The case of R v Gold and Schifreen [1988] AC 1063 is a landmark decision in English criminal law, primarily because it exposed a significant gap in the law concerning computer hacking before specific legislation was enacted. The case demonstrated the difficulty courts faced when attempting to apply traditional criminal offences, such as forgery, to the new challenges presented by computer technology. This note will outline the facts of the case, the central legal issues considered by the courts, and the ultimate significance of the House of Lords' judgment.
Factual Background
The appellants, Robert Schifreen and Stephen Gold, were journalists who gained unauthorised access to British Telecom's Prestel interactive viewdata service. They used a technique known as 'hacking' to obtain the user identification number and password of a Prestel engineer, which gave them privileged access to the system. Using this information, they were able to view confidential data, alter data, and even send false messages. Their activities were intended to demonstrate insecurities in the Prestel system. They were subsequently charged with offences under the Forgery and Counterfeiting Act 1981 (FCA 1981), specifically relating to the common law offence of forgery which was codified in the Act.
The Legal Question: Hacking as Forgery?
The appellants were convicted at trial, and their appeals to the Court of Appeal were dismissed. The case was then appealed to the House of Lords. The central legal issue was whether the appellants' actions constituted forgery within the meaning of section 1 of the FCA 1981. This section states that a person is guilty of forgery "if he makes a false instrument, with the intention that he or another shall use it to induce somebody to accept it as genuine, and by reason of so accepting it to do or not to do some act to his own or any other person's prejudice."
The prosecution argued that by keying in the customer identification number and password, the appellants had caused the Prestel computer system to create a 'false instrument'. This 'instrument', they claimed, was the condition of the computer's electronic circuits which represented the user's details. This false instrument then 'induced' the computer to grant them access, which was to the prejudice of British Telecom. The core question for the House of Lords was, therefore, whether the process of deceiving a computer could amount to forgery in the same way as deceiving a person (Allen, 2019).
The House of Lords' Decision
The House of Lords unanimously allowed the appeal and quashed the convictions. Lord Brandon of Oakbrook, delivering the leading judgment, concluded that the appellants' actions did not fall within the definition of forgery under the FCA 1981. The reasoning was twofold.
First, the court held that there was no 'instrument' that could be considered false. The information held momentarily in the computer's memory did not fit the statutory definition of an instrument, which was intended to refer to something more tangible and lasting. Lord Brandon stated that the concept of an instrument under the Act was not intended to cover transient electronic signals in a computer system (R v Gold and Schifreen [1988] AC 1063).
Second, and more fundamentally, the court decided that a machine could not be 'induced' to accept something as genuine in the way a human mind can. The statutory language required that the false instrument be used to induce 'somebody' to act. The House of Lords interpreted 'somebody' to mean a person, not a machine. A computer, it was reasoned, simply responds automatically to electronic stimuli; it does not exercise belief or judgement and therefore cannot be deceived or induced in the legally required sense.
The Legacy of Gold
The decision in Gold was legally correct based on the wording of the 1981 Act, but it highlighted that the law was dangerously out of date. It confirmed that there was no specific offence of unauthorised computer access, leaving a clear 'lacuna' or gap in the criminal law (Ormerod and Laird, 2021). The case acted as a direct catalyst for law reform. In response to the judgment and growing public concern about hacking, the Law Commission swiftly produced a report, Computer Misuse (Law Com No 186, 1989), which recommended the creation of new, specific criminal offences. Parliament acted upon these recommendations by passing the Computer Misuse Act 1990, which remains the primary legislation governing computer-related crime in the UK today. Therefore, while Gold and Schifreen were acquitted, their case was instrumental in the development of modern cybercrime law.
References
Allen, M. (2019) Textbook on Criminal Law. 15th edn. Oxford University Press.
Law Commission. (1989) Criminal Law: Computer Misuse. Law Com No 186.
Ormerod, D. and Laird, K. (2021) Smith, Hogan, and Ormerod's Criminal Law. 16th edn. Oxford University Press.
R v Gold and Schifreen [1988] AC 1063.
