Criminal Justice Bill: Encouraging or assisting serious self-harm
Updated 23 February 2024
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What are we going to do?
The Online Safety Act 2023 gave partial effect to the Law Commission recommendation by introducing a new offence of encouraging or assisting serious self-harm by means of verbal or electronic communications, publications or correspondence (“the communications offence”).
To give full effect to the Law Commission recommendation, the bill will introduce a broader offence of encouraging or assisting serious self-harm to cover all means by which serious self-harm may be encouraged or assisted.
How are we going to do it?
For further information on these measures, please consult the published explanatory notes.
The bill will repeal the communications offence in section 184 of the Online Safety Act (in relation to England and Wales only) and replace it with a broader one that covers encouraging or assisting serious self-harm both by means of communication and in any other way.
Background
Encouragement of suicide or self-harm falling short of suicide is a matter of great concern. It is already an offence, under the Suicide Act 1961, to do an act capable of encouraging or assisting another person to take, or attempt to take, their own life. In their Modernising Communications Offences report, published in July 2021, the Law Commission considered how the criminal law might best tackle encouragement of self-harm. Recognising that any criminal law solution in this complex area must be properly constrained to avoid criminalising vulnerable people who share their experiences of self-harm or those offering them support, the Commission recommended a narrow offence, modelled on the Suicide Act offence, that targets the deliberate encouragement or assistance of serious self-harm.
Frequently asked questions
The Online Safety Act already includes an offence of encouraging or assisting serious self-harm. What additional behaviour will the broader offence cover?
The broader offence covers intentionally doing an act capable of encouraging or assisting the serious self-harm of another person by any means, including direct assistance such as giving someone a blade with which to self-harm. Unlike the communications offence in the Online Safety Act it is not limited to encouraging or assisting serious self-harm by means of verbal or electronic communications, publications or correspondence.
Is the threshold for serious self-harm the same?
Yes, “serious self-harm” means self-harm amounting to grievous bodily harm within the meaning of the Offences Against the Person Act 1861. That is the threshold recommended by the Law Commission.
Will the broader offence still capture eating disorders?
Yes - the broader offence will cover the encouragement of any form of serious self-harm where there is an intent for the other person to seriously self-harm. This includes encouraging or assisting harmful eating disorder behaviours which, when engaged in by a person suffering an eating disorder, meet the threshold of serious self-harm.
Serious self-harm includes all harmful conduct (including omissions) to ensure that, for example, encouraging someone to not eat, not drink or not take required prescription medication are all covered by the offence where the threshold is reached.
Does the broader offence cover glorifying or glamourising self-harm?
No. As the Law Commission rightly recognised, such an approach would be too wide and would risk criminalising vulnerable people who share their experiences of self-harm with no intention of encouraging others to self-harm.
Shouldn’t the offence refer to malicious intent to prevent vulnerable people being criminalised?
The Law Commission considered this carefully and recommended two key elements to ensure that the offence does not disproportionately impact vulnerable people who harm themselves: (1) that the defendant’s act must be intended to encourage or assist the serious self-harm of another person; and (2) that the defendant’s act is capable of encouraging or assisting the serious self-harm of another person.
Serious self-harm means self-harm amounting to grievous bodily harm. The broader offence, like the communications offence, includes both those elements. It targets those who intend by their act to cause another person to seriously self-harm. If a person does not intend to encourage or assist serious self-harm, then no offence is committed.
Does the broader offence infringe the right to freedom of expression?
No. The offence covers only those who intend for their act to encourage or assist another person to seriously self-harm. Sharing experiences of self-harm, or simply discussing the issue, without such intention will not be a criminal offence. The broader offence therefore does not go further than is necessary to protect the public from such harmful acts and is therefore necessary and proportionate.
How can you be sure that helpful and supportive self-harm material is not caught by this offence?
The broader offence includes the same two key elements that the Law Commission were confident will constrain the offence to only the most culpable offending, namely that a person’s act must be intended to encourage or assist the serious self-harm of another person, and that serious self-harm should amount to grievous bodily harm. If a person does not intend to encourage or assist serious self-harm, as is most likely to be the case with helpful and supportive material, then no offence will be committed.
What guidance will there be for prosecutors and the police to ensure that they are able to discern between people in distress and malicious actors encouraging serious self-harm?
As usual when a new offence is introduced, we will engage with all criminal justice agencies, including the police, the CPS and the judiciary, before the offence comes into force. It will be for those agencies to develop any necessary guidance through their respective training organisations, such as the College of Policing and the Judicial College.
The Online Safety Act offence extended to the UK. Why does the broader offence extend only to England and Wales?
The offence relates to devolved matters. We are consulting the devolved administrations about the broader offence (as we did with the communications offence). Subject to legislative consent, we will bring forward amendments at a later stage if they decide that it should extend to their jurisdictions.
For further information on these measures, please consult the published explanatory notes.