictment is imprisonment for a term not exceeding two years or a fine (or both).
I beg to move, That the clause be read a Second time.
It is a pleasure to be serving under your chairmanship, Mr Crausby. This is the first time in the four years that I have been a Member of Parliament that I find myself moving a new clause to a Government Bill, so please bear with me if I put a foot wrong, or even a tiny toe. It is also slightly daunting to be proposing a change to the law, however minor, before a Committee full of lawyers and legal experts, but I intend to forge ahead nevertheless. I do not need to explain to you, Mr Crausby, or to such august company in the Committee what an either-way offence is, but I will lay out my reasons for wanting specifically to change offences under the Malicious Communications Act 1988 from summary only to either way.
My interest was first aroused by a visit to my surgery in Ealing by constituents who were desperately trying to understand why justice had failed to be done for their young daughter, who had been receiving wholly unwanted explicit sexual text messages from the husband of the mothers’ best friend. Such was the kick that he apparently got from sending those messages to her that he sometimes sent 30 a day.
That went on for a year or so. The young girl did not tell anyone, because she knew he was married to her mum’s friend, and did not want to upset anyone. She carried that torment on her young shoulders alone. Finally, the school got in touch with the parents to find out why their daughter’s work was going rapidly downhill. Was there a problem they could discuss? What was wrong with her? My constituents asked their daughter, but she said nothing was wrong.
Then, after a gap over the Christmas period, when the man started texting all over again, she finally broke down, utterly traumatised, and told everyone. He was arrested and admitted to all the texts he had sent. The Crown Prosecution Service looked at the texts that the girl had kept on her phone—she had deleted some, because they were so awful. The CPS recognised them immediately as grooming texts. The sender was 42, by the way, and she was just 14, although I understand the texting started when she was 13.
The CPS wanted, unsurprisingly, to get him, if it could, with the toughest sentence possible. As I understand the matter, it could not charge him under section 15 of the Sexual Offences Act 2003, which makes it an offence to groom a child and then meet them for the purposes of sexual activity, because there had been no such meeting of that kind. Instead, it went for the attempted offence, under the Criminal Attempts Act 1981. However, the judge deemed that there was too great a distance as to time or subsequent necessary actions for what happened to constitute an attempt. He had to dismiss the case, although he refused to award the defendant his costs. The only other avenue would have been to prosecute under the Malicious Communications Act 1988, but by the time the man had walked free from the Crown court the CPS could not proceed under that Act, because, as with all summary-only offences, there was a six-month time limit, and it had run out.
That is where I came in. Surely, the girl’s parents said to me, there must be a simpler way of taking people like that man to court. He had admitted to exceptionally malicious communications with their daughter; yet the only options available were either to prove that he had committed a serious crime, which they could not do, or go for a far lesser offence that did not really reflect the seriousness of what he had done and that was, in any case, time limited.
I promised to see whether there was a gap that could helpfully be filled. Not being well versed in the law, I sought the views of the police and the National Society for the Prevention of Cruelty to Children and took advice from several colleagues who have a legal background, including my right hon. Friend the Attorney-General. I was warned that I should not attempt to go for too much. The danger in creating new offences, I was told, is that they invariably bring unforeseen consequences, which scoop up many more who are not the intended target.
I hope that Committee members will agree that what I propose—simply making an offence under the Malicious Communications Act 1988 an either-way offence—is a small change that could have beneficial consequences. It would get rid of the six-month time limit and allow magistrates the discretion to decide whether individual cases are appropriate for their court, or so egregious that they should be sent to the Crown court, where a tougher sentence would be available.
As I have explained, my main motivation was the plight of my constituents, who came to see me after their bitter disappointment about what happened, or rather did not happen, with respect to their daughter. However, it is entirely possible that the change I propose would enable other types of malicious communication to be treated more severely, where appropriate, than is currently allowed. I am thinking in particular of the ever-increasing bullying that takes place on various social networks. Some of that is, of course, little more than teenagers having a go at each other. However, there are other occasions when the bullying is appalling and has a serious impact on victims—ruined lives and even suicide.
I would like to think that what I propose could help to act as a deterrent, and as an avenue for tougher sentencing than is now available. I hope that I can get the Committee’s support for the new clause. I believe that I am proposing a reasonable and workable change to the law.
I can be very brief. I have the greatest sympathy for the family and the victim in the case that the hon. Lady has set out. The Opposition have no intention of opposing the new clause, which, as she says, would be a relatively small change to the law. I have no issues with what she has said, but I have one or two questions for the Minister.
First, while the case cited is particularly horrid, it is only one case, and one is always reluctant to change the law on the basis of one case. Will the Minister set out whether he believes that that type of case, or other cases that will be caught by the new clause, is prevalent statistically, not just anecdotally? The Government need to establish that before they support the new clause.
Secondly, what is the Government’s rationale for supporting the new clause? It might be the same as the hon. Lady’s; it might be different. Is it about bringing such matters before a jury, or about the issue of time limits, which is dealt with here? Is it about stronger sentencing powers? What is the basis for their support?
Finally, what is the anticipated effect of the new clause, in terms of number of cases per year and therefore costs? We always have to look at that when we either invent new offences or extend sentencing powers. I am sure that the Minister has thought about that.
I am sure that the Minister will answer the questions posed by the hon. Member for Hammersmith. Having discussed the matter with my hon. Friend the Member for Ealing Central and Acton, I know that the police are concerned. A number of cases that have come to their attention have not been prosecuted because, first, the six-month time limit came into play and, secondly, the offence has not gone on. The case referred to by my hon. Friend quite clearly had sexual connotations, but it had not gone on to form the choate offence of grooming under section 15 of the Sexual Offences Act 2003. Interestingly, we will have another debate about that later, under a new clause tabled by the hon. Member for Rotherham, which will be a helpful adjunct to what we are discussing.
Clearly, there is a growing trend, which we all see in our case load and from our experience as Members of Parliament, of the use of social media, not just as a benign way for people to get together, but as a malign force for many young people in our society. Gone are the days when, with the close of the school gates and the return to home, the young person can feel safe. That does not happen anymore. The internet is a public place, and that young person is vulnerable whether they are indoors or outdoors.
Social media happen in an instant. A course of conduct can be established in minutes as opposed to hours or days, which would have been the case before social media’s widespread use. It therefore seems eminently sensible for the law to evolve to meet a growing problem in our society.
It may well be that the new clause will not be the end of the matter; we will have to return from time to time to look at the way we have developed our law in relation to communications between individuals. However, at this stage, the new clause, which I note enjoys the Minister’s support, seems to be a proportionate and appropriate response, not just to one case, but to a growing body of evidence from the police regarding the frustration that they and the investigating authorities feel when detecting and prosecuting what is quite clearly criminal conduct that we do not tolerate in our society.
Any measure that protects young people and that allows them to speak out—let us not forget that the case concerned a young woman who did not feel able to speak out for a year, meaning that the boat was missed in terms of the six-month limit—has got to be in the interests not just of justice, but of the young people we are trying to protect. We must remember that, in the context of sexual offences and offences with a sexual overtone, it can often take a long time for someone to come forward, because they might feel embarrassed. If that person is young, they might feel a sense of guilt. Having heard the facts from my hon. Friend the Member for Ealing Central and Acton, I have no doubt that that was one of those classic cases. The new clause seems eminently sensible. I am happy not only to have put my name to it, but to have spoken in support of it today.
May I begin by congratulating my hon. Friend the Member for Ealing Central and Acton not just on the persuasive way in which she has made the case to the Committee today but, as she mentioned, for the even more persuasive way that she made the case to ministerial colleagues before the Committee’s deliberations. As she explained, new clause 20 seeks to make the offence under section of the Malicious Communications Act 1988 a triable either way offence and provides that the maximum sentence of imprisonment on conviction of indictment would be a term not exceeding two years. The hon. Member for Hammersmith quite rightly asked me to set out the Government’s rationale for supporting the new clause and I am happy to do so.
The offence under section 1 of the Malicious Communications Act of sending certain items with intent to cause distress or anxiety covers a wide range of communications and articles, including letters, writing of all descriptions, electronic communications, photographs and other images in a material form, tape recordings, films and video recordings. The offence is currently a summary-only offence. As my hon. Friend said, that means that prosecutions can only be brought in the magistrates courts. The maximum penalty for the offence is currently a fine of up to £5,000, or a custodial sentence of up to six months, or both, and prosecutions for the offence must be brought within six months from the time it was committed.
As my hon. Friend explained, her interest in this offence arises primarily because it might be used to prosecute adults who send sexually explicit texts or e-mails to children in an attempt to groom them but where it cannot be proved that the offence at section 15 of the Sexual Offences Act 2003 has been attempted. Moreover, separate representations have been made to Ministers that the six-month time limit hampers police investigations into other internet-related offences that might be charged under section 1, for example, in the context of what is known as trolling. Again, as my hon. Friend explained, new clause 20 would mean that cases under section 1 could be dealt with either in the magistrates court, or in the Crown court with an increased maximum penalty on conviction when tried on indictment of two years’ imprisonment, or an unlimited fine, or both. This will ensure that the penalty is proportionate to the seriousness of the offence.
The hon. Member for Hammersmith asked me about the impact on the system of this change. He will appreciate that because the matter is already an offence and already subject to a potential custodial penalty, there is already an impact on the system. We do not anticipate that additional penalties will have a significant impact, but there are cases which we believe justify a higher penalty than the six-month maximum and it is right to change the law to allow for that. Making the section 1 offence triable either way would also allow more time for investigations and for prosecutions to be brought, as has been said.
The hon. Gentleman makes the perfectly reasonable point that one case is not enough to make a change to the law. My hon. Friend quite rightly said that it is not simply the constituency case that she has come across that has driven her to do this but a perception—my hon. Friend the Member for South Swindon made this point too—that the world is changing and the law needs to change with it. We must recognise that the internet and mobile phones are increasingly used to send or attempt to send offensive and distressing material, including to vulnerable young people. Police and prosecutors need adequate time to respond to such offending and tough penalties should be available to the courts. The Government therefore welcome and accept the new clause.