19 January 2012
24.This section creates a new offence of making threatening communications.
25.Subsection (1) provides that a person who communicates material to another person where either of Condition A (set out in subsections (2)-(4)) or Condition B (set out in subsection (5)) is satisfied commits an offence.
26.Subsection (2) sets out the three tests which must be satisfied for Condition A to be met. These are:
that the material consists of, contains or implies a threat or incitement to carry out a seriously violent act against a person, or against persons of a particular description. Persons of a particular description may, for instance, be supporters of a particular football club or members of a particular religious group;
that the material or the communication of it would be likely to cause a reasonable person to suffer fear or alarm; and
that the person communicating the material either intends to cause fear or alarm, or is reckless as to whether the communication of the material would cause fear or alarm.
27.Subsection (3) provides that, for the purposes of Condition A, where the material consists of an image which depicts or implies the carrying out of a seriously violent act against a person or against persons of a particular description, and a reasonable person would be likely to consider that the image implies the carrying out of a seriously violent act against an actual person, or against actual persons of a particular description, the image may be taken to imply a threat or incitement as mentioned in subsection (2)(a). This ensures, for the avoidance of doubt, that a doctored image of, for example, a prominent public figure depicting an act which would cause serious injury to that person, and intended as an implied threat, would fall within the scope of Condition A.
28.Subsection (5) sets out the two tests which must be satisfied for Condition B to be met. These are:
that the material is threatening; and
that the person communicating it intends to stir up hatred on religious grounds.
29.This is wider than Condition A, in that it covers threats of any kind, and not only threats of serious violence. In contrast with Condition A, a person who is merely reckless that a communication would have the effect of stirring up religious hatred would not be caught by the offence. This ensures that a person making a communication containing what he or she intended to be legitimate comment or criticism of a religion or religious beliefs would not commit the offence solely because others considered it had the effect of stirring up hatred on religious grounds.
30.Subsection (6) provides that it is a defence for a person charged with an offence under this section to show that the communication of the material was, in the particular circumstances, reasonable. This would cover, for example, a person who communicates a threat of serious violence made by someone else for the purpose of alerting the police, a journalist reporting a threat of serious violence made by another person, or the communication of threats as part of an artistic or theatrical performance.
31.Subsection (7) specifies that the maximum penalty on indictment for an offence under this section is 5 years imprisonment or a fine or both.