Index
| Author | Matthew Richardson |
| Pages | 267-287 |
Index
References are to page numbers
Access to computer
disclosure notice see Disclosure notice unauthorised see Unauthorised access to computer
Anti-terrorism hotline hoax calls to 12
Bank account
accessing details 15, 17 Bank credit
theft 73
Botnet
meaning 32n60 use of 32
Child
indecent images of, making, possessing, distributing, etc see Indecent image (child, of)
Child abuse
images of, in e-format see Indecent image (electronic format, possession in)
Cloud storage system accessing 49
Communications offences
closed network, use of 103
existing law, fitness for purpose 93 generally 93
grossly offensive, indecent, menacing, etc messages
actus reus, failure to establish 99 assessing offensiveness 98
case law 97–101
criminal liability, attracting 100 culpable state of mind 98 freedom of expression, and 100 generally 97–101
indecent: meaning 101
intent, question of 97–8 menacing message, whether 98–9 mens rea, judicial guidance 99–
100
MP, sent to 97
obscene: meaning 101 sentencing guidelines 94–5 telephone calls 95, 97
Twitter, use of 99
types 95
whether only offensive 97 improper use of public electronic communications network
actus reus 96
annoyance, anxiety, etc, to create
95
elements of offence 96–7
emails, use of 95
Facebook, threats via 96
false message, sending 95 grossly offensive, etc messages see grossly offensive, indecent, menacing, etc messages above legislation 93–4
mens rea 96–7
offence 93–4
penalties 94
procedure and sentencing 94–6 sentencing guidelines 94–5
268 Cyber Crime: Law and Practice
Communications offences (continued) improper use of public electronic communications network (continued) summary nature of offence 94 types of communication 96
see also public electronic communications network, use of below
malicious communication see
Malicious communication public electronic communications network, use of
case law 102–3
content service: meaning 101 conveyance of signals: meaning
102
criminal liability arising, where
101
electronic communications network: meaning 101
electronic communications service: meaning 101
generally 101–3
internet as 103
meaning 102
public electronic communications service: meaning 102
signal: meaning 102
Twitter 102–3
see also improper use of public electronic communications network above
Social Media Guidelines see under
Social Media Guidelines unlawful Interception see Unlawful interception of communication Community Impact Statement
use of 264
Computer
access to
disclosure notice see Disclosure notice
unauthorised see Unauthorised access to computer
defining characteristics 48 fundamental function 48 meaning 47, 48
shop till as 48–9
Computer data
meaning 47
Computer misuse
alteration or deletion of data 31 articles for use in, making, supplying or obtaining
actus reus 44, 45, 46, 47
adapting article 45
article: meaning 47
belief, nature of 45
criminal standard, proof to necessary
46
Crown Prosecution Service guidance
43
elements of offences 44–7 fraudulent acts 43
generally 42
hacking tool, types of 47 indecent photographs, possession of
46
knowledge of likely use 45–6 legislation 42
mens rea 45, 46
nature of article 47
obtaining: meaning 46
penalties 43
procedure and sentencing 43–4 supply: meaning 44–5
with a view to being supplied for use
46
blended threats 36
bogus emails 26–7
Cloud storage systems 49 Computer Misuse Act 1990 see
Computer Misuse Act 1990 1–2
Denial of Service attack see Denial of
Service attack
hacking tool, types of 47 impairment, whether recklessly or with intent
actus reus 26
bogus emails 26–7
burglary and identity theft, offence akin to 24
computer worms and virus, use of
20, 34
conspiracy 26
criminal damage see Criminal damage
Denial of Service attack see Denial of Service attack
elements of offence 26–8
EU obligations 19
generally 17–19
habeas corpus, defendants seeking
26
legislation 18, 19 mail-bombing program, use of 27 mens rea 26
modification of computer 20–1,
27, 28
offending behaviour see Criminal damage
generally 28–31
see also Criminal damage penalties
generally 20
see also sentencing below procedure 20–5
requirements for commission of offence 20
sentencing
case law 20–5
Sentencing Council, lack of guidelines from 20
virus, release of 20
industrial espionage 75 jurisdictional issues see Jurisdiction Law Commission’s investigation and report 1–2, 9
malware see Malware
memory stick, theft and misuse 49 modification of computer material: meaning 26–7
offences
articles for use in see articles for use in, making, supplying or obtaining above
case law 11–13
further offences, commission of generally 11
see also under Unauthorised access to computer
generally 11–13
impairment, whether recklessly or with intent see impairment, whether recklessly or with intent above
jurisdiction see Jurisdiction territorial scope see Jurisdiction unauthorised access see under
Unauthorised access to computer pharming see Pharming
phishing see Phishing
securing access to computer: meaning
5
serious damage, causing, etc
actus reus 41
damage of a material kind: meaning
40, 41
elements of offences 41
generally 39–41
human welfare, damage to 40, 41 legislation 39–41
mens rea 41
national security, damage to 40, 41 offences 40–1
procedure and sentencing 41 storage media 49
types 31–9
unauthorised act causing damage or risk of damage see serious damage, causing, etc above
unauthorised modification 26–7 university facilities, use of 6 unlawful interception, and
overlap with offence of 136
see also Unlawful interception of communication
use of program: meaning 5 Computer Misuse Act 1990 amendments to 2
background to 1–2
entitlement to control, judicial interpretation of 9
hacking
criminalisation of 8
extent of offence 9–10
offences under
generally 11–13
270 Cyber Crime: Law and Practice
Computer Misuse Act 1990 (continued) offences under (continued) unauthorised access see
Unauthorised access to computer unauthorised access to computers see
Unauthorised access to computer Computer system
meaning 47
Confidential information
industrial espionage, gathered through
75
national security, relating to 75 property, not constituting 74
theft of
civil remedy only 75
computer misuse, as 75
data held legally, where 75
no prosecution for 74–5 Contempt of court
actus reus 202
Administrative Division, by reference to 202
categories 201
common characteristic 201 common law offence 201, 203 Crown Court’s jurisdiction 202 Divisional Court, reference to 201 generally 201–2
indictment, no longer tried on 202,
210
juries, misuse of internet by contacting defendants and witnesses
210–12
discussing evidence 212 Facebook, use of 209, 210, 211, 212 generally 208–14
human rights, and 213
penalty for 210, 212
previous convictions, discovery of
209
research by juror 203, 208–10,
213–14
showing prejudice against defendant
212, 213
Twitter, use of 209
warning signs, advice, etc to jurors, use of 213
jurisdiction to deal with 202 legislation 202
magistrates’ court, trial in 202 offence, elements of 202
open justice
court reporting, and see reporting of case below
generally 204
judicial guidance 204
procedure for dealing with 202 proof of, to criminal standard 202,
203, 210
publication, by 202
reporting of case
breach of limitations, effect 204 electronic communication, use of
207–8
freedom to report 205 limitations on 204
live text-based communications, use of 205–6, 208
Practice Direction, guidance in
205–6
restrictions
appeal against imposition 208 power to impose 208
sound recording 207–8
Twitter, use of 205
sentencing
example 210
generally 203–4
guidelines, lack of 203
juror, of 210
legislation as to 203–4
strict liability rule
legislation as to 202, 203–4 whether applicable 202–3 summary trial of 201, 202 Copyright
act restricted by: meaning 77 infringement see Copyright infringement
rights resulting from ownership
76
statutory basis for property right
76
works subsisting in 76
Copyright infringement
act restricted by copyright: meaning
77
actus reus 80
communication to the public: meaning
81
criminal liability for 77–9
file sharing over the internet
civil wrong, as 83
criminal sanctions 84, 85
data streaming see Data streaming direct downloading, criminal liability
85
downloading from host website 84 films playing in cinema, from recordings of 84
games 84
generally 82–3
methods 83
peer-to peer see Peer-to-peer file sharing
platforms 82
streaming see Data streaming
types 82
uploading from host website 84 generally 75–6
infringing copy: meaning 79–80 legislation 76–7
meaning 76–7
mens rea
generally 80, 81, 82
reason to believe, confusing use of phrase 82
offences
elements 79–82
list of 77–8, 80–1
penalty 79
triable other way, where 79 procedure and sentencing 79
Credit card
account information, accessing 8–9 cloned cards 8
conspiracy to commit offence 9 Criminal attempt
computer misuse, and 16–17 gathering information, and 17 legislation governing 16
where offence technically impossible
16
Criminal contempt of court see Contempt of court
Criminal damage
case law 29–30
erasure of computer program 29 generally 2831
impairment of computer 30 magnetic particles, alteration of 30, 31 physical condition of computer, to
30–1
printed circuit card as tangible property
29
Criminal evidence
admissibility
default position 215–16 fundamental test 215
improper or unfair evidence 216 judicial guidance 215, 216 unlawfully obtained evidence 216 disclosure obligations, prosecution’s failure to comply with 220 exclusion
after previous inclusion 224 application to exclude 224
bad faith, obtained in 222
breach of statute, where obtained in
224
breath specimen 222–3
burden of proof, etc 227 categories for 220
common law, at
case law 221–3
generally 220–3
jury cases, in 221
limited scope of discretion 221 magistrates’ court, in 221 reasons for excluding 221 types of evidence covered by
222
court’s discretion, at
common law, at see common law, at above
generally 220
dispute over provenance of evidence, where 226
272 Cyber Crime: Law and Practice
Criminal evidence (continued) exclusion (continued)
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