Criminal Law: a Proposal on Bounced Cheques - Research Paper Example

Name of Student: Student No: Date: Name of Supervisor: Criminal Law: a Proposal on bounced Cheques Introduction The public policy and laws of the United Kingdom are largely influenced by those of the European community and neighbouring countries. There are several documents issued by the CoE which influence the British criminal justice system. In its Cybercrime Convention, it acknowledges the standards that were set by the Council of Europe (CoE) of which it is a signatory, and within this acknowledgement it indicated its intention to implement the provisions of the Convention within the country (Cybercrime Convention of 2001 and the E.U. Council Framework Decision on Attacks Against Information Systems, OJ L 069, 16 March 2005). This influence is attributed to the fact that there is a close historic, geographic and economic relationship between this community of nations. Computer crimes legislation in the United Kingdom is covered in the Computer Misuse Act of 1990 (CMA) (Wasik, 1990). Proposals to amend the CMA and update it with stiffer penalties and more expansive provisions were done (Edwards, 2006). These amendments were presented to the House of Lords under the Police and Justice Bill (Kirk, 2006). There is only one overlapping cyber crime offences provision under the CMA and that is section 2 which criminalises unauthorized access to any program or information contained in a computer in order to facilitate or commit a crime under a certain set of criteria. Under subsection 2: “[O]ffences for which the sentence is fixed by law; or for which a person of twenty-one years of age or over (not previously convicted) may be sentenced to imprisonment for a term of five years…” Cf. section 4 of the Singapore CMA. While the Cybercrime Convention makes provision for both computer and cyber crime under one umbrella, the UK took a dual track approach by enacting the CMA to deal with computer crimes while reserving the conviction of more traditional offences carried out with the aid of computers to be dealt with by criminal legislation. Other specific legislations have also been amended to deal with lacunas coming about due to developments in the electronic age. This has precipitated the need for new amendments pertaining to definition, interpretation and scope of criminal concepts pertaining to non-traditional acts and actors, information, products and instruments. The UK government has carried out some of these amendments to legislation especially as pertaining to fraud and theft, intellectual property infringements and pornography. An offence known as ‘obtaining a money transfer by deception’ was incepted under the Theft Act of 1968 which stipulated that any property ‘belonging to another’ must be acquired for fraud, since it did not pertain to for example, a fraud case that was related to accounts where data that was recorded in an accounts set was changed. This does not constitute acquiring property that belonged to another. This amendment caters for most forms of phishing and other concomitant acts since they most likely involve some form of money transfer. The transfer of other items be they financial or asset in nature, or be of only sentimental value may not be covered since they do not fall under ‘transfer of money’ or ‘property’. The Act also does not cover the use of improperly obtained passwords and identifiable information per se or its use to access data or information. It appears that that is left to other laws including the CMA and laws relating to trade secrets, confidential information, privacy and data protection. A Fraud Bill was also introduced in the UK parliament which had a direct bearing on the act of phishing and other fraudulent acts (Bill 166 Sess. 2005-2006). This bill was introduced in the House of Lords on May 25th 2005 in order to bring the 1968 bill into alignment with contemporary developments in technology. This essay will seek to compare the laws of the UK and the UAE as it pertains to fraudulent transfer of funds. The introduction above has given a background on how the UK deals with cases of fraud committed in an electronic manner. Bouncing cheques in the UK is not yet considered a criminal offence, but in UAE it is punishable by a jail term. In the next section we shall examine how this law is applied in the UAE before we attempt to compare and contrast the different attitudes and subsequent laws these two countries have as it pertains to fraud in transfer of money. The UAE Dishonoured Cheques Dishonoured cheques are becoming a rampant problem in the UAE since the beginning of the financial crisis that was experienced globally in 2008. This has led to a spike in criminal cases and complaints that have come before the UAE courts due to this vice. This has led to the carrying out of surveys across each demographic of the society to find out how prevalent this problem is and how widespread (Arab, 2012). There has been much debate in the country as to whether or not the penalty for issuing dishonoured cheques should be reviewed due to the economic situation although others have stated that they should be exempt from criminal prosecution. The basis for this argument is that these are commercial transactions and should therefore be viewed as such and therefore subject to civil prosecution guidelines in light of the fact that the courts consider a cheque as a commercial paper and therefore the characteristics of the transaction should be looked at in that light. From the perspective of a criminal court, the word security on the cheque does not change it characteristics so long as it satisfies the formal requirements of the law. These requirements are set out in article 596 of Law No. 18 of 1993 (Commercial Transaction Law) which outlines the obligatory particulars that must feature on a cheque, that is, an unconditional obligation to pay a particular amount of money. A security cheque on the other hand makes payment conditional upon fulfilment of certain conditions. This means that the criminal courts attach a different meaning to cheques as compared to civil court. The criminal court does not oblige recovery of the value of the cheque (Arab, 2012). The UAE courts maintain that a cheque is a commercial paper which contains an order set up by the drawer to his bank to pay the beneficiary at a specified date. It is regarded as functioning in the same manner as cash and is therefore an instrument of payment. When a drawer knowingly issues a cheque to a beneficiary without having enough money to cover it, this is an offence. The bad faith of the drawer is established because he knew there were insufficient funds to cover the cheque. This offence is not mitigated even though the beneficiary knew that there were inadequate funds to cover the cheque (Arab 2012). This law is applicable in other jurisdictions, not just the UAE. Cyber Crimes His Highness the President of UAE, Sheikh Khalifa bin Zayed Al Nahyan issued a Federal Legal Decree No. 5, 2012 whose subject is combating cybercrimes. There is included in it, an amendment to the Federal Legal Decree No. 2 for cyber crimes issued in 20006. The new decree has articles in it that deal with legal protection of privacy of online information which includes bank accounts, credit card numbers and other electronic payment details. The decree is designed to shield the privacy of information from any use that would compromise it such as duplication of credit or civil cards. The new decree provides for punishment of any person using any information to extort or threaten other individuals online in order to oblige them to take part in or not take part in certain acts. Indecent Acts The same decree makes it a criminal offence for anyone to create or operate any websites aimed at transmitting, publishing or promoting online pornography, gambling activities or any other acts that are considered indecent. It also provides for punishment for any individual who attempts to or helps other procure the services of a prostitute, seduce others, or induce others to take part in acts of prostitution. It also makes criminal any act of an individual aimed at insulting or accusing others of facts which could result in punishment or contempt by a third party online or through any means governed by information technology (Emirates, 247.com). Issues of Copyright Federal Legal Decree No. 2/2012 also covers the punishment of any individual found using electronic means to violate the privacy of others in an unwarranted way. This violation includes eavesdropping, intercepted recordings or exposing conversations, other communications such as audio and video, taking photographs or creation of electronic photos of others and then disclosing, copying or saving these photographs, publishing news, photos, comments or data and information that is not real. The decree also covers punishment of anyone who is operating or running a website which is dedicated to trafficking of persons or, illegal trade in human organs. It also lays out punishment for anyone found operating or running a website to publish either online or in any other electronic way, publications or ideas or programmes promoting hate, racism or sectarianism in a way that compromises national unity or social peace or damages pubic order and public decency. It also stipulates a penalty for any individual who creates or operates an electronic site in order to publish information that would foster unauthorised arms, ammunition or explosives trade (Emirates 247.com). Acts of Terrorism The same decree covers the punishment of anyone who creates or operates an electronic outlet designed to encourage any terrorist group, unlicensed society, organisation or body or to recruit new members, promote their philosophies or finance their activities, give funds or aid and abet their activities. Other offences include promotion of the manufacture of incendiary devices, explosives or other devices that can be used in acts of terrorism. Running a site that solicits for unauthorised donations is also liable to punishment under the same decree. State Security The same decree also stipulates that any person who creates or runs an electronic site or IT means that is aimed at deriding or damaging the reputation or stature of the state and its institutions including the president, vice president, rulers of the Emirates, the heir crown princes, deputy rulers, the national flag, the national anthem, the emblem of the state or any of its symbols is punishable by imprisonment. Imprisonment is also the punishment for any publication of information, news or caricatures of any kind that would pose a threat to the security of the state, its highest interests or public order. Anyone running an electronic site aimed at engaging in or calling for overthrow of the system of government of the state, or to seize it, seek it or disrupt it or obstruct the constitution or the effective laws of state or ran against the fundamental principles of the government. This punishment is applicable to anyone who encourages, calls for or provokes the aforementioned acts or aids and abets others to participate in these activities (Emirates 24.7.com). Comparison between UAE and UK Criminal Law While the United Kingdom is a sovereign state, it is subject to compliance with EU laws and regulation as well. This differs slightly from the UAE which is composed of a federation. The focus of laws to do with fraud and the electronic world differ markedly. There are several documents issued by the CoE which influence the British criminal justice system. In its Cybercrime Convention, it acknowledges the standards that were set by the Council of Europe (CoE) of which it is a signatory, and within this acknowledgement it indicated its intention to implement the provisions of the Convention within the country. Computer crimes legislation in the United Kingdom is covered in the Computer Misuse Act of 1990. While the Cybercrime Convention makes provision for both computer and cyber crime under one umbrella, the UK took a dual track approach by enacting the CMA to deal with computer crimes while reserving the conviction of more traditional offences carried out with the aid of computers to be dealt with by criminal legislation. Other specific legislations have also been amended to deal with lacunas coming about due to developments in the electronic age. In this way the UK has set out specific legislation whose focus is two pronged. Crimes specific to the electronic age, while amending its older laws to include elements that might aided by electronic activities such as fraud and theft, intellectual property infringements and pornography. The focus of such crimes in the UAE however, is contained in the Federal Legal Decree No. 5, 2012 which is an edict issued by the President, His Highness Sheikh Khalifa bin Zayed Al Nahyan. This decree issued covers several issues such as with legal protection of privacy of online information which includes bank accounts, credit card numbers and other electronic payment details. The decree is designed to shield the privacy of information from any use that would compromise it such as duplication of credit or civil cards. The same decree makes it a criminal offence for anyone to create or operate any websites aimed at transmitting, publishing or promoting online pornography, gambling activities or any other acts that are considered indecent. Federal Legal Decree No. 2/2012 also covers the punishment of any individual found using electronic means to violate the privacy of others in an unwarranted way. The same decree covers the punishment of anyone who creates or operates an electronic outlet designed to encourage any terrorist group, unlicensed society, organisation or body or to recruit new members, promote their philosophies or finance their activities, give funds or aid and abet their activities. The same decree also stipulates that any person who creates or runs an electronic site or IT means that is aimed at deriding or damaging the reputation or stature of the state and its institutions including the president, vice president, rulers of the Emirates, the heir crown prince’s, deputy rulers, the national flag, the national anthem, the emblem of the state or any of its symbols is punishable by imprisonment. There are also other edicts covered by this decree. The focus is not so much on crime as in keeping the citizenry from disrupting the peace of the federation in any way or causing inconvenience to the government rather than protecting the rights of the citizens. The UK laws seek to ensure that citizens’ rights are protected as they make use of this new technology. Conclusion The aim of this report is to come up with a proposal on an aspect of criminal law and compare it to criminal law in the UAE. The aspect of law that we have examined is the treatment of electronic fraud in the UK and the UAE in order to find out how both countries handle this contemporary issue. The conclusion reached is that in the UK, the cybercrime laws are aimed more at ensuring that citizenry can utilise this technology safely and without risk while in the UAE, the laws seek to ensure that the citizenry does not use the laws in a way that is detrimental to the society at large and the government in particular. Works Cited Arab, H. “Dishonoured Cheques in the UAE; A Criminal Law Perspective.” Al Tamimi and Co. 2012 Bill 166 Sess, 2005-2006. Available at the U.K. Parliament web site at: http://www.publications.parliament.uk/pa/cm200506/cmbills/166/06166.i-i.html Cybercrime Convention of 2001 and the E.U. Council Framework Decision on Attacks Against Information Systems (OJ L 069, 16 March 2005), which was proposed on 19 April 2002, adopted on 24 February 2005 and required to be transposed into national law by 16 March 2007 by member states. Edwards, Lilian. “Dawn of the Death of Distributed Denial of Service: How To Kill Zombies.” 24 Cardozo Arts & Ent LJ 23, 36, 2006. Kirk, Jeremy. “Analysts Wary of U.K. Cybercrime Law Revamp: Tougher Penalties, But Can the Law Stay Up to Date?” IDG News Service, 7 June 2006 The United Kingdom CMA. Available at: http://www.opsi.gov.uk/acts/acts1990/Ukpga_19900018_en_1.htm Wasik, Martin. “The Computer Misuse Act.” Crim. L. Rev. 767, 1990 Read More