Phorm again

[Nicholas Bohm]

Peter Sommer wrote:
> Roland Perry asks:
> 
> is an automated machine a person according to RIPA?
> 
> RIPA doesn't have a view and the various legal precedents go in opposite 
> directions. A computer cannot be deceived for the purposes of fraud but 
> can, apparently, be incited.
> 
> In the Law Commission’s 2002 Report CM2550 which lead to the passing of 
> the Fraud Act, it was said at para: 3.34
> 
> A machine has no mind, so it cannot believe a proposition to be true or 
> false, and therefore cannot be deceived. A person who dishonestly obtains a benefit by
> giving false information to a computer or machine is not guilty of any deception offence.
> 
> 
> But in the case of O’Shea _: [2004] EWHC 905 (Admin) _ a case about 
> incitement to commit offences under the Protection of Children Act, 
> 1987, the Court of Appeal concluded that a computer, or rather the 
> person behind it, could be incited. (You go to a website offering a 
> subscription to pictures of child abuse, you pay the subscription and 
> then you incite the computer, or its owner, to send the pictures to you, 
> which is a criminal offence. Or that's what the Court of Appeal, so far 
> unchallenged, thinks).

The Law Commission took a narrow view, ignoring the owner's mind 
hovering behind the machine, while the Court of Appeal took a broad view 
of a more commonsense kind.  It's constitutionally a bit odd for a court 
to take a broad view in order to uphold a conviction, but oddities 
flourish when people are exhorted to think of the children.

This suggests that both views remain open, at least at House of Lords level.

Nicholas
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