As Jason Asagba – believed to be the first person convicted of the new revenge porn offence – awaits sentence, the DPP has issued new guidance to prosecutors “to help them tackle” the offence. The purpose of the guidance is not immediately apparent, as it consists largely of a list of recently concluded or ongoing revenge porn prosecutions followed by a description of the ingredients of the offence.
One interpretation is that it is intended to increase the number of cases being prosecuted, in order to justify the introduction of new legislation which many felt duplicated existing offences. So whereas it was reported only a few weeks ago – and blogged on by my colleague Irene McMillan - that reported incidents of revenge porn were on the rise, the new guidance seems likely to be a symptom of concern at a high level that the increase in allegations being made is not reflected in subsequent prosecutions.
Mr Asagba pleaded guilty in May to disclosing private sexual photographs and films with intent to cause distress, contrary to section 33(1) of the Criminal Justice and Courts Act 2015 (“CJCA”). The new guidance, issued on 7 August, discloses that a further 10 individuals have been convicted during June and July. Half have already been sentenced, of whom one was immediately imprisoned, three received suspended sentences of imprisonment and the remaining one a community order.
On issuing the guidance, Alison Saunders (DPP), reasserted the view that creating an offence to directly combat a specific mischief acts to reassure victims that the authorities take their predicament seriously. However, she went on to say that “it is too early for us to be able to say what impact this is having on the number of prosecutions” and that the guidance aims to provide prosecutors with the “benefit of learning from their colleagues…to help improve our expertise in using the new legislation”. It is not hard to see such comments as exhorting prosecutors to use the new offence more widely.
The guidance goes on to set out the provisions not only of the new offence, but also of section 1 Malicious Communications Act 1988 and section 127 Communications Act 2003 (the provisions used prior to the CJCA). This only serves to highlight the overlap between the three offences and may go some way to explaining why prosecutors appear not to have embraced the new offence enthusiastically. This overlap was just one of a number of criticisms made of the new offence (see, for example, blogs by my colleagues Sandra Paul and Nicholas Dent). It is also notable that none of the sentences described above exceed the statutory maximums for the Malicious Communications Act or Communications Act offences. Nevertheless, the DPP has sent out a message and one can expect to see a resultant rise in revenge porn cases reaching the courts.