Private Prosecutions – Scissors and Scythe
(CLRNN 2. Private Prosecutions)
Dr Jonathan Rogers
Co-Director of the CLRN Network and Project Lead on Private Prosecutions
As many of our readers know, the Justice Select Committee (JSC) considered safeguards against inappropriate private prosecutions last summer. Since we were (and still are) undertaking a project on private prosecutions, we were among those who gave both written and oral evidence. On 2nd October 2020, the JSC made a number of recommendations for the Ministry of Justice (MoJ) to consider.
Most of the JSC’s recommendations were concerned with measures which might directly or indirectly reduce the risk of miscarriages of justice. But they included two recommendations on costs that can be recovered by those who have prosecuted privately. One has been accepted by the MOJ already, in its recent response on 2nd March 2021, and they are “minded” to agree to the second.
It is those two recommendations on costs on which I focus now. In this post, the main question of principle will be “what proportion of prosecutor’s costs should a convicted defendant (of reasonable means) pay to any prosecutor – whether it be a public or private prosecutor?” All of them? Most of them? Just a modest contribution?
I suspect that most practitioners are inclined to assume that defendants should bear substantial amounts of the prosecution’s costs (with adaption to the means of the defendant). For my part – I cannot speak for the network as a whole – it seems that the case for requiring only a modest contribution is stronger; and again, no matter whether it is a public or private prosecutor. I present my reasoning here but would welcome feedback from readers, including any reference to academic literature on the matter.
The two costs proposals
Quotes first, explanations afterwards. The JSC, apparently influenced by the CPS, had made the following recommendations on costs in October 2020:
The Committee agrees with the CPS that the Government should urgently review funding arrangements for private prosecutions in order to address the inequality of access to the right; to ensure a fair balance between the prosecutor and the defendant; and to ensure the most cost-effective use of public funds. We acknowledge the proposal made by the Centre for Women’s Justice that private prosecutors’ recoverable costs should be capped at legal aid rates. We think there should be no disparity between the claims that can be made from central funds by prosecutors and defendants. We also support the proposal made by the CLRNN that defendants prosecuted by private prosecutors should pay no more than would be paid had they been prosecuted by the CPS. [Para 37]
The MoJ replied in March 2021:
We agree with the Committee that the present arrangements for funding private prosecutions are inequitable as between prosecutors and defendants, and do not always represent a cost-effective use of public money. We agree, in particular, that the costs recoverable from central funds by a private prosecutor should be limited in the same way that costs so recoverable by an acquitted defendant already are, by being capped at legal aid rates. This will require an amendment of the existing legislation. We are also minded to agree that costs recoverable by a private prosecutor from a convicted defendant should be limited, either by being capped at legal aid rates or by reference to what the CPS would have sought, but we wish to consult further on this. We also intend to reflect further, and if appropriate consult, on whether there should be a wider discretion to reduce or withhold payment of costs from central funds in the event of an acquittal. [Annex, Para 3; emphasis added]
So, the first proposal (apparently, already a decision) is that private prosecutors should be restricted in the amount of costs that they can recover from central (governmental) funds. The MoJ would restrict recoverable amounts to those which would be paid under legal aid rates, with the effect that the private prosecutor could only recover the smallest amount of his expenditure no matter how complex and well conducted the prosecution was.
The “justification” for this scything movement is that this would put the prosecutor in the same miserable position as every successful defendant! (Levelling down is, indeed, easier than levelling up; and evidently too it is better not to conduct any impact assessments in respect of acquitted defendants over the last ten years).
The second proposal is that private prosecutors, when successful, should not recover much by way of their costs from convicted defendants either. Here too there should be a cap so that defendants are not asked to pay significantly more than they would have been ordered to pay the CPS. The MoJ is “minded” to agree to scissor costs in this way, but it wishes to consult (or consult “further”, as it says, though it is not obvious that it has so far “consulted” anyone but the CPS).
As you can see from the JSC passage, the second proposal had been suggested by us, and I say more of our reasoning below. For now, I ask you simply to observe that we only recommended a cap on costs recoverable from convicted defendants. We did not recommend the cap on recovery from central funds (first proposal) too, and the latter is entirely a venture of the JSC and, potentially, the MoJ.
Note that legal aid rates are roughly comparable to the level of costs claimed by the CPS from convicted defendants. In both cases they are a fraction of the costs which the private prosecutor would necessarily incur in engaging a solicitor from a reputable (by no means the most expensive) firm.
So, under the JSC/MoJ proposals the private prosecutor would likely still be substantially out of pocket, even when he was successful and thus able to make claims for costs incurred both from central funds (under Prosecution of Offences Act 1985, s.17) and against the defendant (Prosecution of Offences Act 1985, s.18).
Briefly, on the first proposal
I have criticised this elsewhere in 'Private Prosecutions - Cutting them Down to Size?', and many in practice are worried about the prospect of its passing. Ultimately, it is true that the private prosecutor will almost inevitably have paid much more in legal fees than would have been incurred if the work had been undertaken within the CPS. But often the CPS is simply under-resourced to do the work itself; it need not at all be the case that a prosecution brought privately was thought to be without merit by the CPS.
This is why so much complex white collar crime (copyright infringement besides fraud) ends up being prosecuted privately. The government’s own estimate is that £38 billion is lost in lost in the UK each year to fraud; other estimates put it as higher, even as far as £193 billion. At the same time, it is claimed that 96% of even reported frauds remain unsolved. No wonder that the MoJ, whilst radically cutting costs under s.17, also says, without acknowledgement of any inconsistency, that:
prosecutions brought by victims of crime themselves (whether corporate or individual) still have a valuable part to play...
This point, that often the private prosecutor has no choice other than to act for themselves, has been accepted by the courts, especially when deciding costs from central funds in cases where it was clear that the police (and thus the CPS) would not act. The critical part of s.17 (recovery from central funds) is s.17(2A):
(2A) Where the court considers that there are circumstances that make it inappropriate for the prosecution to recover the full amount mentioned in subsection (1), an order under this section must be for the payment out of central funds of such lesser amount as the court considers just and reasonable
In Fuseon Limited v Senior Courts Costs Office  EWHC 126 (Admin) the High Court held that the taxing masters below had deducted too much from the cost awards by comparing the costs claimed with those lower ones which would have been incurred by the CPS. In fact, it rejected exactly the approach which the MoJ has now decided to enact. It said:
It is, however, apparent from paragraph 68 of the Master's decision that he saw no problem in the designated officer having "allowed an hourly rate which may well be perfectly appropriate for administrative costs within the CPS", that being a figure "that does not look entirely out of place with other legally aided rates … ". The CPS accordingly remained central to the way in which the designated officer and the Master applied the Singh discount.
… I consider that the Court of Appeal authorities of R (Law Society) and Zinga are incompatible with the designated officer's decision in the present case (upheld by the Master) to introduce the CPS as a comparator for the purposes of applying the Singh discount. …
….As the evidence shows, Mr Laycock tried his best to get the police to take the case. His decision to institute the private prosecution was a last resort.
….There is no suggestion that the private prosecution was trivial. Although the designated officer and the Master were of the view that the mechanics of the prosecution of Mr Shinners were straightforward, it was, on any view a serious matter. The trial lasted 11 days and Mr Shinners received an immediate sentence of three years' imprisonment. There was, in short, a substantial public interest in seeing him brought to justice. [Paras 96 – 102]
So, when the MoJ now says that its preferred capping
will require an amendment of the existing legislation.
it means that it needs to force the judges to do something which they do not think is “just and reasonable”. He who wields the scythe must first amend the statute.
Naturally, there will be considerable disquiet about this. We ourselves think that the MoJ’s decision is baseless. But we turn to the second proposal – which we did recommend, to the JSC. As we shall see, it is much easier to support this reform to s.18 – but only if none is made to s.17.
Now, the second proposal
Recall that the convicted defendant can also be ordered to contribute to the costs of the prosecutor, whether public or private. It is for the court to decide the amount under s.18, again according to what is thought to be “just and reasonable”. That said the amounts claimed by the CPS may well often seem “just and reasonable” since they are calculated at a low rate, and still do not purport to be fully comprehensive as to the amount incurred. As we know, they always have their own budget to fall back upon.
Naturally, the private prosecutor will have incurred much more cost, but we still thought that he should not be recovering very much of it from the convicted defendant. I still think that this is right, for two reasons (the first of which is my own and not necessarily shared by the rest of the Network). To summarise the reasons already, they are:
A) We should allocate responsibility for costs primarily according to who (if anyone) ought to be responsible for bringing the proceedings; and where there is purported substantial public interest as is the case with criminal proceedings, that is the state.
B) Costs against defendants are potentially coercive towards guilty pleas.
A) We should allocate responsibility for costs primarily according to who (if anyone) ought to be responsible for bringing the proceedings; and where there is purported substantial public interest as is the case with criminal proceedings, that is the state
Sometimes, no one is “responsible”, in the sense of there being any moral duty, to start proceedings. This may be true of most civil suits. Exceptional cases apart, no one is quite “responsible” for starting them, and it would normally serve the public interest better if the litigants could settle out of court. So, we can reasonably do as we do, and not allocate responsibility for costs to any party in particular. Instead, costs follow the outcome: the burden falls on the unsuccessful one who ought not to have started (or the unsuccessful party who ought not to have contested) the proceedings.
Prosecutions, of course, are different. To start with public prosecutions: the CPS should only bring them if they are thought to serve the public interest, and we can reasonably talk of a duty to prosecute effectively, in extreme cases even a duty that is actionable under the Human Rights Act.
Assuming there to be public interest in the proceedings then, the state should primarily fund the prosecution. The responsibility of the criminals is for what they have done and for which they stand potentially to be punished. But it is insincere to say that they bear primary responsibility for the costs of the prosecution process itself. Criminals “deserve” punishment, but, punishment aside, it makes no sense to speak of “deserving” cost orders. Costs are about responsibility, not desert.
The situation does not change much when it is a private prosecutor. The working assumption has surely to be that there is public interest in his bringing proceedings too. If there were not, then the defendant should have asked the DPP to take over and discontinue the prosecution, which by virtue of his policy he or she would do. (The JSC did recommend that more should be done to alert all defendants to this possibility, and it is a matter of regret that the MoJ seems only to have considered the interests of the CPS in deciding that this was not “proportionate”).
From this it follows that private prosecutors, like the CPS, should look primarily to the state to fund its activities, and not to convicted defendants. (It might be possible to make a separate argument that the defendant himself is potentially a tax-payer who has already paid money to the state to use, inter alia, to enforce the criminal law. But such an argument should really not be needed).
Further, it is the state which creates the situation where certain offences have to be prosecuted privately, and thus more expensively. That is a reason not to deny recovery of most reasonably incurred costs under s.17, but it is also another reason to deny recovery of most costs against defendants, who did not design our criminal justice system in this way either.
It would be open for the courts to decide that it is “just and reasonable” to limit recovery under s.18 against defendants to the same levels as to the CPS. A certain step in this direction was taken in D Ltd v A and others  EWCA Crim 1604, where it was said that there should not be a “significant disparity” between the two. But less satisfactorily, it was held that no costs at all should be payable from central funds, due to various irregularities by the prosecutor, so while the case takes the capping point (or something similar) it quite overlooks that the state invariably has a greater degree of responsibility for meeting prosecution costs than does the defendant.
B) Costs against defendants are potentially coercive towards guilty pleas
The second reason was the one on which we relied when we recommended the cap to the JSC. It was related to the JSC’s over-riding concern about miscarriages of justice, and cognisant of the fact that many sub-postmasters pleaded guilty in the face of overwhelming odds, and, apparently, not because they accepted that they were guilty.
Indeed, defendants often lack the courage to fight their corner, and take pessimistic views of their chances, and this may apply equally to the innocent. Any rule which may apply pressure to plead guilty has to be scrutinised carefully, whatever its (different) intended effect might be.
From that perspective, s.18 is potentially wanting. There is nothing to stop successful private prosecutors from claiming far greater costs from the convicted defendant than the CPS might have done, and in some cases, far greater sums than the defendant would have been prepared to pay even for his own defence. Even if the judge might take a robust approach as to what is “just and reasonable”, there is usually the reasonable prospect that they will make a large order, and that is enough if we are thinking about possible pressures on the innocent to cut their potential losses by pleading.
Here then, we see another benefit to the CPS’ relatively modest claims against convicted defendants. Not only do they recognise the primacy of public funds supporting prosecutions, but also no one has yet suggested that they are a coercive factor towards guilty pleas.
The JSC accepted our recommendation, but as we saw above, it coupled it with their own recommendation of a further cut under s.17. Hopefully it can now be seen why this was never part of our reasoning, and why (for us) the cap was a stand-alone recommendation under s.18 only.
The focus in the immediate future is likely to be the case against the announced cuts under s.17. Hopefully it will succeed. Besides, who wants complex private prosecutions virtually to cease altogether? Not even the MoJ.
But I profess myself to be concerned that the MoJ might ultimately decide that the best way out is to abandon the capped costs under s.17, and also not to implement a cap under s.18. It might effectively say to private prosecutors “carry on for now – but claim as much as you can under s.18 when you get convictions, and as little as possible under s.17, else we may think again”.
Indeed, this would apparently be no problem for the Private Prosecutor’s Association. Their voluntary Code already states
The following general principles are applicable:
1. The purpose of a costs order is to compensate the prosecutor for their reasonably incurred (legal) costs.
2. A successful private prosecutor should, in the first instance, consider making an application against the defendant, before it considers an application for costs out of Central Funds….
As you can see, it is not a position with which I agree. But it is a ready-made compromise position between lawyers and the MoJ. Those who would lose out, namely convicted defendants, including innocent defendants who fear the consequences of being found guilty, do not have an effective voice at the table.
Is the CLRNN not pleased?!
You might think that it would be a red-letter day for a law reform network, when the MoJ announces that it is minded to act upon one of our recommendations. But I am far from celebrating. For me, there is an important distinction between a drastic cap under s.18 alone, and one under s.17 or even a combination of the two. The JSC and MoJ draw no distinctions, and propose both cuts in one paragraph, above. Further, as just mentioned, I suspect that if they do back down on the cut under s.17, they will do likewise under s.18.
But radical reform to s.18 alone, and merely greater transparency in regard to s.17, is the most defensible measure. It is not the cheapest option. But then, unless we think that fraud will go away by itself or somehow become less serious if left unpunished, there is only good way for the state to spend less on funding such private prosecutions; and that is to train and recruit sufficient police and CPS workers to deal with white collar crime, so that the public sector can then do the job at their lesser cost.
We are still working on our final conclusions on costs will appear in our report in the summer. In the meantime, if you have any views on defendants’ liability to pay prosecutions costs, do please let me know.
Introducing the ‘Drug Policy Voices’ project
(Relevant to the CLRNN Drugs Regulation Project)
Dr Melissa Bone
co-investigator for the Drug Policy Voices project, committee member of the CLRNN, co-project lead for the CLRNN “drugs regulation project”
Drug policy is firmly on the global political agenda, over the past decade we have seen significant changes to cannabis policy worldwide, researchers exploring the therapeutic efficacy of psychedelics and there has been a growing recognition that the UN drug Conventions are not fit for purpose. In a UK context we have seen legal changes to the scheduling of cannabis for medical use, an increase in drug related deaths, the introduction of drug diversion schemes, the establishment of drug checking services at festivals and debates about the introduction of safe consumption facilities. However, those with experience of consuming substances are often left out of drug policy debates.
Dr Rebecca Askew (the project lead) and I aim to address this through the ‘Drug Policy Voices’ research project, funded by the Economic and Social Research Council (ref: ES/R007225/1). This three-year project includes the voices of a variety of people with experience into debates about drug policy reform. We want to understand the experiences of people who use drugs and integrate their opinions and values into drug policy reform debates.
We launched our ‘Drug Policy Voices’ survey in January 2020 and we received over 1,300 responses. We were able to successfully target some of the typically ‘harder to reach groups’ including a statistically significant proportion of individuals who have been stopped and searched by the police, and/or individuals who have been in drug or alcohol treatment. Our survey collected data on demographics, substance use experiences and it asked key value-based questions on drug policy and drug policy reform.
We are currently writing the first of several academic articles on our survey findings, and if you would like to find out more information in the interim please do not hesitate to contact us (links below). You can also watch ‘An audience with Dr Rebecca Askew’, where Rebecca provides a clear overview of our initial findings so far: https://www.youtube.com/watch?v=0HjuoeP1_Tg
We are now in the process of conceptualising creative research methods to further engage and amplify the voices of people who use drugs in drug policy debates, and we have decided to launch a series of ten podcasts to aid us in this endeavour.
The podcasts will function as an educational, informative tool as well as being an entertaining broadcast medium. We will have structured segments each month which will include ‘counter-story telling’, giving a voice to a range of people with drug experiences, to address the narratives, stigma and stereotypes associated with people who use drugs. We will also incorporate a segment where people who use drugs i.e. ‘experts through experience’ ask ‘experts in drug policy’ policy related questions. One of our key themes will be to explore how the criminal justice system impacts people who use drugs, so please get it touch with me (email@example.com) if you would be interested in taking part in the ‘experts in criminal justice’ segment.
Our first podcast will be launched in January 2021. Please follow us on Instagram and twitter: @drugpolicyvoices for updates and you can find out more information about the project via our website: www.drugpolicyvoices.co.uk
Reforming the Computer Misuse Act 1990, and Cyber-Up
Dr Laura Noszlopy (CLRN Network Facilitator)
The team at CLRNN worked with a number of stakeholders during the drafting of the Reforming the Computer Misuse Act 1990 (CMA) report, and its Westminster launch in January 2020.
While the in-depth review of the CMA’s shortcomings and the recommendations for its reform are the result of independent, evidence-based research and analysis, we are keen to ensure that CLRNN’s work reaches beyond academia to affect real world policy change.
This is why our discussions in relation to the CMA involved representatives from the UK’s cyber security industry, to understand their concerns and take into account the barriers they face in relation to the law as it currently stands. Foremost of these was the major UK-based cyber security company, NCC Group.
NCC Group and other industry partners subsequently launched the CyberUp campaign, specifically to push for reform of the CMA: to update and upgrade the UK’s cyber crime legislation to protect our national security and seize the economic opportunity presented by cyber professionals. The national security and commercial aspects of reform were highlighted in CLRNN’s report, and widely reported in the media, but the journey to see the recommendations implemented continues. As such, CLRNN is pleased to share the efforts of the CyberUp campaign to press for reform of the law.
The CyberUp campaign’s position is as follows:
The current legislative framework runs counter to the UK’s stated policy objective to promote public-private partnership to combat cyber crime. The UK’s cyber security industry is unable to deploy its full capabilities in the pursuit of national security. Reform is needed to:
1) Amend the law to allow cyber security and threat intelligence researchers acting in the public interest to explain and justify their actions and to allow the detection or prevention of crime.
Create clear legal definitions to ensure that cyber security and threat intelligence researchers who reasonably believe they have authorisation to act can legitimately do so.
2) The CMA criminalises individuals who attempt to access or modify data on a computer without authorisation. This often involves cyber-attacks like malware or ransomware attacks which seek to disrupt services, obtain information illegally or extort individuals or businesses.
But Section 1 of the CMA, prohibiting unauthorised access to computers, inadvertently criminalises a large proportion of cyber security and threat intelligence research and investigation by UK cyber security professionals. This is because the law punishes behaviour without any regard for the motivation of those carrying it out which offers no protection whatsoever for professional researchers acting in good faith.
The cyber security industry works closely with law enforcement and intelligence agencies to defend the UK against cyber crime and geo-political threat actors. But the restrictions in gathering high quality actionable intelligence make it highly challenging to stay ahead of hostile threat actors and cyber criminals as governments alone cannot provide the required capacity.
It is essential that reform takes place in a way that addresses the risk of misuse or exploitation of any legal changes by individuals with dishonest or criminal motives.
The CyberUp campaign is exploring options to create a regime of approval and accreditation of eligible providers, signing of an individually applicable strict ethics code of conduct, a commitment to maintain and share auditable logs of all activities and an obligation to pass on all intelligence and information to the appropriate authorities.
CyberUp has been very clear that they do not support ‘hacking back’ – where a security researchers’ activities entail the disruption or degradation of the investigated systems and infrastructure. These ‘offensive’ cyber activities should remain the prerogative of the state. Nonetheless, reform of the CMA is overdue.
For more information on the CyberUp campaign, please visit https://www.cyberupcampaign.com/news/cma-report-launched-in-parliament
Computer Misuse Act an inhibitor to CyberSecurity?
I am looking forward to the launch of the CLRNN (@CLRNNetwork, http://www.clrnn.co.uk/) report Reforming the Computer Misuse Act 1990 on January 22. I am a major contributor.
The key to understanding the Act was that from the outset it was designed to fill in gaps in the existing legislation rather than to provide a comprehensive response to whatever you think "cybercrime" is. Most cybercrime can now be charged under existing legislation including the Fraud Act 2006, extortion/blackmail, Data Protection Act 2018 and the various Terrorism acts. Computer misuse is only invoked as a primary means of prosecution when none of these appear to be satisfactory. Indeed there are frequent occasions in which the Computer Misuse Act has clearly been breached but where prosecutors decide not to pursue charges with any vigour or indeed at all because success would be unlikely to alter the court's view of punishment in the event of conviction.
(This is one of the reasons why there appear to be so few prosecutions under the Computer Misuse Act and why it may be misleading to consider convictions under the act as reliable indicators of the extent of cybercrime).
The main offences - unauthorised access, unauthorised access in pursuit of a further criminal offence, and unauthorised system impairment - do not appear to require substantive modification.
The main problem is that, although this was never the intention, the act is an inhibitor to cyber security investigations and research. The reason is that the whole framework of the three main offences is based around the concept of "unauthorised". It turns out that authority to access a computer for any purpose can only be given by the owner of that computer or someone clearly delegated on their behalf – s 17. So far so apparently sensible. But these days computer systems are not self-contained stand-alone devices but rely on a constant supply of external input such as material from the web and data streams from other sources. Employees, sub- contractors and others may be being granted remote access from their own devices. In addition much of the processing might take place on devices which are not owned by the company or organisation using them – as in use of cloud services, outsourcing contracts and external archiving for email and other documents.
Where then are the boundaries between what an organisation can "authorise" and the outside world? The answer may or may not be in complex contracts of service and supply. This creates a difficulty for those carrying out penetration testing (otherwise known as ethical hacking and designed to look for weaknesses in an organisations computer systems) and for those carrying out investigations and seeking to find causes and those responsible for them. There is also a problem for researchers and academics and also for organisations offering threat intelligence. Threat intelligence, at its best, offers not only advice on generic threats but on new specific sources of threats including hostile actors. Customers of threat intelligence use it to devise their own detailed security precautions.
All of these activities require investigators to look beyond the boundaries of any one specific computer system. At the moment the only organisations entitled to carry out these activities are law enforcement and the intelligence agencies which have specific "savings" in section 10 of the Act.
The public policy issue, therefore, is that under current law only law enforcement and the National Cyber Security Centre (NCSC) which is part of GCHQ, appear to be the only UK bodies that can carry out threat intelligence beyond a corporate boundary. This places a significant limit on the resources available to identify threats and also on the range of threats investigated; law enforcement will concentrate on events likely to have criminal prosecution outcomes, NCSC’s central remit is state security. The current legal framework therefore runs in direct opposition to repeatedly stated national policy of partnership working across public and private sector, effectively preventing industry from deploying its technical capabilities in the pursuit of national cyber security objectives.
The answer appears to be some sort of “public interest” defence but this would need to be very tightly defined so as not to be abused by recreational hackers.
The report also looks at issues of international jurisdiction, corporate liability (can organisations as opposed to individuals be charged under the Act?) and guidelines for the handling of young and “neurologically diverse” defendants.
I am very interested in responses to the detailed analyses and recommendations.
Cybersecurity and the UK Election: How Current Cyber Laws are Making the UK Less Safe
J.J. Child, Birmingham Law School, Co-Director of the Criminal Law Reform Now Network
All major political parties recognise the growing threat posed by computer misuse and the corresponding need to ensure an effective and co-ordinated cybersecurity regime. Computers are everywhere, from the control and coordination of our national infrastructure to our smartphones and home devises; and yet the principal criminal legislation (the Computer Misuse Act 1990) is both out of date in its content and conspicuously underused as a tool for prosecution. This year’s party manifestos recognise something of this problem, and they promise action.
The Conservative manifesto champions a new ‘cyber-crime force’, a strengthened National Crime Agency (NCA), and modernisation and training for police. Similarly, Labour focuses on training and investment for ‘modern’ cyber policing and reforming the NCA, as well as going further to suggest a review of the National Cyber Security Centre and the creation of a new Minister for Cybersecurity. The Liberal Democrat position, though perhaps more focused on the ethical dimension of new technologies, also recognises the need for investment in cyber policing.
Investment into the policing and prosecution of cybercrime is sorely needed. However, the rush to promise funds for increased policing only engages with part of the problem. Missing from each manifesto is an explicit pledge to reform current offences within the Computer Misuse Act 1990, and yet such reform is vital if the parties are to achieve their desired ends in terms of added security and safety online. The current legislation was created for a different time, and it approaches cyber offences through the blanket criminalisation of all ‘unauthorised’ access, supplemented with even broader provisions criminalising preparatory acts and the trading of equipment used for unauthorised computer access.
Overly broad offences of this kind result in perverse effects. Rather than providing tough regulation, non-culpable journalistic and academic research can be inadvertently criminalised; it has the same impact on the private cybersecurity operators that so many of us (including public bodies) rely upon for effective defence. In this manner, whereas cybersecurity operators from other jurisdictions can work freely in the public interest to police network defences, and to report cyber attack details to the public authorities, such activities in the UK are severely blunted (or are carried out under a cloud of potential prosecution).
The Criminal Law Reform Now Network is a group of leading practitioners and academics specialising in legal reform projects. The Network’s first report – Reforming the Computer Misuse Act 1990 - will be launched in Westminster on the 22nd January 2020 and available open access from www.clrnn.co.uk. The recommended reforms are simple and targeted, creating new public interest defences in line with other modern statutes, as well as clarifying advice on prosecution and sentencing. If the UK political parties are serious about investing in cyber defence, and we hope that they are, modernising the legal framework provides essential missing pieces to the puzzle.