Proposed Legislation on Computer Related Crime

Before dealing with the raft of legislation that has been introduced by the Government

with regard to computer related crimes, I intend to briefly outline the challenges which

this type of crime presents to the criminal justice system and the inadequacy of existing

laws to facilitate prosecution. I will then make some additional comments and then

conclude.

A fundamental problem is the lack of a provision for computer related crime. This could

change soon with the passage of some Bills that have been placed before Parliament.

Ghanaian law makes provision for crimes perpetuated by physically taking money or

property, or where a document is forged or falsified by a person’s signature. In the world

of financial crime, the criminal rarely ever ‘sees’ the physical money. Money is

transferred via the click of a mouse and the input of keys on a computer terminal. The

main problem that technological advancements have created for the Ghanaian criminal

law is the undermining of fundamental concepts such as physical interference and

appropriation, on which the law is based.

Under the law, in order for a person to interfere or cause damage or receive property, that

person had to be in physical control of, or in physical proximity to that property. Thanks

to advancements in technology, a person can tamper with a document, (that is if a

document can include a ‘document’ on a computer screen) that he or she has not even

seen thereby removing the necessity of physical proximity to that ‘document’.

Another example is the crime of stealing. For a person to be guilty of stealing, there must

be the physical taking and carrying away of something that does not belong to him. How

will there be a successful prosecution of a person who by sitting behind a computer

terminal misappropriates money that does not belong to him. At the time the Code was

enacted, the drafters had in mind chattel that could be physically handled and not items

which on many occasions, the ‘criminal’ has not set his eyes on.

Another problem is the issue of punishment. Peter Grabosky1 notes that apart from being

driven by “time-honoured motivations, the most obvious of which are greed, lust, power,

revenge, adventure, and the desire to taste forbidden fruit…” there is the added incentive

of a sense of adventure and the desire to explore the unknown. In Africa, the motivation

is simple: to make money and tons of it especially at a time when the security agencies

are less capable of dealing with such forms of criminal activity than they are at more

conventional crimes. This suggests that the normal utilitarian and retributive forms of

punishment are insufficient. The thought of spending a period in prison but yet still being

able to get out and enjoy the spoils will not be sufficient to deter potential fraudsters.

What are the chances of reforming a convicted criminal when all he seeks to do once

released is to live off the spoils of his crimes?

The Government has introduced a number of bills which I will now discuss. The bills I

will deal with are the Electronic Transactions Bill, Electronic Transfer of Funds Act Bill,

the Computer Misuse Act Bill and the Computer and Computer-related Crimes Act Bill.

1 Peter Grabosky The Mushrooming of Cyber Crime

In my view, the most significant provision is clause 3 of the Electronic Transactions Bill

which provides that the use of electronic communication shall not, by itself, invalidate a

communication or its contents. This is important because for the first time, the use of

electronic means to engage in transactions, particularly financial transactions will be

(once the law is passed) given legal recognition.

The same bill also recognises the use electronic means of adducing evidence in court.

Clause 9 provides that a requirement to make documents available for inspection shall be

satisfied if a perceivable electronic version is produced. Clause 9 goes further to ensure

that courts and tribunals cannot deny admissibility of documents solely on the grounds

that they have been presented in electronic form.

This will aid the administration of justice in the sense that during a trial, evidence on an

electronic device such as a laptop could be shown to a jury in support of a fact. Clause 9

strengthens the use of such devices because it means that evidence cannot be excluded on

the basis that it was produced in electronic form.

The next bill I want to deal with is the Electronic Transfer of Funds Crimes Act Bill. The

purpose of the bill according to its memorandum is to “regulate the transfer of money

through electronic means, including via computers, online or an electronic terminal, by means of

a card or number or data associated with a card for the purpose of instructing or authorising a

financial institution to debit or credit a cardholder’s account when anything of value is

purchased.” So not only are electronic transactions legally recognised but hopefully, their use will

be regulated by creating offences, as this bill does, for the unlawful use of a bank card or the

unlawful transfer of money. We should remember that in this form of ‘theft’, the criminal does

not physically handle the money but transfers it by imputing commands on a computer terminal.

Clause 11 makes it an offence for a person to obtain anything of value by use of a forged card or

a card or the number and data of such card obtained or retained fraudulently. So if someone

forges my credit cards and uses it to withdraw money from the cash point at Osu, that person can

be prosecuted. The person also commits an offence if he, without my consent gets hold of my

card details and uses it to buy goods.

Clause 12 would make it an offence for a creditor to furnish goods and services on a card or the

number and data of such card he knew was obtained or retained fraudulently or illegally or was

forged, expired or revoked, or represented to the issuer that he has furnished goods and services

when in fact he has not done so. I have been made aware of the fact that Ghanaian commerce has

not reached the stage where I can sit behind a computer and use a card to order goods from

Melcom but if I did and the store knew I’d dishonestly obtained my cards, it would be subject to

prosecution because it knew that I was obtaining good by dishonest means. This should be a

warning to companies and individuals who want to make money through any means.

Clause 19 would make it an offence to use the personal or financial data or credit account

numbers of another to effect an electronic fund transfer. This is the closest that Ghana has come

to an ‘anti-419’ provision because with 419s we are talking about a situation where someone

claiming to have access to money needs my account details to transfer money.

Now the Computer and Computer Related Crimes Act Bill. To put it very simply, this bill

provides punishment for anyone who uses a computer for unlawful means. For example, clause 2

would make it a summary offence for a person knowingly to have unauthorised access to any

programme held in a computer and provides additional penalties for damage resulting from

unauthorised access.

The bill makes it an offence for person who uses access to a computer whether authorised or

unauthorised to facilitate the commission of a crime. The most serious offence I have seen so far

is in clause 8 which makes it an indictable offence (an offence carrying the life or death sentence)

if unauthorised access is to a protected computer which was used for national security, law

enforcement and the provision of public services.

Computer Misuse Act Bill is similar to the Computer Related Crimes Bill in that they both

provide for situations in which a computer has been tampered with.

Before concluding, I wish to make some comments on the bills I’ve just talked about. The bills do

not contain specific punishments or penalties. I presume that this is because the Penalty Points

Bill which will redefine the calculation of penalty points, is before Parliament.

The legislation is a step forward because now companies engage in transactions among

themselves and with the Government via electronic means such as faxes and emails. It is also

positive because someone who steals my bankcards and uses it to withdraw money can be

prosecuted not just for stealing my money but for misusing my card as well. Ghana has not

reached a stage where monetary transfers between its banks are done electronically but the bills

mean that the Government is preparing the country for such a development. I think that is crucial

for investor confidence.

One fault with the bills is that most of the offences are summary offences. It means that offenders

are likely to be granted bail, and punishment might not be so severe. I’d prefer not to comment

further and wait to see the result of the penalty points bill. Terms of imprisonment have been left

blank and so we wait and see how they will be filled in. I keep on harping on about punishment

because if the penalties are minimal, the law will not serve as a deterrent to potential offenders.

We must remember that the bills have not been passed and so they are not law. I stress that it is a

step forward but a lot more needs to be done. The tools for detection of the police must also

be upgraded. The current Government has engaged in a policy of procuring modern

equipment for the police to tackle crime. Unfortunately, this seems to be restricted or

mainly directed towards violent crime. It is important the policemen and women are

educated on financial crime of a computer nature. This will enhance co-operation with

the anti-crime agencies of other countries since cyber crime has no national borders.

Education should extend to institutions of higher learning to ensure that future lawyers

are well versed in this emerging area and so be capable of dealing.