“Damage” is interpreted widely to include not only permanent or temporary physical harm, but also permanent or temporary impairment of value or usefulness: Morphitis v. Salmon[1990] Crim. L.R. 48, DC; R. v. Whiteley,93 Cr.App.R. 25, CA (where the authorities are usefully reviewed); and R. v. Fiak[2005] 10Archbold News 1 , CA.
It is not necessary to prove that the damage itself is tangible, although by section 10 of the 1971 Act (post , §23-54) the property which is damaged must be tangible: Whiteley, ante.
A modification of the contents of a computer shall not be regarded as damaging any computer or computer storage medium unless its effect on that computer or computer storage medium impairs its physical condition: see the Computer Misuse Act 1990, s.3(6) (post, §23-89), which is repealed and replaced, as from a day to be appointed, by section 10(5) of the 1971 Act (post, §23-54).
commentary023-7
Examples of damage include the following: taking away a part of a machine or other structure so as to make the whole useless (R. v. Tacey(1821) Russ. and Ry. 452), although if the removed part is not damaged it is essential to charge damage to the whole rather than to the part (Morphitis v. Salmon 1).
commentary023-44
Power to join in indictment certain summary offences
An offence which would otherwise be triable only summarily by virtue of section 22 of the 1980 Act, ante, may in certain circumstances be included as a count in an indictment: see the CJA 1988, s.40 (»»text)(1), (3) (ante, §1-133). In the event of conviction, the powers of the Crown Court are limited to those of a magistrates' court: ibid., s.40 (»»text)(2). This is so even where a defendant charged, inter alia, with criminal damage is sent to the Crown Court for trial pursuant to the CDA 1998, s.51 (»»text) (§1-24, ante): R. v. Gwynn (Richard Mark)[2003] 2 Cr.App.R. (S.) 41, CA. But where there has been no committal or sending for trial on a charge of criminal damage, and the indictment is amended to add a count of criminal damage, the maximum sentence is 10 years' imprisonment even though the value involved is less than GBP5,000: R. v. Alden (Paul Stuart)[2002] 2 Cr.App.R.(S.) 74, CA (see also ante, §23-14), not following R. v. McKechnie,94 Cr.App.R. 51, CA. For criticism of R. v. Alden (Paul Stuart) ([2002] EWCA Crim 421), and a submission that it is inconsistent with R. v. Walker (Alan John)[1996] 1 Cr.App.R.(S.) 447, CA (court in no doubt that maximum sentence for low-value criminal damage is three months), see Criminal Law Week 2002/15/06.
23-46
E: Miscellaneous Provisions
commentary023-46
E. Miscellaneous Provisions
Criminal Damage Act 1971, ss.4, 5
4. Punishment of offences
(1) A person guilty of arson under section 1 (»»text) above or of an offence under section 1 (»»text)(2) above (whether arson or not) shall on conviction on indictment be liable to imprisonment for life.
(2) A person guilty of any other offence under this Act shall on conviction on indictment be liable to imprisonment for a term not exceeding ten years.
commentary023-47
5. “Without lawful excuse”
(1) This section applies to any offence under section 1 (»»text)(1) above and any offence under section 2 (»»text) or 3 above other than one involving a threat by the person charged to destroy or damage property in a way which he knows is likely to endanger the life of another or involving an intent by the person charged to use or cause or permit the use of something in his custody or under his control so to destroy or damage property.
(2) A person charged with an offence to which this section applies shall, whether or not he would be treated for the purposes of this Act as having a lawful excuse apart from this subsection, be treated for those purposes as having a lawful excuse -
(a) if at the time of the act or acts alleged to constitute the offence he believed that the person or persons whom he believed to be entitled to consent to the destruction of or damage to the property in question had so consented, or would have consented to it if he or they had known of the destruction or damage and its circumstances; or
(b) if he destroyed or damaged or threatened to destroy or damage the property in question or, in the case of a charge of an offence under section 3 above, intended to use or cause or permit the use of something to destroy or damage it, in order to protect property belonging to himself or another or a right or interest in property which was or which he believed to be vested in himself or another, and at the time of the act or acts alleged to constitute the offence he believed -
(i) that the property, right or interest was in immediate need of protection; and
(ii) that the means of protection adopted or proposed to be adopted were or would be reasonable having regard to all the circumstances.
(3) For the purposes of this section it is immaterial whether a belief is justified or not if it is honestly held.
(4) For the purposes of subsection (2) above a right or interest in property includes any right or privilege in or over land, whether created by grant, licence or otherwise.
(5) This section shall not be construed as casting doubt on any defence recognised by law as a defence to criminal charges.
commentary023-48
The fact that a person was suffering from self-induced intoxication at the time of an alleged contravention of section 1 (»»text)(1) does not preclude reliance on the defence afforded by section 5(2) and (3): Jaggard v. Dickinson,72 Cr.App.R. 33, DC, where a drunken defendant mistakenly but honestly believed that the house into which she was breaking belonged to a friend.
Where company property is destroyed or damaged, the individual committing the destruction or damage will have a defence if the company consents to his act. If the destruction or damage is ultra vires the company (e.g. with a view to making a fraudulent insurance claim) there is no actual consent, but there would still be a defence under section 5(2)(a) if the individual believes (a) that the company is entitled to consent, or that another person (such as the company proprietor) is entitled to consent (see R. v. Denton,74 Cr.App.R. 81, CA), and (b) that such consent exists or would exist if the company or person entitled to consent were to know of the destruction or damage and its circumstances.
commentary023-49
Where the defence raise an issue under section 5(2)(b), the judge is only entitled to withdraw the defence from the jury if there is no evidence of lawful excuse; if there is some evidence, however tenuous or nebulous, the question should be left to the jury; on no account should there be a direction to convict: R. v. Wang (Cheong)[2005] 2 Cr.App.R. 8, HL, disapproving the course taken in R. v. Hill;R. v. Hall, 89 Cr.App.R. 74, CA (89 Cr.App.R. 74).
The question whether or not a particular act of destruction or damage or threat of destruction or damage was done or made “in order to protect property” is not conclusively answered by a defendant's genuine beliefs; the test is objective: R. v. Hunt,66 Cr.App.R. 105, CA (setting fire to bed in old people's home in order to demonstrate inadequacy of fire alarm - conviction upheld); R. v. Ashford and Smith[1988] Crim.L.R. 682, CA; R. v. Hill; R. v. Hall,ante (campaign of minor criminal damage against United States bases with intent to bring about their closure, and thus lead to reduced risk of the area being target for nuclear attack, with consequent reduced risk of damage to homes in the vicinity); Johnson v. DPP[1994] Crim.L.R. 673, DC (squatter damaging door frame in changing locks to secure his belongings when he moved them in); and R. v. Kelleher (Paul)(2003) 147 S.J. 1395, CA. Similarly, a defendant's genuine belief that property was “in immediate need of protection” (s.5(2)(b)(i)) is not conclusive. There is an objective aspect to the word “immediate”; the defence is only made out where there is evidence on which it could be said that the defendant believed that immediate action had to be taken to do something which would otherwise be a crime in order to prevent the immediate risk of something worse happening: R. v. Hill; R. v. Hall,ante, at pp. 79-80. See also Johnson v. DPP, ante: the squatter's belief that a lock was necessary to secure his belongings was not a belief that they were in “immediate need of protection”.
There is no basis under section 5(2)(b) for requiring the defendant to show that the threat is of unlawful damage to his or another's property: R. v. Jones (Margaret);R. v. Olditch and Pritchard;R. v. Richards[2005] 1 Cr.App.R. 12, CA (legality of Iraq war irrelevant to s.5(2)(b) defence). This ruling, in the defendants' favour and not appealed by the prosecution, was not examined in the House of Lords, where the defendants' appeals on other grounds were dismissed (R. v. Jones (Margaret);R. v. Olditch and Pritchard;R. v. Richards;Ayliffe v. DPP;Swain v. Same[2007] 1 A.C. 136): see ante, §19-39; but Lord Hoffmann's observations in relation to the unavailability of a defence under section 3 of the CLA 1967 (»»text) (reasonable force for the prevention of crime) in the case of direct action protesters leaves little, if any, scope for a successful defence under section 5 where a defence under section 3 of the 1967 Act (»»text) would fail. Although he left the position under section 5 open (see [73]), it seems clear that his Lordship would have held that property could not be said to be “in immediate need of protection” where the state authorities could have, if they had so chosen, taken action to avoid what the defendant asserted to be the greater evil. In one respect, however, the defence under section 5 does differ from that under section 3 (»»text). Under section 5, there is no requirement that the steps actually taken should be reasonable. It is enough that the defendant believed that they were reasonable (the fact that they may have been totally unreasonable going only to the question whether the defendant genuinely held any such belief).
commentary023-49a
In Chamberlain v. Lindon[1998] 1 W.L.R. 1252, DC, the respondent demolished a wall erected on the appellant's land some nine months previously. The respondent's defence to a charge of criminal damage was that he had demolished the wall to protect his right of way over the land. It was held in the magistrates' court that he came within the section 5(2)(b) defence in that he honestly believed that his right or interest was in immediate need of protection and that the means adopted were reasonable having regard to all the circumstances. The appeal against the respondent's acquittal was dismissed. It was held: (1) that the fact that the respondent damaged the wall in the hope of avoiding civil litigation did not prevent his purpose being to protect his right of way (which qualified as a right or interest in property by virtue of section 5(4)); and (2) that the right of way was in immediate need of protection within the meaning of section 5(2)(b)(i), because there was a present need to remove the wall, and the longer it remained the more urgent the need to remove it so as to avoid any suggestion of acquiescence in the obstruction.
commentary023-50
A motorist parking in a private car park displaying clear warnings that unauthorised vehicles would be wheel clamped, consented to the risk of his car being clamped. He had no lawful excuse for damaging the clamp. Causing damage in such circumstances can only be contemplated when there is no reasonable alternative: Lloyd v. DPP[1992] 1 All E.R. 982, DC; R. v. Mitchell (Carl)[2004] R.T.R. 14, CA.
commentary023-51
A defendant's genuine belief that he was carrying out God's instructions does not provide a defence of lawful excuse to a charge of criminal damage: Blake v. DPP[1993] Crim.L.R. 586, DC.
The defence of damaging property to protect property (s.5(2)(b)) does not extend to the protection of the person: R. v. Baker (Janet)[1997] Crim.L.R. 497, CA.
The words “property belonging to himself or another” (section 5(2)(b)) specify two requirements of the thing sought to be protected. It must be “property” and it must belong to the person charged or another: Cresswell v. DPP;Currie v. DPP,171 J.P. 233, DC. Keene L.J. was of the opinion that the section 5(2)(b) defence cannot apply where both the destroyed property and the thing to be protected are in the ownership of the same person, whereas Walker J. left this point open. As to this case, see also post, §23-55.
Section 5(2) and (5) make it clear that the common law defence of protection of property remains, but it has always been an ingredient of that defence that what is being experienced or feared by the defendant is an unlawful or criminal act: Cresswell v. DPP;Currie v. DPP ([2006] EWHC 3379), ante (in contrast to the position under section 5: see R. v. Jones (Margaret) ([2006] UKHL 16), ante, §23-49).
commentary023-52
Criminal Damage Act 1971, ss.6, 9, 10
6. Search for things intended for use in committing offences of criminal damage
(1) If it is made to appear by information on oath before a justice of the peace that there is reasonable cause to believe that any person has in his custody or under his control or on his premises anything which there is reasonable cause to believe has been used or is intended for use without lawful excuse -
(a) to destroy or damage property belonging to another; or
(b) to destroy or damage any property in a way likely to endanger the life of another,
the justice may grant a warrant authorising any constable to search for and seize that thing.
(2) A constable who is authorised under this section to search premises for anything, may enter (if need be by force) and search the premises accordingly and may seize anything which he believes to have been used or to be intended to be used as aforesaid.
(3) [Application of Police (Property) Act1897.]
commentary023-53
9. Effect on civil proceedings
[Identical to s.31(1)of the Theft Act1968, ante, §21-336 (including the amendments). ]
commentary023-54
10. Interpretation
(1) In this Act “property” means property of a tangible nature, whether real or personal, including money and -
(a) including wild creatures which have been tamed or are ordinarily kept in captivity, and any other wild creatures or their carcasses if, but only if, they have been reduced into possession which has not been lost or abandoned or are in the course of being reduced into possession; but
(b) not including mushrooms growing wild on any land or flowers, fruit or foliage of a plant growing wild on any land.
For the purposes of this subsection “mushroom” includes any fungus and “plant” includes any shrub or tree.
(2) Property shall be treated for the purposes of this Act as belonging to any person -
(a) having the custody or control of it;
(b) having in it any proprietary right or interest (not being an equitable interest arising only from an agreement to transfer or grant an interest); or
© having a charge on it.
(3) Where property is subject to a trust, the person to whom it belongs shall be so treated as including any person having a right to enforce that trust.
(4) Property of a corporation sole shall be so treated as belonging to the corporation notwithstanding a vacancy in the corporation.
[(5) For the purposes of this Act a modification of the contents of a computer shall not be regarded as damaging any computer or computer storage medium unless its effect on that computer or computer storage medium impairs its physical condition.]
[This section is printed as amended, as from a day to be appointed, by the PJA 2006, s.52, and Sched. 14, para. 2 (insertion of subs. (5)).]
commentary023-55
Cf. sections 4 (»»text) and 5 of the Theft Act 1968 (»»text), ante, §§21-48, 21-58.
As to the relationship between mens rea and “property belonging to another”, see R. v. Smith (D.R.),58 Cr.App.R. 320, CA (ante , §23-8).
In Cresswell v. DPP;Currie v. DPP ([2006] EWHC 3379), ante, §23-51, Keene L.J. held that badgers for which traps had been set, but which had not yet been trapped, were not “property” as defined by section 10(1)(a) (“wild creatures … if, but only if, … they are in the course of being reduced into possession”), even if particular badgers had entered a trap prior to it being set. Walker J. expressed no concluded view on this point. However, both judges agreed that the badgers did not belong to anybody, as nobody had custody or control of them, nor any proprietary right or interest in them (see s.10(2)); so the defendants who destroyed the traps could not rely on the section 5(2)(b) defence: see ante, §23-51.
II: Malicious Damage Act 1861
fulltext023-56
II. Malicious Damage Act 1861
Malicious Damage Act 1861, ss.35, 36
35. Placing wood, etc. on railway, etc.
Whosoever shall unlawfully and maliciously put, place, cast, or throw upon or across any railway any wood, stone, or other matter or thing, or shall unlawfully and maliciously take up, remove, or displace any rail, sleeper, or other matter or thing, belonging to any railway, or shall unlawfully and maliciously turn, move, or divert any points or other machinery belonging to any railway, or shall unlawfully and maliciously make or show, hide, or remove, any signal or light upon or near to any railway, or shall unlawfully and maliciously do or cause to be done any other matter or thing, with intent, in any of the cases aforesaid, to obstruct, upset, overthrow, injure, or destroy any engine, tender, carriage, or truck using such railway, shall be … liable, at the discretion of the court, to imprisonment for life … .
fulltext023-57
36. Obstructing engines or carriages on railways
Whosoever, by any unlawful act, or by any wilful omission or neglect, shall obstruct or cause to be obstructed, any engine or carriage using any railway, or shall aid or assist therein, shall be guilty of an offence, and being convicted thereof shall be liable, at the discretion of the court, to be imprisoned for any term not exceeding two years … .
commentary023-58
Indictment
Specimen counts under both sections 35 (»»text) and 36 (»»text) are contained in the repealed Schedule to the Indictments Act 1915.
An acquittal on an indictment framed under section 35 (»»text) is no bar to a subsequent indictment upon the same facts for an offence under section 36 (»»text): R. v. Gilmore(1882) 15 Cox 85.
commentary023-59
Class of offence and mode of trial
The offences contrary to sections 35 and 36 are class 3 offences, ante, §2-17. The latter is triable either way: MCA 1980, s.17(1), and Sched. 1, ante, §1-130. The penalty on summary conviction is six months' imprisonment (increased to 12 months, as from a day to be appointed, by the CJA 2003, s.282(2) and (3), but not in relation to any offence committed before the date of commencement: s.282(4)), a fine not exceeding GBP5,000, or both: ibid., s.32(1), ante, §§1-125 et seq.
commentary023-60
Mens rea
As to the meaning of “maliciously”, see generally, ante, §§17-45 et seq. and, in particular, R. v. Cunningham[1957] 2 Q.B. 396,41 Cr.App.R. 155 , CCA. Section 58 of the Act provides that where malice is an ingredient of an offence under the Act it is immaterial whether the offence is committed “from malice conceived against the owner of the property in respect of which it shall be committed, or otherwise”.
As to the meaning of “wilful”, see R. v. Holroyd(1841) 2 M. & Rob. 339, R. v. Senior[1899] 1 Q.B. 283 and R. v. Sheppard (James Martin)[1981] A.C. 394, HL, ante, §17-47.
In R. v. Gittins[1982] R.T.R. 363, CA, it was held (applying R. v. Sheppard (James Martin), ante) that in order to be guilty of wilful neglect (s.36 (»»text)), the accused must know that his conduct involves the risk of an obstruction to the railway unless he takes reasonable care and yet, knowing that, he deliberately falls short of exercising it.
commentary023-61
Actus reus
On a prosecution under section 36 (»»text), it would seem not to be necessary to prove that any train was obstructed in fact: see R. v. Bradford(1860) 8 Cox 309; R. v. Gatenby[1960] Crim.L.R. 195, Assizes (Thesiger J.).
Where a defendant unlawfully causes a train to slow down or stop, whether by altering some railway signals (R. v. Hadfield(1870) L.R. 1 C.C.R. 253) or imitating an inspector's hand signals (R. v. Hardy(1870) L.R. 1 C.C.R. 278), he is guilty of “obstructing” a train within the meaning of section 36 (»»text). “Any unlawful act” in section 36 (»»text) includes each of the acts mentioned in section 35 (»»text): Hadfield 2). By section 38(6), in the case of an offence committed before the CJA 2003, s.154(1), comes into force, the new subsection (3) has effect as if for “12 months”, there were substituted “six months”.
The words of section 1(1)(a) should be given their plain and ordinary meaning: Att.-Gen.'s Reference (No. 1 of 1991)[1993] Q.B. 94, CA. An offence under the section need not involve the use of one computer to secure access to another; the section is also contravened where a person causes a computer to perform a function with intent to gain unauthorised access to any program or data held in the same computer: ibid.
It is unclear whether an offence is committed under section 1 by a person who is authorised to secure access to computer material, but does so for unauthorised purposes. In DPP v. Bignall[1998] 1 Cr.App.R. 1, DC (police officers for undisclosed private purposes procuring innocent computer operator to extract details of cars from Police National Computer), it was held that the offence was not committed in such circumstances, but some of the court's reasoning in relation to section 17(5), albeit not the result, was disapproved in R. v. Bow Street Metropolitan Stipendiary Magistrate Ex p. United States (No.2)[2000] 2 A.C. 216, HL (an extradition case: see post, §23-101). See the commentaries at [1999] Crim.L.R. 971 and Criminal Law Week 1999/32/16.
commentary023-88
Computer Misuse Act 1990, ss.2, 3, 3A
2. Unauthorised access with intent to commit or facilitate commission of further offences
(1) A person is guilty of an offence under this section if he commits an offence under section 1 above (“the unauthorised access offence”) with intent -
(a) to commit an offence to which this section applies; or
(b) to facilitate the commission of such an offence (whether by himself or by any other person);
and the offence he intends to commit or facilitate is referred to below in this section as the further offence.
(2) This section applies to offences -
(a) for which the sentence is fixed by law; or
(b) for which a person of twenty-one years of age or over (not previously convicted) [who has attained the age of twenty-one years (eighteen in relation to England and Wales) and has no previous convictions] may be sentenced to imprisonment for a term of five years (or, in England and Wales, might be so sentenced but for the restrictions imposed by section 33 of the Magistrates' Courts Act 1980).
(3) It is immaterial for the purposes of this section whether the further offence is to be committed on the same occasion as the unauthorised access offence or on any future occasion.
(4) A person may be guilty of an offence under this section even though the facts are such that the commission of the further offence is impossible.
(5) A person guilty of an offence under this section shall be liable -
(a) on summary conviction in England and Wales, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum or to both;
(b) [Scotland. ];
© on conviction on indictment, to imprisonment for a term not exceeding five years or to a fine or to both.
[This section is printed as amended by the PJA 2006, s.52, and Sched. 14, para. 17; and as amended, as from a day to be appointed, by the CJCSA 2000, s.74 and Sched. 7, para. 98 (substitution of words in square brackets for italicised words in subs. (2)). The reference to “12 months” in subs. (5) should be read as “six months” in relation to any offence committed before the commencement of the CJA 2003, s.154(1): 2006 Act, s.38(6)).]
commentary023-89
3. Unauthorised acts with intent to impair, or with recklessness as to impairing, operation of computer, etc.
(1) A person is guilty of an offence if -
(a) he does any unauthorised act in relation to a computer;
(b) at the time when he does the act he knows that it is unauthorised; and
© either subsection (2) or subsection (3) below applies.
(2) This subsection applies if the person intends by doing the act -
(a) to impair the operation of any computer;
(b) to prevent or hinder access to any program or data held in any computer; or
© to impair the operation of any such program or the reliability of any such data.
(3) This subsection applies if the person is reckless as to whether the act will do any of the things mentioned in paragraphs (a) to © of subsection (2) above.
(4) The intention referred to in subsection (2) above, or the recklessness referred to in subsection (3) above, need not relate to -
(a) any particular computer;
(b) any particular program or data; or
© a program or data of any particular kind.
(5) In this section -
(a) a reference to doing an act includes a reference to causing an act to be done;
(b) “act” includes a series of acts;
© a reference to impairing, preventing or hindering something includes a reference to doing so temporarily.
(6) A person guilty of an offence under this section shall be liable -
(a) on summary conviction in England and Wales, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum or to both;
(b) [Scotland ];
© on conviction on indictment, to imprisonment for a term not exceeding ten years or to a fine or to both.
[This section is printed as substituted by the PJA 2006, s.36; and as subsequently amended by the SCA 2007, ss.61(1) and (3), and 92, and Sched. 14.]
An offence is not committed under the new section 3 unless every act or other event proof of which is required for conviction of the offence takes place after the substitution took effect (viz. October 1, 2008: Police and Justice Act 2006 (Commencement No. 9) Order 2008 (S.I. 2008 No. 2503)): 2006 Act, s.38(3). Where, by reason of section 38(3), an offence is not committed under the new section 3, the old section 3 has effect: ibid., s.38(4). In the case of an offence committed before the CJA 2003, s.154(1), comes into force, the new section 3(6)(a) has effect as if for “12 months” there were substituted “six months”: ibid., s.38(6).
If a computer is caused to record information which shows that it came from one person, when it in fact came from someone else, that manifestly affects its reliability, and thus the reliability of the data in the computer is impaired within the meaning of section 3(2)©: Zezev v. Governor of Brixton Prison[2002] 2 Cr.App.R. 33, DC.
In DPP v. Lennon,170 J.P. 532, DC, it was held that a person causing a substantial number of e-mail messages to be sent to a computer server committed the actus reus of the offence contrary to the original section 3(1), where the addition of the data from the e-mail messages was “unauthorised” within the meaning of section 17(8): see post, §23-101.
commentary023-89a
3A. Making, supplying or obtaining articles for use in offence under section 1 or 3
(1) A person is guilty of an offence if he makes, adapts, supplies or offers to supply any article intending it to be used to commit, or to assist in the commission of, an offence under section 1 or 3.
(2) A person is guilty of an offence if he supplies or offers to supply any article believing that it is likely to be used to commit, or to assist in the commission of, an offence under section 1 or 3.
(3) A person is guilty of an offence if he obtains any article with a view to its being supplied for use to commit, or to assist in the commission of, an offence under section 1 or 3.
(4) In this section “article” includes any program or data held in electronic form.
(5) [Identical to s.1(3), ante, §23-87.]
[This section was inserted by the PJA 2006, s.37.]
An offence is not committed under section 3A unless every act or other event proof of which is required for conviction of the offence takes place after section 37 of the 2006 Act came into force (as to which, see ante, §23-89): 2006 Act. s.38(5). As to the effect of section 38(6), see ante, §23-89.
B: Jurisdiction
commentary023-90
B. Jurisdiction
Computer Misuse Act 1990, ss.4-9
4. Territorial scope of offences under sections 1 to 3
(1) Except as provided below in this section, it is immaterial for the purposes of any offence under section 1 or 3 above -
(a) whether any act or other event proof of which is required for conviction of the offence occurred in the home country concerned; or
(b) whether the accused was in the home country concerned at the time of any such act or event.
(2) Subject to subsection (3) below, in the case of such an offence at least one significant link with domestic jurisdiction must exist in the circumstances of the case for the offence to be committed.
(3) There is no need for any such link to exist for the commission of an offence under section 1 above to be established in proof of an allegation to that effect in proceedings for an offence under section 2 above.
(4) Subject to section 8 below, where -
(a) any such link does in fact exist in the case of an offence under section 1 above; and
(b) commission of that offence is alleged in proceedings for an offence under section 2 above;
section 2 above shall apply as if anything the accused intended to do or facilitate in any place outside the home country concerned which would be an offence to which section 2 applies if it took place in the home country concerned were the offence in question.
(5) [Scotland. ]
(6) References in this Act to the home country concerned are references -
(a) in the application of this Act to England and Wales, to England and Wales;
(b) in the application of this Act to Scotland, to Scotland; and
© in the application of this Act to Northern Ireland, to Northern Ireland.
[The heading to this section is printed as amended by the PJA 2006, s.52, and Sched. 14, para. 18.]
commentary023-91
5. Significant links with domestic jurisdiction
(1) The following provisions of this section apply for the interpretation of section 4 above.
(2) In relation to an offence under section 1, either of the following is a significant link with domestic jurisdiction -
(a) that the accused was in the home country concerned at the time when he did the act which caused the computer to perform the function; or
(b) that any computer containing any program or data to which the accused secured or intended to secure unauthorised access by doing that act was in the home country concerned at that time.
(3) In relation to an offence under section 3, either of the following is a significant link with domestic jurisdiction -
(a) that the accused was in the home country concerned at the time when he did the unauthorised act (or caused it to be done); or
(b) that the unauthorised act was done in relation to a computer in the home country concerned.
[Subs. (3) is printed as amended by the PJA 2006, s.52, and Sched. 14, para. 19(1) and (3).]
Where, by reason of section 38(3) of the 2006 Act (as to which, see ante, §23-89), an offence is not committed under the new section 3 of the 1990 Act, the amendments to section 5(3) do not apply: ibid., s.38(4).
commentary023-92
6. Territorial scope of inchoate offences related to offences under sections 1 to 3
(1) On a charge of conspiracy to commit an offence under section 1, 2 or 3 above the following questions are immaterial to the accused's guilt -
(a) the question where any person became a party to the conspiracy; and
(b) the question whether any act, omission or other event occurred in the home country concerned.
(2) On a charge of attempting to commit an offence under section 3 above the following questions are immaterial to the accused's guilt -
(a) the question where the attempt was made; and
(b) the question whether it had an effect in the home country concerned.
(3) [Repealed by SCA2007, ss.63(2)and 92, Sched. 6, para. 59(1) and (2),and Sched. 14.]
(4) This section does not extend to Scotland.
[This section is printed as amended by the PJA 2006, s.52, and Sched. 14, para. 20.]
commentary023-93
7. Territorial scope of inchoate offences related to offences under external law corresponding to offences under this Act [sections 1 to 3]
(1), (2) [Repealed by Criminal Justice (Terrorism and Conspiracy) Act1998, s.9(2)and Sched. 2, Pt II.]
(3) [See post, §33-120. ]
(4) [Repealed by SCA2007, ss.63(2)and 92, Sched. 6, para. 59(1) and (3),and Sched. 14.]
commentary023-94
8. Relevance of external law
(1) A person is guilty of an offence triable by virtue of section 4(4) above only if what he intended to do or facilitate would involve the commission of an offence under the law in force where the whole or any part of it was intended to take place.
(3) A person is guilty of an offence triable by virtue of section 1(1A) of the Criminal Attempts Act 1981 … only if what he had in view would involve the commission of an offence under the law in force where the whole or any part of it was intended to take place.
(4) Conduct punishable under the law in force in any place is an offence under that law for the purposes of this section, however it is described in that law.
(5) Subject to subsection (7) below, a condition specified in subsection (1) or (3) above shall be taken to be satisfied unless not later than rules of court may provide the defence serve on the prosecution a notice -
(a) stating that, on the facts as alleged with respect to the relevant conduct, the condition is not in their opinion satisfied;
(b) showing their grounds for that opinion; and
© requiring the prosecution to show that it is satisfied.
(6) In subsection (5) above “the relevant conduct” means -
(a) where the condition in subsection (1) above is in question, what the accused intended to do or facilitate; …
© where the condition in subsection (3) above is in question, what the accused had in view.
(7) The court, if it thinks fit, may permit the defence to require the prosecution to show that the condition is satisfied without the prior service of a notice under subsection (5) above.
(8) [Scotland. ]
(9) In the Crown Court the question whether the condition is satisfied shall be decided by the judge alone.
(10) [Scotland. ]
[This section is printed as amended by the Criminal Justice (Terrorism and Conspiracy) Act 1998, s.9(1), (2), and Scheds 1, Pt II, and 2, Pt II; and the SCA 2007, ss.63(2) and 92, Sched. 6, para. 59(1) and (4), and Sched. 14.]
commentary023-95
9. British citizenship immaterial
(1) In any proceedings brought in England and Wales in respect of any offence to which this section applies it is immaterial to guilt whether or not the accused was a British citizen at the time of any act, omission or other event proof of which is required for conviction of the offence.
(2) This section applies to the following offences -
(a) any offence under section 1, 2 or 3 above;
(b) [repealed by Criminal Justice (Terrorism and Conspiracy) Act1998, s.9(1), (2),and Sched. 1, Pt II,and Sched. 2, Pt II];
© any attempt to commit an offence under section 3 above; and … .
[This section is printed as amended by the PJA 2006, s.52, and Sched. 14, para. 22; and the SCA 2007, ss.63(2) and 92, Sched. 6, para. 59(1) and (5), and Sched. 14.]
C: Miscellaneous and General
commentary023-96
C. Miscellaneous and General
Computer Misuse Act 1990, ss.10, 17
10. Saving for certain law enforcement powers
Section 1(1) above has effect without prejudice to the operation -
(a) in England and Wales of any enactment relating to powers of inspection, search and seizure; and
(b) [Scotland ]
and nothing designed to indicate a withholding of consent to access to any program or data from persons as enforcement officers shall have effect to make access unauthorised for the purposes of the said section 1(1).
In this section “enforcement officer” means a constable or other person charged with the duty of investigating offences; and withholding consent from a person “as” an enforcement officer of any description includes the operation, by the person entitled to control access, of rules whereby enforcement officers of that description are, as such, disqualified from membership of a class of persons who are authorised to have access.
[This section is printed as amended by the CJPOA 1994, s.162(1).]
23-100
commentary023-100
Computer Misuse Act 1990, s.17
17. Interpretation
(1) The following provisions of this section apply for the interpretation of this Act.
(2) A person secures access to any program or data held in a computer if by causing a computer to perform any function he -
(a) alters or erases the program or data;
(b) copies or moves it to any storage medium other than that in which it is held or to a different location in the storage medium in which it is held;
© uses it; or
(d) has it output from the computer in which it is held (whether by having it displayed or in any other manner);
and references to access to a program or data (and to an intent to secure such access) shall be read accordingly.
(3) For the purposes of subsection (2)© above a person uses a program if the function he causes the computer to perform -
(a) causes the program to be executed; or
(b) is itself a function of the program.
(4) For the purposes of subsection (2)(d) above -
(a) a program is output if the instructions of which it consists are output; and
(b) the form in which any such instructions or any other data is output (and in particular whether or not it represents a form in which, in the case of instructions, they are capable of being executed or, in the case of data, it is capable of being processed by a computer) is immaterial.
(5) Access of any kind by any person to any program or data held in a computer is unauthorised if -
(a) he is not himself entitled to control access of the kind in question to the program or data; and
(b) he does not have consent to access by him of the kind in question to the program or data from any person who is so entitled;
but this subsection is subject to section 10.
(6) References to any program or data held in a computer include references to any program or data held in any removable storage medium which is for the time being in the computer; and a computer is to be regarded as containing any program or data held in any such medium.
(8) An act done in relation to a computer is unauthorised if the person doing the act (or causing it to be done) -
(a) is not himself a person who has responsibility for the computer and is entitled to determine whether the act may be done; and
(b) does not have consent to the act from any such person.
In this subsection “act” includes a series of acts.
(9) References to the home country concerned shall be read in accordance with section 4(6) above.
(10) References to a program include references to part of a program.
[This section is printed as amended by the CJPOA 1994, s.162(2); and the PJA 2006, s.52, Sched. 14, para. 29, and Sched. 15, Pt 4 (but see post, for transitional provisions).]
Where, by reason of section 38(3) of the 2006 Act (as to which, see ante, §23-89), an offence is not committed under the new section 3 of the 1990 Act, the repeal of section 17(7), and the substitution of a new section 17(8), do not apply: PJA 2006, s.38(4).
commentary023-101
Section 17(5) was examined in R. v. Bow Street Metropolitan Stipendiary Magistrate Ex p. United States (No.2)[2000] 2 A.C. 216, HL (an extradition case): access by any person to any program or data held in a computer is unauthorised if that person is neither entitled to control, in the sense of authorising or forbidding, access to the program or data involved, nor has the consent of a person entitled to exercise such control. Authority to view data may not extend to authority to alter or copy that data. Authorised access to certain data cannot be construed as including authority to access other data of the same kind (dicta in DPP v. Bignall[1998] 1 Cr.App.R. 1, DC, ante, §23-87, disapproved).
The original subsection (8)(b) (modification is unauthorised if person making the modification “does not have consent to the modification” from any person entitled to determine whether modification should be made) was considered in DPP v. Lennon,170 J.P. 532, DC (see also ante, §23-89), where it was held that, although a computer owner is ordinarily to be taken to consent to the sending of e-mails to his computer, such consent is not unlimited and plainly does not cover e-mails which are not sent for the purpose of communication with the owner, but are sent for the purpose of interrupting the proper operation and use of his system; where many e-mails are sent, for example by way of a continuous “mail-bombing” program, the defendant's conduct is not to be judged on an e-mail by e-mail basis, but as a whole; (obiter ) the mere sending of an e-mail purporting to come from someone other than its actual sender is not, however, necessarily to be treated as unauthorised if, for example, the e-mail is sent as a joke and without malicious intent.