Police drop BT-Phorm probe

[Peter Fairbrother]

Nicholas Bohm wrote:
> Peter Fairbrother wrote:
>> El Reg
>> http://www.theregister.co.uk/2008/09/22/bt_phorm_police_drop/
>>
>> "One of the main reasons for this decision is the lack of Criminal 
>> Intent on behalf of BT and Phorm Inc in relation to the tests."
>>
>> Would interception be an offence of strict liability? Shouldn't it be?
> 
> No, I think it needs the ordinary mens rea of intending to do the acts 
> that constitute the relevant parts of the offence.  Very few offences 
> (if any) require an intent that a crime be committed, and this certainly 
> isn't one of them.  So this "no intent" point reveals the very dimmest 
> possible failure to engage brain before operating wordprocessor.
> 
>> If so, is a lack of criminal intent irrelevant? And once it has been 
>> pointed out that an act is an offence - as is implicit in basing the 
>> decision not to proceed on a lack of criminal intent - can they go 
>> ahead and do it again?
>>
>>
>> "It is also believed that there would have been a level of implied 
>> consent from BT's customers in relation to the tests, as the aim was 
>> to enhance their products."
>>
>>
>> That sounds very thin indeed - and ignores the requirement for consent 
>> from the web page owners.
> 
> "Implied consent" requires some circumstance which implies something 
> about the customer's state of mind, and clearly cannot be present where 
> the customer knew nothing about what BT was doing and cannot therefore 
> (e.g. by not objecting) be supposed to have consented or given even a 
> hint of any attitude at all.  This is a very bad point, even if you 
> ignore the dual consent requirement.
> 
> This police response is just cretinous.  I would have a lot more time 
> for them if they said, "Yes, well, there do seem to have been offences, 
> at least arguably; but there's some tricky law in there (namely RIPA 
> s3(3)) which would mean expensive lawyers and might mean appeals, and 
> almost no real harm was done (though we can see a few people were messed 
> about a bit); and BT almost certainly won't do the same thing again if 
> they deploy with customer consent.  So it's not really right for us to 
> spend public money on it, it's a matter for regulators rather than the 
> police, or for private parties to spend their own money on."  I wouldn't 
> agree with this, but it would at least be honest and to the point.
> 
> Nick

  Would this then be a suitable case for judicial review?

-- Peter Fairbrother