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Computer Related Crime. Computer Evidence, Data Protection Act

Computers are a source of evidence and the misuse of computers is a crime in certain circumstances.

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Computer Misuse Offences

Computer Misuse Act 1990, s.1

1. Unauthorised access to computer material

(1) A person is guilty of an offence if -

(a) he causes a computer to perform any function with intent to secure access to any program or data held in any computer;

(b) the access he intends to secure is unauthorised; and

(c) he knows at the time when he causes the computer to perform the function that that is the case.

(2) The intent a person has to have to commit an offence under this section need not be directed at

(a) any particular program or data;

(b) a program or data of any particular kind; or

(c) a program or data held in any particular computer.

(3) A person guilty of an offence under this section shall be liable -

-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;

- on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both.

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Computer Misuse Act 1990, ss.2

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 -

-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;

-on conviction on indictment, to imprisonment for a term not exceeding five years or to a fine or to both.

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Computer Misuse Act 1990, ss.3

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

(c) 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

(c) 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 (c) 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

(c) 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;

(c) 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 -

-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;

-on conviction on indictment, to imprisonment for a term not exceeding ten years or to a fine or to both.

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)(c): Zezev v. Governor of Brixton Prison[2002]

In DPP v. Lennon, 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.

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Computer Misuse Act 1990, ss.3A

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.

These are the common offences but contact MJP solicitors for more information.

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Computer Evidence

Criminal Justice Act 2003, s.129

129. Representations other than by a person

(1) Where a representation of any fact -

(a) is made otherwise than by a person, but

(b) depends for its accuracy on information supplied (directly or indirectly) by a person, the representation is not admissible in criminal proceedings as evidence of the fact unless it is proved that the information was accurate.

(2) Subsection (1) does not affect the operation of the presumption that a mechanical device has been properly set or calibrated.

These rules apply to all material from a computer.

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Unlawful obtaining etc. of personal data

Section 55 Data Protection Act 1998

Unlawful Obtaining etc. Of Personal Data

(1) A person must not knowingly or recklessly, without the consent of the data controller -

(a) obtain or disclose personal data or the information contained in personal data, or

(b) procure the disclosure to another person of the information contained in personal data.

(2) Subsection (1) does not apply to a person who shows -

(a) that the obtaining, disclosing or procuring -

(i) was necessary for the purpose of preventing or detecting crime, or

(ii) was required or authorised by or under any enactment, by any rule of law or by the order of a court,

(b) that he acted in the reasonable belief that he had in law the right to obtain or disclose the data or information or, as the case may be, to procure the disclosure of the information to the other person,

(c) that he acted in the reasonable belief that he would have had the consent of the data controller if the data controller had known of the obtaining, disclosing or procuring and the circumstances of it, or

(d) that in the particular circumstances the obtaining, disclosing or procuring was justified as being in the public interest.

(3) A person who contravenes subsection (1) is guilty of an offence.

(4) A person who sells personal data is guilty of an offence if he has obtained the data in contravention of subsection (1).

(5) A person who offers to sell personal data is guilty of an offence if -

(a) he has obtained the data in contravention of subsection (1), or

(b) he subsequently obtains the data in contravention of that subsection.

(6) For the purposes of subsection (5), an advertisement indicating that personal data are or may be for sale is an offer to sell the data.

(7) Section 1(2) does not apply for the purposes of this section; and for the purposes of subsections (4) to (6), ´personal data´ includes information extracted from personal data.

(8) References in this section to personal data do not include references to personal data which by virtue of section 28 are exempt from this section.

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Records obtained under data subject´s right of access

Personal data section 1

´personal data´ means data which relate to a living individual who can be identified -

(a) from those data, or

(b) from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller,and includes any expression of opinion about the individual and any indication of the intentions of the data controller or any other person in respect of the individual.

Data Protection prosecutions are increasing annually but do not carry a custodial sentence.

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