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Sunday, September 18, 2011

Essay on UK Law against Cybercrime

The Computer Misuse Act of 1990 is the relevant law that establishes jurisdiction on the United Kingdom for violation of cybercrime.  The crimes covered by the law are various acts of computer misuse which are defined under Section 1 to 3 which include unauthorized access to computer material, unauthorized access with intent to commit or facilitate commission of further offense and unauthorized modification of computer material.

As a rule, UK adheres to the principle of territoriality. However, in the event that the offense takes place outside of the United Kingdom, it shall still have jurisdiction to try the perpetrator of the crime under the Computer Misuse Act of 1990. The relevant provisions are Section 4 and 5 which states that it is not necessary for the cybercrime to be committed within the territory of United Kingdom so long as the offense is significantly linked to the United Kingdom.  Thus, even the act committed is not a crime in the place of commission but it is a crime in United Kingdom and it is established that the offense is significantly linked to it, the Computer Misuse Act of 1990 may be applied for purpose of prosecution.

Since the United Kingdom is a member of the European Union, the deficiency in the cybercrime laws of United Kingdom may be supplemented by the Council of Europe Cybercrime Convention. Section 3 Article 22 of the said treaty provides for the rules when the contracting parties to the treaty are obliged to establish jurisdiction over the criminal offense. Paragraph (a) is a restatement of the principle of territoriality which is a basic characteristic of criminal law. It states that the contracting parties shall adopt legislations necessary to punish the commission of crimes defined in the treaty that are committed within its territory.

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Paragraph (b) and (c) are also based on the principle of territoriality. When the crime is committed on board a ship or an aircraft registered under the laws of Japan while passing through the territory of United States, is Japan deprived of its jurisdiction to prosecute the offense. Following paragraph (b) and (c) the treaty requires that contracting parties to establish jurisdiction over criminal offense committed inside its ship or aircraft registered under its name. As a matter of legal principle the crimes committed inside the ship or aircrafts of a particular nation even when they are outside its territory are still considered committed within its territory since they are considered as extensions of the territory of the state.

Paragraph (d) on the other hand is a restatement of the principle of nationality as basis for conferring jurisdiction upon a state. It states that the nationals of a particular state are not immune from criminal liability of their own state even if they are outside its territory. They are still obliged to comply with their domestic law even when they are beyond the territory of their own state. For instance, a British man who goes to a country which does not have a law against hacking and while within the territory of the country uses a computer to hack through a computer of another country is still within the jurisdiction of his own state.

In 2003, a new extradition treaty between the United Kingdom and Northern Ireland and the United States of America was signed among the parties.  The new extradition treaty which is a supplementary to the extradition treaty signed at London in 1972 and amended by Supplementary Treaty signed at Washing on June 25, 1985, is a reflection of the modern practice in extradition. 

It states that any crime that is punishable by a maximum sentence of or more in both the requesting and the requested state is extraditable.  In Article 2, the new treaty states that “An offense shall be an extraditable offense if the conduct on which the offense is based is punishable under the laws in both States by deprivation of liberty for a period of one year or more or by a more severe penalty.”

It is worth noticing that the new treaty avoided making an enumeration of extraditable offense which was done in the 1972 treaty.  With the use of dual criminality clause in Article 2, there is no longer any need to amend or supplement the new treaty as new offenses become punishable under the laws of both states.  The new treaty therefore looks forward into the future by including any other offenses that may be punishable under the laws of both states by imprisonment of one year or more.

Moreover, the new treaty encompasses offenses which are previously not punishable under the 1972 treaty.  Thus, new treaty also looks backward by covering all offenses although not previously mentioned in the 1972 treaty.

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