R v Gold & Schifreen

Factual Background
Robert Schifreen and Stephen Gold, using conventional home computers and modems in late 1984 and early 1985, gained unauthorized access to British Telecom's Prestel interactive viewdata service. While at a trade show, Schifreen, by doing what later became known as shoulder surfing, had observed the password of a Prestel engineer: the username was 22222222 and the password was 1234. This later gave rise to subsequent accusations that BT had not taken security seriously. Armed with this information, the pair explored the system, even gaining access to the personal message box of Prince Philip, Duke of Edinburgh.

Unknown to Schifreen and Gold, the Prestel computer network operated on a distributed basis and was intended to act as a hot standby in the event of the UK going to war &mdash; in the event that the primary UK military computers were down, the Prestel network could be used to control and launch the UK's nuclear missiles.

Following discussions with GCHQ and MI6, it was decided to investigate Schifreen and Gold's activities, notwithstanding that, as freelancers for Micronet, a joint venture between BT and a major publishing house, the pair had informed their superiors of their discovery.

Prestel installed monitors on both of the pair's modem connections and, acting on the information obtained, decided it was in the best interests of national security to arrest them.

Trial Court Proceedings
After some months of deliberation, it was decided to charge the pair under section 1 of the Forgery and Counterfeiting Act 1981, with defrauding BT by manufacturing a "false instrument," namely the internal condition of BT's equipment after it had processed Gold's eavesdropped password. Tried at Southwark Crown Court, they were convicted on specimen charges (five against Schifreen, four against Gold) and fined, respectively, £750 and £600.

Appellate Court Proceedings
Although the fines imposed were modest, they elected to appeal to the Criminal Division of the Court of Appeal. Their counsel cited the lack of evidence showing the two had attempted to obtain material gain from their exploits, and claimed the Forgery and Counterfeiting Act had been misapplied to their conduct.

They were acquitted by the Lord Justice Lane, but the prosecution appealed to the House of Lords.

House of Lords Proceedings
In 1988, the Lords upheld the acquittal. Lord David Brennan said:


 * We have accordingly come to the conclusion that the language of the Act was not intended to apply to the situation which was shown to exist in this case. The submissions at the close of the prosecution case should have succeeded. It is a conclusion which we reach without regret. The Procrustean attempt to force these facts into the language of an Act not designed to fit them produced grave difficulties for both judge and jury which we would not wish to see repeated. The appellants' conduct amounted in essence, as already stated, to dishonestly gaining access to the relevant Prestel data bank by a trick. That is not a criminal offence. If it is thought desirable to make it so, that is a matter for the legislature rather than the courts.