What guidance do UK police forces use to decide arrests under section 127 and the Malicious Communications Act?
Executive summary
Police decisions to arrest under section 127 of the Communications Act 2003 and section 1 of the Malicious Communications Act 1988 are governed not by a single national arrest rule but by prosecutorial guidance, force-level recording practices and operational judgment about whether communications meet criminal thresholds such as “grossly offensive”, “menacing” or “intended to cause distress”, as set out in Crown Prosecution Service guidance and case law [1]. Public debate over rising arrest figures is complicated by patchy central statistics, differing force recording practices and media framing that can overstate arrests as automatic punishment for offensive speech [2] [3] [4].
1. Legal thresholds prosecutors and police use: CPS guidance and case law
The primary national text guiding whether conduct should be treated as a communications offence is the CPS “Communications Offences” guidance, which instructs prosecutors — and by extension influences police charging decisions — to test communications against statutory elements (e.g., “grossly offensive”, “menacing”) and to balance Article 10 ECHR protections for free expression with the need for restrictions to be necessary and proportionate [1]. The CPS guidance flags key authorities (for example DPP v Collins) and requires referral to senior prosecutors for cases involving public figures, signalling that arrests and charges should be scrutinised for proportionality and public interest [1].
2. How police translate prosecutorial guidance into arrest decisions
Police forces assess incoming reports against criminal thresholds and the evidential and public-interest tests used by prosecutors; where officers believe an offence under s.127 or s.1 may have occurred they can arrest to investigate or secure evidence, and later consult CPS guidance on charging [4] [1]. Operational practice varies: some arrests are recorded under specific offence codes while others are logged against “Reason for Arrest” categories or released without charge, meaning custody and arrest data are heterogeneous and require FOI requests for local breakdowns [3] [5].
3. Data gaps and the controversy over arrest numbers
There is no single published government dataset listing arrests by individual communications offence, so national figures cited in media reporting (for example the Times’ claim of ~12,000 arrests in 2023) were reconstructed from FOI returns to individual forces rather than a central government release [2]. The Metropolitan Police and other forces do release FOI disclosures and local datasets, but differences in coding and the use of RFAs mean aggregate comparisons across forces and years are fraught [6] [3] [7].
4. Context: what arrests typically cover, and common misconceptions
Arrests under these statutes are not solely for offensive opinion; police point out they cover threats, hoax emergency calls, harassment, hate speech and communications integral to domestic-abuse or public-safety investigations — categories where arrest can be an investigative necessity rather than a punitive instant consequence for mere offence [4] [2]. Critics warn, however, that antiquated statutory wording (s.127 and the 1988 Act were drafted pre-internet) and broad interpretations risk chilling legitimate expression, a tension flagged in Law Commission commentary and academic commentary about one-to-one versus broadcasting contexts [8] [9].
5. Recent statutory and policy shifts that affect arrests
Parliamentary and legislative changes have altered the landscape: amendments to s.127 and the Online Safety Act 2023 have narrowed some offences (for example replacing s.127 with more targeted offences) while leaving the grossly offensive limb in force, and prosecutorial guidance has been regularly updated to reflect those changes and ECHR considerations [10] [8] [1]. These reforms mean forces must continually adjust charging thresholds and training, producing uneven local implementation during transitional periods [1] [10].
6. Verdict: a mixed picture of structured guidance and local discretion
Decisions to arrest under s.127 and the Malicious Communications Act are driven by CPS legal tests and case law, but in practice hinge on police judgment, local recording practices and investigatory needs; the absence of centralised arrest data and disparate coding practices fuels public controversy and media narratives that can exaggerate or oversimplify what arrests represent [1] [3] [2]. Where the public record is thin, FOI disclosures from individual forces, CPS guidance and judicial authorities remain the best sources to judge whether particular arrests met prosecutorial thresholds [6] [5] [1].