Select communications offences and concerns over free speech

Approximate read time: 10 minutes

On 17 July 2025, the House of Lords is scheduled to debate the following motion in Grand Committee:

Lord Lebedev (Crossbench) to ask His Majesty’s government what estimate they have made of the number of people arrested daily for non-threatening, online communication offences, and what assessment they have made of the implications of such arrests for freedom of speech.

1.   Relevant communications offences

In UK law there are a number of communications offences, some of which target behaviours that could be deemed non-threatening. While these offences cover communications taking place online, they also cover other forms of communication such as letters.

For example, under section 1 of the Malicious Communications Act 1988 it is an offence to send a malicious communication, such as a letter, electronic communication or article of any description, which is indecent or grossly offensive in nature and intends to cause distress or anxiety. The offence is triable either way, meaning it can be heard in either the crown court or a magistrates court. An individual convicted on indictment (found guilty in a crown court) is liable to a prison sentence of up to two years, a fine, or both. Those who receive a summary conviction (from a magistrates court) can be liable to a lesser prison sentence of up to 12 months, a fine, or both.

Section 127 of the Communications Act 2003 relates to improper use of public electronic communications networks (ECNs). Both the internet and mobile phone networks widely available to the public, as well as social media platforms which operate via the internet, count as ECNs. Section 127 makes it an offence to send by means of a public ECN a message or other matter that is grossly offensive or of an indecent or menacing character. It is also an offence to make use of an ECN to cause annoyance, inconvenience or needless anxiety. A person guilty of an offence under section 127 can be liable on summary conviction to a term of imprisonment not exceeding six months, a fine, or both.

The Crown Prosecution Service (CPS) has published guidance on communication offences, which covers both the 1988 and 2003 acts.^[1] The guidance states that prosecutors should only proceed with such offences where the interference with freedom of expression is necessary and proportionate.

The CPS’s guidance also covers part 10 of the Online Safety Act 2023, which came into force on 31 January 2024. Part 10 includes the following communication offences, which may be considered ‘threatening’ or ‘non-threatening’:

• sending false communications
• sending threatening communications
• sending or showing flashing images electronically to people with epilepsy intending to cause them harm (‘epilepsy trolling’)
• encouraging or assisting serious self-harm
• sending a photograph or film of a person’s genitals (‘cyberflashing’)
• sharing or threatening to share intimate photographs or film

2.   Data on arrests and convictions

The government does not publish data on the number of arrests made for online malicious communication offences.^[2] The Home Office does publish data on arrests, but it is by offence group rather than the individual offence type.^[3] As a result, centrally held government data is not available to show the number of people arrested under section 1 of the Malicious Communications Act 1988 and section 127 of the Communications Act 2003 in recent years.

However, in April 2025, the Times published an article using data collated from freedom of information requests made to police forces setting out the number of arrests made under section 1 and section 127 (not all forces provided data to the Times).^[4] The authors also used Ministry of Justice data to show the number of convictions for the offences.

The authors reported that police officers are making over 12,000 arrests a year under the legislation, equating to over 30 a day. They also claimed that the number of arrests in 2023 represented an almost 58% increase since before the pandemic. It said that in 2019 forces had recorded 7,734 arrests.

Graph 1: Number of arrests made under section 127 of the Communications Act 2003 and section 1 of the Malicious Communications Act 1988 by 35 police forces in England and Wales from 2017 to 2023

However, the authors reported that their analysis of Ministry of Justice data showed that the number of convictions and sentencings for the relevant offences had decreased “dramatically” over the past decade, as shown below in graph 2.

Graph 2: Number of people sentenced for offences under section 127 of the Communications Act 2003 and section 1 of the Malicious Communications Act 1988 from 2010 to 2023

The authors explained that there are several reasons why an arrest may not result in a sentence, such as out-of-court resolutions, but said the “most common is “evidential difficulties””, specifically that the victim does not support taking further action.

Looking at which police forces made the most arrests for the relevant offences, the authors said that the Metropolitan Police Service, the UK’s largest police force, was highest (1,709), followed by West Yorkshire (963) and Thames Valley (939). However, when adjusted for population, they said that Leicestershire police had the highest rate of arrests per 100,000 with 83. Cumbria police had the second highest rate of arrests at 58, followed by Northamptonshire with 50. An interactive table comparing the data across the 35 forces the Times provided data for is available in the article.^[5]

3.   Impact on free speech

In response to the Times’ article, several stakeholders have argued that the number of arrests under section 1 of the Malicious Communications Act 1988 and section 127 of the Communications Act 2003 is problematic. For example, Jake Hurfurt, head of research and investigations at Big Brother Watch, a civil liberties group, said that the increase in arrests was “seriously concerning”.^[6] He warned against “heavy-handed use of vague communications offences”, saying it represented a threat to freedom of expression. Mr Hurfurt also called on the home secretary to launch an independent review into arrests for online speech and the health of free expression in the UK. Big Brother Watch has also previously argued that offences under the acts have “intolerably low thresholds” and “unduly restrict freedom of expression”.^[7]

Lord Young of Acton (Conservative), founder and general secretary of the Free Speech Union, also raised concerns.^[8] He accused police forces of being “over-zealous in pursuing people for alleged speech crimes” and argued that they were wasting time that could be better spent on other offences. Mr Young also said that his organisation was helping half a dozen people who were being prosecuted for offences under section 127 or section 1. He said this included David Wootton, who is appealing against a conviction for dressing up as the Manchester Arena bomber for a Halloween party and posting images of himself on social media.^[9]

A spokesperson for Leicestershire police (the force the Times reported had the highest rates of arrests for the relevant offences per 100,000) clarified that offences under section 127 and section 1 can include any form of communication and may also be “serious domestic abuse-related crimes”.^[10] Commenting further, they said:

Where a malicious communications offence is believed to have taken place, appropriate action will be taken. Our staff must consider whether the communication may be an expression which would be considered to be freedom of speech. While it may be unacceptable to be rude or offensive it is not unlawful—unless the communication is ‘grossly offensive’.

Freedom of speech is enshrined within our society, and while communications may be rude, impolite or offensive, they may not be unlawful. Decisions are made taking this into consideration and if found not to be unlawful, will not be recorded as a crime.^[11]

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