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Jo C.
Jo C., Barrister
Category: Law
Satisfied Customers: 71040
Experience:  Over 5 years in practice
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Hi there. My brother was looking after our 11 year old nephew

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Hi there.
My brother was looking after our 11 year old nephew a couple of months ago in the UK whilst his mum was in hospital. Our nephew's grandparents in Pakistan have created a lot of strife for the family. My brother stupidly encouraged our nephew to swear at his grandparents in Pakistan and wrote a script for him in which our nephew is sitting down and reading from a short script (written by my brother) in which he is swearing at his grandparents based on their behaviour which has caused problems with the family; this was recorded on his mobile phone and has been uploaded onto Youtube. I've asked my brother not to have been so foolish and remove the youtube video, however, he refuses to listen. Can any potential criminal action be taken against him for encouraging our nephew to record such material and could our nephew's parents take action against my brother for this ? Could the grandparents in Pakistan take any criminal or other type of legal action against him ? Apologies in having to write this, however, the specifics of the swearing is that the grandson has called him grandfather a pig and his grandmother a prostitute.
Thank you for your question. My name is ***** ***** I will try to help with this.
I really wouldn't worry about this. The police will not be remotely interested.
At its highest point it is a S5 public order and maybe a malicious communication possibly. If it is removed from Utube then the police are not going to waste resources tracking it down.
If he doesn't remove it then it will be easier for the police to find but your grandparents would still have to report it in the UK and the police would almost certainly say this is a civil matter.
There is no civil liability arising from this. In any event, they are not going to sue from Pakistan. Its very expensive to do that.
Can I clarify anything for you?
Customer: replied 3 years ago.

Thank you for the answer Jo. I was talking to someone who claimed they had legal knowledge, but what they said didn't sound convincing. I was told that as my brother was looking after our nephew at the time, he was supposed to be looking after him under the guise of 'in loco parentis' ( I think this means he had been entrusted in his care by his parents to my brother); therefore, if this recording was commissioned by my brother he would be liable for being prosecuted (after having read your initial response, I gather this is unlikely). However, could our other brother and his wife (nephew's parents) make a complaint to the police that their son was encouraged into making such a video and could there be any potential prosecution of this ?

You've mentioned a S5 public order/malicious communication as a potential action. Could the boy's mother ask for this and what potential criminal penalty could my brother face ? Sorry for asking what maybe the same and obvious inter-related questions, I'm trying to encourage my brother to remove the material, but he's being very brazen thinking that he will not face any form of prosecution for this. I'd like to know where he stands so hopefully I can eventually persuade him to remove this without him facing any criminal prosecution.

Well, you could argue he is in loco parentis but that doesn't change the situation here.
I wouldn't worry about what you've been told. You don't commit criminal offences just because you get a child to do something that its parents probably would not unless, of course, it amounts to an offence proper.
Its possibly a S5 or a malicious communication but not likely.
If he removes the material then they will not find the evidence.
Customer: replied 3 years ago.

Thanks Jo. Last question: if the police were to find the evidence, could he expect a criminal conviction of any sort, or at the very least, if he removed it at the request of the police, could that be deemed the end of the matter without any repercussions?

Yes, it is possible that they could just ask him to remove it.
It is possible that they could offer him a caution.
Its quite likely they would just get rid of it by saying its a civil matter though.
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