Potential Liability under Criminal Law - Essay Example

Introduction The factual scenario raises complex issues of potential liability under criminal law and in particular the problematic offence of terrorism. It is evident that the post-September 11 socio-political climate has heightened the international community’s attention on the growing problem of terrorism (Williamson, 2009). In addition to acknowledging the global nature of terrorism, a central problem has been the ability to define what constitutes terrorism within the international legal framework in particular (Bianchi & Naqvi, 2004). For example, previous United Nations Security General Kofi Annan commented that whilst governments differed on their stance regarding the definition of terrorism at state level, what is clear and what we can all agree on is any deliberate attack on innocent civilians, regardless of one’s cause, is unacceptable and it fits into the definition of terrorism” (In: Lind, 2005). Nevertheless, the uncertainty of what constitutes terrorism under international law has manifested at national level with difficulty in distinguishing between state and non-state terrorism (Williamson, 2009). In considering whether the acts in the current scenario constitute acts of terrorism, this paper will consider the position under UK law, with specific reference to the Terrorism Act 2000. Section 1(2) of the Terrorism Act 2000 provides that an act of “terrorism” includes any act that includes the following “(a) involves serious violence against a person, (b) involves serious damage to a property, (c) endangers a person’s life, other than that of a person committing the action; (d) creates a serious risk to the health and safety of the public or a section of the public, or (e) is designed to seriously interfere with or seriously to disrupt an electronic system” (Section 1(2) of the Terrorism Act 2000). Additionally, Section 1(2) of the Terrorism Act 2000 provides that terrorism includes the use of firearms or explosives and includes action outside the United Kingdom. Furthermore, Section 2(5) of the Terrorism Act 2000 provides that the section 1(2) definition regarding acts of terrorism include any such acts taken specifically for the benefit of a “proscribed organisation”. With regard to the current scenario, the group of individuals are part of “Abort Abortion” and whilst they are not listed as a proscribed organisation under Schedule 2 of the Terrorism Act 2000, the individual acts may nevertheless constitute acts of terrorism under section 1 of the Terrorism Act 2000 and this paper shall consider each act in turn. 2 Alison’s liability for sending photos of aborted foetuses to the doctors who have been previously targeted. Alison’s campaign of sending the photos to the doctors whilst unpleasant hasn’t caused serious damage to person or property and it will difficult for this conduct to fall within the other sections of section 1(2) to constitute an act of terrorism under the Terrorism Act 2000. Additionally, the photos have been sent merely as a reminder of the horrors of abortion, with no specific threat. However, it is possible that Alison could face liability for harassment under the Protection from Harassment Act 1997. Section 1(1) of the Protection from Harassment Act 1997 provides that individuals must not engage in conduct which: a) Amounts to harassment of another; and b) Which they know or ought to objectively know constitutes harassment (Section 1(1) of the Protection from Harassment Act 1997). The test for determining harassment is objective and Section 2(1) of the Protection from Harassment Act 1997 provides that if an individual’s act constitutes harassment in line with the section 1(1) definition, the conduct will constitute a criminal offence. If we apply this by analogy to the current scenario, it is evident that the photos have been sent to the doctors before and that they have been targeted. The images are disturbing and as the photos have been sent repeatedly, there are strong grounds for Alison’s conduct constituting harassment under section 1 of the Protection from Harassment Act 1997. Accordingly, Alison will most likely have committed the offence of harassment and is potentially liable for six months imprisonment on summary conviction or a “fine not exceeding level 5 on the standard scale”; or alternatively both a prison term and a fine (Section 2(2) of the Protection from Harassment Act 1997). Additionally, the Protection from Harassment Act 1997 implements a statutory tort of harassment and on this basis the doctors targeted could also institute civil proceedings to obtain an injunction to prevent further harassment and also claim compensation (Protection from Harassment Act 1997). 3 Bilal’s Liability for Hacking into the NHS database system and spreading a virus Bilal’s actions have been undertaken on behalf of Abort Abortion and the cause to stop abortions. Irrespective of whether or not Abort Abortion falls within the category of proscribed organisation in Schedule 2 of the Terrorism Act 2000, there is a strong likelihood of Bilal’s actions constituting an act of terrorism under Section 1(2)(e) of the Terrorism Act 2000 especially as it is being done for the purpose of advancing an ideological cause (Section 1(1)(c) of the Terrorism Act 2000). Moreover, Bilal hacked into the NHS database system and spread a virus in the computer system. As such, this will most likely fall within the section 1(2)(e) definition of being an act “designed to seriously interfere with or seriously to disrupt an electronic system” (Section 1(2)(e) of the Terrorism Act 2000). Additionally, hacking into the NHS database and spreading a virus could also constitute an offence under the provisions of the Computer Misuse Act 1990 and the Police and Justice Act 2006. The main legislative provisions dealing with computer misuse is the Computer Misuse Act 1990 (“the Act”). With regard to the unauthorised access and attempted intrusions into the NHS database by Bilal this could constitute an offence under the Act of the conduct satisfies the requirements as follows: 1) Unauthorised access to computer material (Section 1 of the Act); 2) Access to computer material without authorisation with intent to commit or assist the commission of offences (Section 2 of the Act); and 3) Modification of computer data without authorisation (Section 3 of the Act). Furthermore, the Police and Criminal Justice Act 2006 significantly widened the definition of misuse and Section 36(2) of the 2006 Act widens the ambit of Section 3 of the Act by providing that “unauthorised acts” within the Section 3 definition include intention to do the following: “a) Impair the operation of any computer; b) To prevent or hinder access to any program or data held in a computer; or c) To impair the operation of any such program or the reliability of any such data; or d) To enable any of the things mentioned in paragraphs (a) to (c) above to be done” (Section 36(2) Police and Criminal Justice Act 2006). Accordingly, if we apply this to the current scenario, it is evident that the Bilal’s conduct will constitute a criminal offence under Section1 and Section 3 of the Act. With regard to potential penalties, the Police and Criminal Justice Act 2006 provides for criminal liability on the following basis to be included in the Act for the Section 3 offence: 1. On summary conviction a prison sentence of up to 12 months and a fine not exceeding the statutory minimum; or 2. On conviction on indictment, imprisonment for a term not exceeding ten years or a fine or both (Section 36(6) of the Police and Criminal Justice Act 2006). With regard to spreading the virus into the NHS database, under the Act, the term “misuse” has been extended to criminalise computer security research and defence software tools, making it illegal to download, write, amend or modify anything which could be used to commit a computer hacking or denial of service attack (Police and Criminal Justice Act 2006). However, as highlighted above, Section 36 of the Police and Justice Act 2006 specifically extends the Act’s provisions regarding unauthorised modification of computer material and as a result, provides that introducing and spreading viruses into a computer system will constitute a criminal offence. Furthermore, the 2006 Act highlights that it is not necessary to demonstrate that the criminal intention was directed to a specific program or computer. Accordingly, in addition to the offence for hacking into the system; the spreading of the virus will constitute a criminal offence and be subject to the same penalties as provided for in Section 36(6) of the Police and Criminal Justice Act 2006. 4 Colin’s liability for the fire bomb at the local abortion clinic. As highlighted above, Section 1 of the Terrorism Act 2000 includes any act which involves “serious damage to a property” (Section 1(2)(b) of the Terrorism Act 2000). Moreover, Section1 (2) of the Terrorism Act 2000 clearly provides that the use of any explosives or firearms will be included within the definition of the “terrorism”. Therefore, in firebombing the local abortion clinic, Colin was clearly causing serious damage to property and thereby committed an act of terrorism under section 1(2)(b) of the Terrorism Act 2000. Additionally, it is not clear from the factual scenario whether there were any casualties at the clinic, however if there were, Colin’s actions would also constitute an act of terrorism on grounds of being an act involving “serious violence against the person” under Section 1(2)(a) of the Terrorism Act. Similarly, in creating a risk of danger and injury, Colin’s actions will also constitute an act of terrorism on the basis of endangering life and creating a serious risk to health and safety of the public under sections 1(2)(c) and 1(2)(d) of the Terrorism Act 2000 respectively. 5 Diana’s Liability for ringing up the constituency office of her Member of Parliament and threatening to contaminate the water; It is unclear from the facts whether Diana has actually followed through with the threat to contaminate the water however she has clearly created a risk of danger and a risk to the health and safety of the public at large due to the large population served by the water supply. On this basis, it is highly likely that Diana’s actions will constitute an act of terrorism on the basis of endangering life and creating a serious risk to health and safety of the public under sections 1(2)(c) and 1(2)(d) of the Terrorism Act 2000 respectively. Even if the threat hasn’t been carried through, the Terrorism Act 2000 includes both the “use or threat” of action (Section 1(1) of the Terrorism Act 2000). Additionally, it is evident that Diana’s conduct was “made for the purpose of an ideological cause” as provided for by section 1(1)(c) of the Terrorism Act 2000. In addition to pursuing this cause, Diana’s threat is being made as an attempt to change government policy and therefore falls within the section 1(1)(b) definition of terrorism which provides as follows: “1(1) Under this Act, “terrorism” means the use or threat of action where- (b) the use or threat is designed to influence the government”. Accordingly, this reinforces the fact that Diana’s conduct will most likely constitute an act of terrorism under the Terrorism Act 2000. 6 Eduardo’s liability for encouraging a bomb outside the army barracks in his country. With regard to Eduardo’s conduct, whilst not committing the act himself, in encouraging the anti-abortion group in his country to use a bomb at the army barracks in his country, Eduardo is clearly endangering lives and creating a risk to the health and safety to a section of the public at the army barracks. Additionally, Eduardo’s conduct is motivated by an ideological cause which is anti abortion and against his country’s government policy of forced abortions. As such, his conduct is highly likely to constitute an act of terrorism under Section 1 of the Terrorism Act 2000. The fact that Eduardo’s conduct is directed overseas and against his country’s government will not preclude the act falling within the Section 1 definition of terrorism as Section 1(4)(a) of the Terrorism Act 2000 specifically includes any acts that are undertaken “outside the United Kingdom”. Additionally, Section 1(4(d) of the Terrorism Act 2000 provides that when considering acts or threats against a government, the definition of government includes countries “other than the United Kingdom” (Section 1(4)(d) of the Terrorism Act 2000). 7 Conclusion In summary, Alison’s conduct will probably fall outside the definition of terrorism. However, she could still face criminal liability for harassment under the Protection from Harassment Act 1997. On the other hand, Bilal’s hacking of the NHS system and spreading of the computer virus will constitute an act of terrorism in addition to criminal liability for computer misuse under the Act and the Police and Criminal Justice Act 2006. Colin’s firebombing of the local abortion clinic will constitute terrorism under the Terrorism Act 2000 as will Diana’s threat to contaminate the water. Finally, Eduardo’s call to an anti abortion clinic in his country encouraging them to bomb the army barracks will also constitute an act of terrorism under section 1 of the Terrorism Act 2000, which specifically includes acts of terrorism overseas targeted towards governments overseas. BIBLIOGRAPHY Bianchi, A. & Naqvi, Y. (2004). Enforcing International Law Norms Against Terrorism. Hart Publishing Lind M. “The Legal Debate is Over: Terrorism is a War Crime” (2005) New America Foundation- May 2 2005. Available at www.newamerica.net/publications/2005/the_legal_debate_is_over_terrorism_is_a_war_crime. Accessed on March 2011. Williamson, M (2009). Terrorism, war and international law. Ashgate Publishing Legislation Computer Misuse Act Protection from Harassment Act 1997 Terrorism Act 2000 Police and Justice Act 2006 All legislation available at www.legislation.gov.uk accessed March 2011. Read More