On Monday, my street (and everywhere else) resembled an Olympic slalom. So deep was the snow, in fact, that I couldn’t even tell which car was mine. Looking down from the warmth of my flat, I could see people slipping and cars sliding. Not the most inviting scene for a man on crutches… even if it was beginning to look like Christmas!
I had anticipated this moment since discovering I’d got pupillage. I knew that sooner or later, I’d have to brave the ice and snow in order to deliver justice. Thankfully, though, that day would not be today. I spoke to my line manager and was given permission to work from home — or “WFH” as it’s called! That’s one of the pluses of working in-house for the CPS: case files and evidence can be accessed remotely, allowing (e.g.) Pre-Charge Advice to be researched, written and submitted from home when necessary.
So, my day was spent in pajamas, marshalling mounds of cyber-research gathered from the law library last week.
Tuesday’s weather was no kinder, so I wrote my cyber-opinion at home. It came together nicely; striking a balance between academic and practical.
I found that the word “computer” is defined by English common law as any device used for storing, processing and retrieving information — DPP v McKeown  1 WLR 295 at 302.
But can texting on an iPhone be classed as “computer” activity (as we must prove)? In my opinion, yes!
Text messages, once sent, are stored in the user’s digital “outbox.” These can be retrieved from the device on demand. The same goes for incoming text messages, except these are stored in the user’s digital “inbox.”
When composing a text message to send, the user carries out a series of keystrokes to select required letters, insert spaces between words, etc. If the user activates “predictive text” then he may choose words from a list of possibilities anticipated by the device in real time. In short, when used to compose texts, the device functions as a word processor.
Texting on an iPhone thus involves storing, processing and retrieving information; so, the definition of “computer” in McKeown is satisfied.
And, in my opinion, the same goes for calls!
Phone calls, both incoming and outgoing, are recorded in the user’s digital call log. The log stores information such as telephone number, date of call, time of call, and call duration (if call was answered). This information can be retrieved from the device on demand.
Phone numbers can be stored in, and retrieved from, the user’s digital “phone book.”
When speaking on the phone, it processes audio input — converting the user’s voice into binary code for outgoing transmission. At the same time, the phone processes incoming code — restoring this to audio output.
It is possible to dial numbers on an iPhone by the Voice Control feature. This works by recognising the user’s voice and processing his instructions.
Speaking and listening on an iPhone thus involves storing, processing and retrieving information; so, the definition of “computer” in McKeown is satisfied.
I concluded by saying: The Defendant plans to argue (perhaps conveniently) that an iPhone is a phone which may be used like a computer. I take the opposite view. Rather, an iPhone is an advanced computer with the capacity to act as a phone — as well as a camera, video player, portable library, etc. It must follow that any and all communications data stored within an iPhone is computer data. Deleting such data means deleting “computer history” — as the Defendant was expressly prohibited from doing.
Other law I relied upon included the Convention on Cybercrime, and a case from America which was largely on point with our own.
In U.S. v Kramer (2011) 631 F.3d 900, the Defendant pleaded guilty to transporting a minor with intent to engage in criminal sexual activity. He admitted having used his mobile phone to make calls and send texts to the victim.
The prosecution sought an enhanced sentence based upon the presence of a statutory aggravating factor — namely, using a computer to persuade, induce, entice, coerce or facilitate. The Missouri trial court imposed an additional 28 months’ imprisonment. The Defendant appealed to the Eighth Circuit Court of Appeals. His sentence was affirmed for the following reasons:
- The statutory definition of “computer” was broad enough to encompass any device which makes use of an electronic data processor — examples of which are “legion” and included the Appellant’s phone.
- Use of an electronic data processor was evidenced by certain features of the phone; notably, 5MB memory capacity, user-customisable menus, and a graphics accelerator.
- The phone’s user manual, plus a printout from manufacturer’s website, were sufficient to prove that Appellant’s phone was a computer. It was not necessary to call an expert witness (as Appellant contended it was).
- There was nothing in the statutory definition of “computer” to exclude devices which lack a connection to the internet (as did Appellant’s phone).
English judges are not bound by American judgments, but may regard them as “persuasive” on matters where English case law is silent.
On Wednesday, I met with my supervisor to discuss this opinion. I learned that in criminal law, “it’s called an advice” — even though you’re giving an opinion! Noted for the future.
Ultimately, my supervisor was impressed. He said that I’d persuaded him of the merits, and that he is happy for me to draft the prosecution’s skeleton argument. The oral hearing is fixed for 31st January 2018, with skeletons required a week in advance. A lot will depend on how the Defence frames its submissions. But having researched and written this advice, I feel ready to respond to anything.
Thursday and Friday were spent catching up on e-Learning. Notably, I completed the following useful modules:
- The Victims’ Code.
The former required me to define what “being ethical” means to me. After giving it some thought, I answered:
“Doing the right thing… even when no one else is watching.”
I was allowed to leave early to see my two-year-old’s first nativity play. She starred as a cute little camel! Not bad for a first performance. We treated her to a nice slice of pizza after.
And with that, my fifth week of pupillage was done.
[Published with the permission of my line manager]