Clive D.W. Feather
clive at davros.org
Wed Sep 14 12:23:21 BST 2011
Peter Fairbrother said:
> The first kind, who the intended recipient is, is almost entirely clear.
> Intention exists only in the human mind, and in this case the only mind
> involved is that of the sender. It is what is in his mind which counts,
> and the intended recipient of a communication is the recipient he has in
> mind when he sends the communication.
> Someone reading the address of a misaddressed communication might
> believe that the intended recipient was someone other than the recipient
> the sender intended, but he would be mistaken - the actual intended
> recipient is always the person the sender intends to receive the message.
While they might be mistaken, is that mistakeness sufficient to negate mens
rea? I suspect this would be a question of fact for the jury rather than a
question of law.
> The second kind of intent, which is required for a person's actions to
> be a crime, is less clear. ss.1(1) says "It shall be an offence for a
> person intentionally and without lawful authority to intercept..."
> But intention to do what? Intention to intercept? Intention to intercept
> without lawful authority?
The former. If it meant the latter it would say "intentionally to intercept
without lawful authority". It's clear, at least to me, that this is parsed
a person ((intentionally to intercept ...) and (without lawful
authority to intercept ...))
> Does a genuine but mistaken
> belief that a person's actions have lawful authority, while knowing
> those actions to be interception, prevent those actions from being an
> offence? I am not clear on that point.
Surely that's exactly the point on which Cliff Stanford got convicted? He
believed he had lawful authority, and he even had a QC's opinion to back
> Further, interception was defined in section 2, and later the definition
> may be refined by Judges, but seldom will a person decide his actions on
> exactly that definition.
> If a person genuinely believes his actions are
> not interception then they are not an offence under ss.1(1), as it is
> not his intention to intercept.
However, a person is deemed to know the law. So the question is not what
he thinks that "interception" means, but what it *actually* means.
So if he is misinterpreting s.2, he's still committing an offence. If he's
misinterpreting the *facts* as to whether his actions are (say) "modifying"
(e.g. he didn't realize that the wire he attached the crocodile clips to
was part of a public network) *then* he has a defence.
> It is even unclear whether a person's intent is relevant. It is quite
> possible to interpret "as to" to have strictly the meaning that the
> outcome of the potential interceptor's actions is or would have been
> that content was made available, irrespective of what was in the
> potential interceptor's mind.
I don't think a court would accept this was a strict liability offence,
because there's none of the wording that would imply that.
Clive D.W. Feather | If you lie to the compiler,
Email: clive at davros.org | it will get its revenge.
Web: http://www.davros.org | - Henry Spencer
Mobile: +44 7973 377646
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