Police drop BT-Phorm probe

[Nicholas Bohm]

Peter Fairbrother wrote:
> 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?

I would have thought so, at least on the basis that the decision not to 
prosecute was flawed by errors of law about criminal intent and implied 
consent.  The "not worth the expense" point remains, though, so this 
doesn't sound a fruitful avenue.  I much prefer to wind up the website 
owners to assert themselves a little - it's their financial interests 
they would be defending.

Nick
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