Divisional Court
| Date | 01 August 1986 |
| Published date | 01 August 1986 |
| DOI | 10.1177/002201838605000302 |
| Subject Matter | Article |
DIVISIONAL
COURT
CRIMINAL
DAMAGE-COMPUTER
PROGRAM
Coxv.
Riley
Unauthorised access to and removal of computer stored
information has been the subject of much concern during the recent
rapid developments in computer technology.
The
ability of the
pre-existing criminal law to cater satisfactorily for the protection of
computer
software has been questioned, one concern being that
information on discs etc. would not be
"property"
for the purposes
of,
for example, the Theft Act 1968 or the Criminal Damage Act
1971.
Cox v. Riley [1986] The Times, April 3, was concerned not with
unauthorised use of information stored on a computer but with
erasure of a program.
The
defendant had been found by the justices
before whom he
appeared
to have deliberately erased the program
from aplasticcircuit card. This cardwas for use with a computerised
saw which was
rendered
inoperable by removal of the program.
Labour
and expense was necessary to restore the program.
The
charge against the defendant was one of deliberately damaging the
plastic circuit card by removal of the program from it (contrary to
s.1(1) of the Criminal Damage Act 1971) and he was convicted by
the justices.
An appeal by way of case stated was made to the Divisional
Court,
before whom it was contended that the program on the card
was not
"property"
within the meaning of the Act. Section W( 1)
defines property as "
...
property of a tangible nature
...
" and it
would certainly be difficult to sustain an argument that aprogram is
itselfwithin this definition--even in relation to theft where property
is defined so as to include "things in action and
other
intangible
property"
it has been held that information (namely questions on a
university examination paper) is not property which can be the
subject of a theft charge: Oxford v. Moss (1978) 68
Cr.App.R.
183.
In the instant case, however, the charge was not damage to
information in the form of the program consigned to the plastic card
198
Divisional Court
but damage to the card itself. Since the program could not be seen
or touched in the ordinary physical sense, it seems sensible that
damage to the card should have been charged. Damage to a
constituent part of a whole can be seen as damage to the whole and
even where property is interferedwith in such a way that no damage
is done to any
part
of it, this can nevertheless be damage to the
property as a whole: see R. v. Woolcock [1977] Crim.L.R. 104.
The
issue for the Divisional Court was, in essence, whether
erasure of the program constituted damage to the card and the Court
saw as relevant statements in R. v. Henderson and Battley (unrep)
Court of Appeal (Criminal Division) 29 November 1984. That case
quoted the Concise Oxford Dictionary definition of
"damage"
as
"injury impairing value or usefulness" and recognised that there
was authority (R. v. William Fisher L.R.
I.C.C.R.
7(1865» for the
proposition that something done to property, e.g. placing an
obstruction inside a piece of machinery, thereby "temporarily
rendering (it) useless for the purpose for which it was intended to be
used" could be damage because labour was required to re-instate it
even though the interference did no damage to the property in the
strictest sense. Inthe instant case, it had been found that the circuit
card was of no use to the owners unless it contained the program
enabling it to cause the saw to operate and that time, effort and
expense was involved in restoring the program. Applying the
principles in R. v. Henderson and Battley, the Divisional Court
confirmed that erasure of the program amounted to damage to the
card within the meaning of the Criminal Damage Act
1971
and the
appeal was accordingly dismissed.
This approach of regarding removal or interference with a
program as constituting damage to the card, disc, tape or whatever,
which carries the program, has the advantage of removing the
problem of classifying the program itself as property.
R. J. Cooper
School
of
Law
The Polytechnic
Newcastle upon Tyne
199
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