United States of America (R on the Application of) v Bow Street Magistrates Court

The House of Lords allowed the Government of the United States' appeal and quashed the magistrate's discharge of the first two charges. The court held that the Computer Misuse Act 1990, read with s.15 of that Act, made offences under ss.1 and 2 extraditable under the United Kingdom's existing extradition arrangements; separate amendment of the 1976 Order in Council was not required. The proper construction of s.17(2) and (5) of the Computer Misuse Act is that "access" and "authorisation" must be construed with reference to the particular programme or data and the particular kind of access; authority to access other data or a general "level" of access does not licence access to specific data which the person is not authorised to access. The House rejected the broader "levels of access" reading adopted in D.P.P. v. Bignell and in the Divisional Court below, holding that those decisions misread the statutory language and introduced extraneous concepts not found in the Act.

The appellant (the Government of the United States) sought to challenge the magistrate's discharge of two extradition charges against Mr Allison which alleged a conspiracy to secure unauthorised access to American Express computer data with intent to commit forgery and theft. The factual background was that an American Express employee, Joan Ojomo, had accessed customer accounts beyond those assigned to her and supplied confidential information to conspirators. The Bow Street Magistrate committed Allison on the third charge but discharged the first and second. The Government applied by judicial review and appealed to the Divisional Court; the Divisional Court dismissed the Government's challenge but certified a question of law. The Government then appealed to the House of Lords.

The primary issues framed were (i) whether offences under ss.1 and 2 of the Computer Misuse Act 1990 fell within the meaning of "extradition crime" for the United States under the Treaty and the relevant 1976 Order in Council, and (ii) the correct construction of ss.1 and 17 of the Computer Misuse Act 1990, in particular whether a person authorised to access some data or to operate at an authorised "level" nevertheless commits an offence if they intentionally access particular data which they knew they were not authorised to access.

The House of Lords reasoned that s.15 of the 1990 Act brought the specified computer offences and related conspiracies within the domestic definition of offences to which Orders in Council under the Extradition Act 1870/1989 could apply. The court analysed s.17(2) and (5) and concluded these are interpretative provisions: "access" is to be read with the specific means identified in subsection (2) and "unauthorised" in subsection (5) requires lack of entitlement to control the particular kind of access or lack of consent from someone so entitled. The court rejected the approach in Bignell and the Divisional Court which treated authority as a general "level" of access or as control to cause a computer to function; that approach imported concepts not in the statute and so was erroneous. The appeal was allowed and the matter remitted to the magistrate for reconsideration.

Appeal allowed. The House of Lords held that s.15 of the Computer Misuse Act 1990 made the offences in ss.1 and 2 extraditable under the existing Treaty/Order framework and that s.17(2) and (5) must be read to require lack of authority to access the particular programme or data and the particular kind of access; the contrary "level of access" interpretation adopted in Bignell and by the Divisional Court was erroneous. Consequently the magistrate's discharge of the first two charges was quashed and the matter remitted for reconsideration.

Magistrates' committal proceedings at Bow Street: on 11 June 1997 the magistrate committed Mr Allison on the third charge and discharged him on the first and second charges. Habeas corpus and judicial review proceedings and an appeal to the Divisional Court (Kennedy L.J. and Blofeld J.) which gave judgment on 13 May 1998 and is reported at [1999] Q.B. 847 (Divisional Court dismissed the Government's challenges and certified a question). The Government appealed to the House of Lords which allowed the appeal on 5 August 1999.