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Phishing and Pharming Offences - The Computer Misuse Act

23 December 2021
Cyber Crime

Prosecutions for Phishing under the Computer Misuse Act and Proceeds of Crime Act

Phishing usually involves sending a fake email to a person in order to trick them into giving personal information such as bank details or passwords. The purpose is usually to raid the target’s bank account. The email might contain bank logos and a request to login to the account on a bogus copy website the user is directed to. In such cases, the false representation is the sending of the email. If a person is charged then whether that person will be convicted usually rests on whether it can be shown that he or she had knowledge of or involvement in the sending of the email or the setting up or maintenance of the fake website.

It is much more common in these cases for police and the Crown Prosecution Service to consider charges for money laundering under the Proceeds of Crime Act 2002. Money laundering means the transfer of criminal property, usually money. For somebody to be guilty of money laundering, that person must be proven to have known or suspected that the money was the proceeds of crime. Following the money is usually much easier for the authorities than proving who sent emails.

The problem is that money will often have been transferred to somebody who does not know that his or her account is being used to handle stolen money. If such a person is charged with an offence the focus of a good criminal defence lawyer will be to persuade the jury that the client did not know the source of the money and they had no reason to suspect that there was anything untoward going on. Such a case could well result in a not guilty verdict if properly prepared by specialist lawyers.

Prosecutions for Pharming under the Computer Misuse Act and Proceeds of Crime Act

Although the intended effect of Pharming is the same as Phishing, namely the obtaining of personal login details, the method is different and it is made criminal by different law. Rather than sending fake emails in order to get the user to go to a fake website, the aim is to intercept the user’s internet to make him or her believe that he or she has reached a legitimate site when it is in fact a fake site, or illegally accessing the legitimate web domain and putting a fake site in place of the legitimate one in order to harvest the details of unsuspecting users logging on. This requires either interference with the user’s computer or the host website, whether it is a bank or other organisation. This means that Pharming is covered by the Computer Misuse Act 1990. The offence which is most likely to be charged is s. 2 Hacking with intent to commit offences. It is unlikely that a defence team will challenge this on a technical basis. If there is to be a possibility of acquittal it will be on the basis that the client was not responsible for the unauthorised access or did not know or understand what was being done.

As with phishing offences, it is often more likely that the police will only be able to trace people who have handled money after it is stolen. There may not be any evidence against those people of them having hacked computers to carry out the fraud, but they could be investigated or even prosecuted for money laundering offences under the Proceeds of Crime Act. This essentially means handling or transferring property (usually cash) which is the proceeds of crime. To be guilty of money laundering offences, however, the accused person must have known or suspected that the money was criminally obtained. This means the prosecution will have to prove this beyond reasonable doubt. The defence team’s focus could be to persuade the jury that there was a possibility that the person either did not know about his or her account being used or that there was a good reason not to suspect that the money passing through was the proceeds of crime.

The need for specialist lawyers

Fraud offences are a specialist area. Computer crime is a specialist area. This means that the number of lawyers with expertise in both is small. Even in the early stages, failing to get specialist advice can have devastating long term effects. The solicitors, barrister and client need to be working together early, with technical expert witnesses if necessary, to avoid the devastating long term effects which can be caused by underestimating the problem until it is too late.

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