zenadsl6186 at zen.co.uk
Wed Sep 14 17:07:01 BST 2011
Clive D.W. Feather wrote:
>> 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
> him up.
Good point, I had forgotten about Stanford. I think you must be right
about that interpretation.
>> 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.
Might a Judge think his actions, which amount to interception even
though he does not realise it, are intentional, and that alone is
sufficient? I don't think so.
I think there is a requirement for him to know his actions amount to
interception for his interception to be intentional. It isn't about
whether his actions are interception, but whether he thinks they are.
And I don't see that the reason his thinking is mistaken matters at all
to that point.
But this also concerns a point of law - whether his good-faith mistake
of law is exculpatory; I think it is, see s.8 Criminal Justice Act 1967,
and under RIPA s.1(1) intent is a required element of the crime - which
isn't really relevant here.
>> 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.
Agreed. That doesn't prevent a Judge taking that interpretation however
- there is after all a requirement for intent in s.1(1), which would
prevent strict liability.
Actually it's quite a good interpretation, one I prefer - it makes
things much simpler without breaking anything. A Judge might disagree.
But perhaps you misunderstood me? - the paragraph is quoted in
isolation. When I said "It is even unclear whether a person's intent is
relevant" I meant that only in the context of the words "as is". It is
of course relevant in other ways.
-- Peter Fairbrother
More information about the ukcrypto