R v Bow Street Stipendiary Magistrate, ex parte Government of the United States of America
| Jurisdiction | UK Non-devolved |
| Judge | LORD STEYN,LORD HUTTON,LORD SAVILLE OF NEWDIGATE,LORD HOBHOUSE OF WOODBOROUGH,LORD MILLETT |
| Judgment Date | 05 August 1999 |
| Judgment citation (vLex) | [1999] UKHL J0805-1 |
| Date | 05 August 1999 |
| Court | House of Lords |
[1999] UKHL J0805-1
HOUSE OF LORDS
Lord Steyn
Lord Hutton
Lord Saville of Newdigate
Lord Hobhouse of Wood-borough
Lord Millett
(On Appeal From A Divisional Court of the Queens Bench Division)
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend Lord Hobhouse of Woodborough. For the reasons he has given I would allow the appeal.
My Lords,
I have had the advantage of reading in draft the speech which has been prepared by my noble and learned friend, Lord Hobhouse of Woodborough. I agree with it, and for the reasons which he gives I, too, would allow the appeal.
My Lords,
I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Hobhouse of Woodborough. I agree with it and, for the reasons he gives, I, too, would allow the appeal
My Lords,
On 18 March 1997, Mr Allison was arrested upon a provisional warrant issued under the Extradition Act 1989 at the request of the Government of the United States. It alleged that he had between 1 January 1996 and 18 June 1996 within the jurisdiction of the United States of America conspired with Joan Ojomo and others -
(1) to secure unauthorised access to the American Express computer system with intent to commit theft,
(2) to secure unauthorised access to the American Express computer system with intent to commit forgery, and
(3) to cause unauthorised modification to the contents of the American Express computer system.
On 11 June 1997 the Bow Street Magistrate committed Mr Allison on the third charge but declined to commit him on the first and second of the proposed charges. Mr Allison brought Habeas Corpus proceedings challenging the view that any of the offences alleged were "extradition crimes" under the Act of 1989 and the United States of America (Extradition) Order 1976, SI 1976 No. 2144. The Government brought judicial review proceedings challenging the decision in law of the magistrate that the evidence did not disclose a prima facie case that there had been a conspiracy to commit offences falling within section 2 of the Computer Misuse Act 1990 as alleged in the first and second charges in the warrant.
These challenges to the decision of the magistrate were heard by the Divisional Court which gave judgment on 13 May 1998, Kennedy L.J. and Blofeld J., [1999] Q.B. 847. The Divisional Court dismissed both the Habeas Corpus proceedings and the judicial review proceedings. They however certified a question of law of general public importance:
"Whether, on a true construction of s.1 (and thereafter s.2) of the Computer Misuse Act 1990, a person who has authority to access data of the kind in question none the less has unauthorised access if
(a) the access to the particular data in question was intentional,
(b) the access in question was unauthorised by a person entitled to authorise access to that particular data,
(c) knowing that the access to that particular data was unauthorised."
This question was unhappily drafted; as will appear it perpetuates a confusion concerning the Act of 1990 which is implicit in the judgment of the Divisional Court.
On 15 July 1999 following a hearing concluded on 13 July, your Lordships' House allowed the Government's appeal, set aside the order of the Divisional Court, quashed the discharge by the magistrate of Mr Allison on the first and second of the proposed charges and remitted the cause back to the magistrate, with your Lordships' reasons to be given later.
The Facts:
Joan Ojomo was an employee of American Express. She was assigned to the credit section of the Company's office in Plantation, Florida, as a credit analyst. In her daily work it was possible for her to access all customers' accounts but she was only authorised to access those accounts that were assigned to her. However she accessed various other accounts and files which had not been assigned to her and which she had not been given authority to work on. Having accessed those accounts and files without authority, she gave confidential information obtained from those accounts and files to, among others, Mr Allison. The information she gave to him and to others was then used to encode other credit cards and supply PIN numbers which could then be fraudulently used to obtain large sums of money from automatic teller machines.
The evidence concerning Joan Ojomo's authority to access the material data showed that she did not have authority to access the data she used for this purpose. At no time did she have any blanket authorisation to access any account or file not specifically assigned to her to work on. Any access by her to an account which she was not authorised to be working on would be considered a breach of company policy and ethics and would be considered an unauthorised access by the Company. The computer records showed that she accessed 189 accounts that did not fall within the scope of her duties. Her accessing of these accounts was unauthorised.
Using these methods, she and her fellow conspirators defrauded American Express of approximately US$1,000,000. Mr Allison was arrested with forged American Express cards in his possession and was photographed using one such card to obtain money from an automatic teller machine in London.
The proposed charges against Mr Allison therefore involved his alleged conspiracy with Joan Ojomo for her to secure unauthorised access to data on the American Express computer with the intent to commit the further offences of forging cards and stealing from that Company. It is Joan Ojomo's alleged lack of authority which is an essential element in the offences charged.
The Extradition Act 1989:
The Act of 1989 was enacted following reports of the English and Scottish Law Commissions recommending revisions of the law of extradition. The Act consolidated the previous law with amendments to give effect to those recommendations. The Extradition Act 1870 was among those repealed by the Act of 1989. The Act of 1870 included a definition of "extradition crime" as meaning "a crime which, if committed in England …., would be one of the crimes described in the first schedule" to the Act. The schedule, as would be expected having regard to its date, consisted of a relatively short list. Between 1870 and 1989 the list was extensively added to by later Acts. But none of these statutes included a reference to computer crime such as that made criminal by the Computer Misuse Act 1990.
The scheme of the Act of 1989 was that whilst repealing the Act of 1870, it effectively preserved the first schedule to that Act and the later amendments. It also preserved Orders in Council made under s.2 of the Act of 1870 and the power to amend them. Under such Statutory Instruments the relevant regime is that laid down in the first schedule to the Act of 1989. Paragraph 20 of this schedule provides that "extradition crime" in relation to a foreign state
"is to be construed by reference to the Order in Council under s.2 of the Extradition Act 1870 applying to that state as it had effect immediately before the coming into force of this Act [26 September 1989] and to any amendments thereafter made to that Order".
The relevant Order in Council governing extradition to the United States of America is 1976 No. 2144. It gives effect to and schedules the Extradition Treaty between the respective Governments of the United Kingdom and the United States. Article III of the Treaty provides:
"(1) Extradition shall be granted for an act or omission the facts of which disclose an offence within any of the descriptions listed in the Schedule annexed to this Treaty, which is an integral part of the Treaty, or any other offence, if:
(a) the offence is punishable under the laws of both Parties by imprisonment or other form of detention for more than one year or by the death penalty;
(b) the offence is extraditable under the relevant law, being the law of the United Kingdom or other territory to which this Treaty applies by virtue of sub-paragraph (1)(a) of Article II; and
(c) the offence constitutes a felony under the law of the United States of America.
(2) Extradition shall also be granted for any attempt or conspiracy to commit an offence within paragraph (1) of this Article if such attempt or conspiracy is one for which extradition may be granted under the laws of both Parties and is punishable under the laws of both Parties by imprisonment or other form of detention for more than one year or by the death penalty."
The schedule annexed to the Treaty does not include any reference to computer crime. Therefore if an offence under the Computer Misuse Act 1990 is to come within the terms of the Treaty it will have to be as some "other offence". There is no dispute in the present case that an offence under s.2 of the Act of 1990 comes within (1)(a) being punishable by imprisonment for more than one year. Similarly it is not disputed that the conduct charged would constitute felonies under the law of the United States, (1)(c). The question which has been raised by Mr Allison on his Habeas Corpus application is whether the offences alleged are extraditable under the law of the United Kingdom, (1)(b), and therefore as conspiracies come within paragraph (2) of the Article.
In September 1989 there was no provision of the law of the United Kingdom which made computer crime extraditable; indeed, there was no such provision which made it (as such) criminal at all. At that time such conduct fell outside the scope of the criminal law of the United Kingdom and...
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