Chapter 21 Answer guidance to end of chapter questions

1. According to the House of Commons e-crime report, ‘the majority of cybercrimes could be prevented by better awareness by the user’. Do you agree? Provide examples from the crimes we have discussed in this chapter.

This is an extremely open question. Essentially it is asking students to focus on the deception element of much cybercrime and to examine whether or not a programme of education may be better than a programme of criminalization. A good answer would discuss a variety of criminal activities including online fraud and identity fraud (including phishing); harassment and cyber stalking (including grooming) and sexual communication with a child. The legal responses may be compared to education and so-called digital literacy to examine whether investment in greater awareness and literacy may be more effective than criminalization in such cases. 

2. Is the UK law on grooming sufficiently robust to adequately protect children online? Does the law of harassment adequately protect adults?

To answer this question I would expect the student to discuss in order:

1. The definition of grooming - the act of befriending or establishing an emotional connection with a child, in order to lower the child’s inhibitions in preparation for sexual abuse and how the law deals with grooming which is by s.15 of the Sexual Offences Act 2003 (the offence of ‘Meeting a child following sexual grooming’).
2. Detail of the s.15 offence – the offender (who must be aged 18 or over) must either have met or communicated with the child (being a person under 16) on at least two previous occasions; the offender must then either meet the child or travel with the intention of meeting the child; and at that time, the offender has the intention of committing a relevant sexual offence (including sexual activity with a child, causing a child to engage in sexual activity, engaging in sexual activity in the presence of a child or causing a child to watch a sexual act). An explanation as to why the offence is framed this way – to prevent the risk of criminalising innocent communications with children.
3. A discussion of the R v G case (in particular the mens rea element) and the CPS sentencing guidelines. Finally an evaluation of whether the student believes this adequately protects children given the apparently high number of children who are groomed.
4. A discussion of the new s.15A offence of communication with a child ‘for the purpose of obtaining sexual gratification’.
5. The definition of harassment – behaviour intended to disturb or upset and the legal framework found in the Protection from Harassment Act 1997. The distinction between harassment and stalking.
6. Additional protections against digital harassment - Malicious Communications Act and  the Communications Act. A discussion of AMP v Person’s Unknown and an evaluation of whether the student believes this adequately protects individuals given the apparently high number of individuals including children who are harassed.

3. Discuss critically the decision of the Court of Appeal in Attorney General’s Reference (Nos. 85, 86 and 87 of 2007). Were the sentences out of proportion to the harm? In particular are there any grounds for mitigation on principles of freedom of expression?

This question is essentially an analysis of the decision in AGs Ref (Nos. 85, 86 and 87 of 2007)

1. Begin with a clear outline of the facts of the case and the issue before the court. Identify that the key issue was s.59 of the Terrorism Act 2000. This is the offence of inciting terrorism overseas.
2. The crux of the case for many is the sentences involved – they were sentenced to between 12 and 16 years for operating a number of websites and chat forums dedicated to fighting a Jihadist cause, in particular in Iraq. What about Art.10 of the ECHR? Of course Art.10(2) does allow restrictions which are in the interests of national security, territorial integrity or public safety and for the prevention of disorder or crime. Still is this proportionate?
3. Students probably should engage with Gage LJ – “The offenders’ conduct involved the preplanning of a sophisticated and intricate misuse of computers. Its execution was funded by the proceeds of fraud and was carried out with no little technological skills . . . their purpose was to facilitate publication of material on the website and in the chat room forums, exhorting in strong terms others to participate in acts of extreme violence on a very large scale. The material which was published leaves no doubt about what was intended. It was also published in the context of the armed conflict in Iraq involving, as it did, British and American soldiers. Their conduct covered a comparatively short period. However, we infer that but for their arrest their conduct would have covered a much longer period.”
4. Students should note that the use of the Terrorism Act 2000 to prosecute those operating terrorist websites and chat fora has now arguably been superseded by Part I of the Terrorism Act 2006. Students may note that it has less draconian sentencing provisions but that in R v Zafar the court found that both acts could apply depending upon the nature of the information in question. Students should try at least to unpick what that relationship is.