The Director of Public Prosecutions for England and Wales has issued the following guidelines for those considering prosecuting someone for Internet trolling. If prosecutors do not follow these guidelines they could be subject to an investigation from the Independent Police Complaints Commission.
Prosecutors may only start a prosecution if a case satisfies the test set out in the Code for Crown Prosecutors. This test has two stages: the first is the requirement of evidential sufficiency and the second involves consideration of the public interest.
As far as the evidential stage is concerned, a prosecutor must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction. This means that an objective, impartial and reasonable jury (or bench of magistrates or judge sitting alone), properly directed and acting in accordance with the law, is more likely than not to convict. It is an objective test based upon the prosecutor’s assessment of the evidence (including any information that he or she has about the defence).
A case which does not pass the evidential stage must not proceed, no matter how serious or sensitive it may be.
It has never been the rule that a prosecution will automatically take place once the evidential stage is satisfied. In every case where there is sufficient evidence to justify a prosecution, prosecutors must go on to consider whether a prosecution is required in the public interest.
Every case must be considered on its own individual facts and merits. No prospective immunity from criminal prosecution can ever be given and nothing in these guidelines should be read as suggesting otherwise.
In the majority of cases, prosecutors should only decide whether to prosecute after the investigation has been completed. However, there will be cases occasionally where it is clear, prior to the collection and consideration of all the likely evidence, that the public interest does not require a prosecution. In these cases, prosecutors may decide that the case should not proceed further.
Cases involving the sending of communications via social media are likely to benefit from early consultation between police and prosecutors, and the police are encouraged to contact the CPS at an early stage of the investigation.
These guidelines form part of the Crown Prosecution Service’s guidelines on prosecuting cases involving communications sent via social media, which were issued in June 2013. Prosecutors should be aware that if they do not follow these guidelines they could be investigated by the Independent Police Complains Commission and/or have any prosecution dismissed by a judge.