Mangham, R. v

Sentencing for offences under the Computer Misuse Act 1990 requires a balanced assessment of planning, persistence, actual and potential harm, remediation cost, motive, financial benefit, dissemination of information, intellectual-property value and personal mitigation. Potential harm must be assessed alongside the actual consequences.

A serious crime prevention order is preventive rather than punitive. It requires reasonable grounds for believing that there is a real or significant risk of further serious offending, and its restrictions must be proportionate in the individual case.

The applicant pleaded guilty at the Crown Court at Southwark to three offences of securing unauthorised access to computer material and one offence of unauthorised modification of computer material. He had obtained access to Facebook’s internal systems, copied confidential corporate material and source code, but did not pass the information to anyone or obtain financial gain.

He received eight months’ imprisonment on each count, concurrently, and a five-year serious crime prevention order imposing extensive restrictions on his computer and internet use. He applied for leave to appeal against sentence and challenged the order. The central issues were the proper sentence and whether the preventive order was proportionate.

1. The court granted leave and allowed the appeal. It substituted concurrent sentences of four months’ imprisonment for the concurrent sentences of eight months, and quashed the serious crime prevention order.

2. For computer-misuse offending, sentence depends on a balanced assessment of the aggravating and mitigating features. Relevant aggravating matters include planning, persistence, sophistication, damage to systems and wider interests, remediation costs, motive, financial benefit, dissemination of accessed material and the value of intellectual property. An offender’s psychological profile requires close attention as mitigation.

   The sentencing judge was entitled to find that the conduct was deliberate, persistent and sophisticated, and that the applicant’s motive was to demonstrate that he could defeat Facebook’s security. However, the judge gave excessive weight to potential damage. The confidential material was recovered promptly, was not passed on, and produced no financial gain or direct financial loss beyond investigation and remediation costs. Those matters, together with the applicant’s plea and personal mitigation, justified four months’ imprisonment.

3. A serious crime prevention order requires a qualifying serious offence and reasonable grounds to believe that it will protect the public against a real or significant risk of further serious crime, rather than a bare possibility. The order must also be proportionate, consistently with its preventive purpose and Article 8.

   The judge was entitled to assess a future risk despite the probation officer’s lower assessment. Nevertheless, the extensive five-year restrictions had not been shown to be proportionate in all the applicant’s circumstances. The order could not stand.

• Court of Appeal (Criminal Division)—granted leave, allowed the appeal, substituted concurrent four-month sentences and quashed the serious crime prevention order: [2012] EWCA Crim 973.
• Crown Court at Southwark—on 17 February 2012 imposed concurrent sentences of eight months’ imprisonment and a five-year serious crime prevention order following guilty pleas.