New guidelines were published on 21st August by the DPP on how to proceed with ‘hate crimes’ suggesting that the CPS has formally recognised the far-reaching impact online ‘hate crimes’ may have. In response to this problem, they have promised to prosecute such crimes as robustly as offline ‘hate crimes’.
To achieve this aim, the CPS will rely on a revised guidance on the prosecution of social media cases. This guidance is to be used by prosecutors tasked with making a charging decision and/or to advise the police on their investigation.
The guidance makes clear that all forms of online communication, including emails, text, pictures, retweets and sharing on social media platforms, are covered. There is greater recognition of the diverse types of online ‘hate crimes’. For example, individuals who encourage grossly offensive, indecent, obscene or false communication through tweets/retweets, creation of derogatory hashtags or doxing may be charged of a criminal offence under section 44 of the Serious Crime Act 2007.
Cyberstalking in ‘hate crime’
“Cyberstalking”, although not a criminal offence in its own right, is a form of online harassment and may be used as an outlet to exert power and control in committing Violence against Women and Girls (VAWG) offences. The guidance sets out a number of examples of cyberstalking including ‘baiting’, posting ‘photoshopped’/altered images of complainants online, creating false profiles on social media, hacking, monitoring and controlling the complainant’s accounts. Threats of serious injury or rape on women have previously been communicated by sending a picture or a video of another being subjected to such assaults.
If a prosecutor makes a decision not to prosecute, they are reminded to advise on whether it is appropriate for other orders be applied for, such as Prevention Orders, Criminal Behaviour Orders, Restraining Orders and Domestic Violence Protection Notices and Domestic Violence Protection Orders, as a means to restrain a person from their use of social media.
Encouragement is also given to persons subjected to abuse online to report the abuse to the police and/or to the social media platform, and to retain evidence by taking screenshots of the offensive communication.
Whilst this guidance does not reflect a change in the law, it does signal a change in approach by the CPS to these types of offences. It will only become clear in the next few months whether the CPS and the police will adopt a proportionate approach to the prosecution of these offences.
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Cheryl Low, Solicitor