United Kingdom In this modern borderless world,each nation-state of the world has their own authority to develop laws whichbind on things and all individual within its geographical entity. So, each nations have different law to coverthe same matter, as a result, conflict of laws is unavoidable. As far as weknow, the current available laws that clearly prevent jurisdictional issues inrelation to cybercrimes from occurring in Malaysia are s 4 of Communications andMultimedia Act 1998 and s 9 ofComputer Crimes Act 1997. Similarly,in United Kingdom there are certain laws which protect the country fromcyber-attacks. The legislations in relation to cybercrimes developed by the UKgovernment are the Computer Misuse Act1990, Data Protection Act 1998 and Communications Act 2003.1Basically, the Computer Misuse Act 1990is the most relevant law that establishes jurisdiction in UK for violation ofcybercrime. There are several crimes regarding to computer misuse are as statedunder s 1 to s 32namely, unauthorized access to computer material, unauthorized access withintent to commit or facilitate commission of further offence and unauthorizedmodification of computer material. Besidesthat, the principle of territoriality has also been developed in UK.
Sometimes,most of the cybercriminals often stay in their house, office, cafe or wherever theychooses, with a desktop, laptop, or any computer devices which connects to theInternet and carry out their illegal activities that would be affectedthousands of kilometers away from their origin. For this kind of instances, theoffences take place outside of the UK territories and UK would still havejurisdiction to try the perpetrator of the crime under the Computer Misuse Act of 1990 (CMA). Section 4 and s 53states the territorial scope of offences and the significant links withdomestic jurisdiction respectively. Both sections can be read together where itprovides that cybercrime need not necessary be committed within UK as long asthe crime would affect or bring damage to UK in relation to any aspects withinthe cyber world. The UKis amending s 5 of the CMA 1990 toalso include nationality jurisdiction in relation to access offences so thatthe expansion of jurisdictional can help to counter the jurisdictional issue inrelation to cybercrime. Before amending s.
5 of CMA 1990, there is no nationality jurisdiction included in the sectionso that it does not affect anyone who is not a British. Thus, after theamendment was made, anyone in the world regardless the nationality of theperson would be charge under this section. In simple words, the above twosections provide that itis not necessary for the cybercrime to be committed within the territory ofUnited Kingdom, but as long as the offence is significantly linked to theUnited Kingdom then the cybercriminal would be charge under CMA 1990.4Thus, even the act committed is not a crime in the place of commission but itis a crime in United Kingdom and it is established that the offence issignificantly linked to it, then the CMA may be applied for purpose ofprosecution.
For example, if Ali has committed a cybercrime outside theterritory of UK, he may not be charge under CMA. However, he would be liablefor the offence under CMA if he commits the offence which is significantlylinked to the UK such as hacking the computer system in UK while he was outsidethe territory of UK. The abovesection under the CMA 1990 of UK aresimilar with the s 9 of the ComputerCrimes Act 1997 in Malaysia. Both countries use the same law to deal withthe jurisdictional issue as Malaysia used the common law as the precedent todevelop its own law in its country.5S.9 of CCA 1997 states that if anoffence was committed outside Malaysia, he will be handled as though theoffence was committed in Malaysia regardless nationality of the person. For instance, Ali who is a Malaysia wascharged for committing cybercrime but he has alleged that he was committed theoffence outside Malaysia. By applying S.
9of CCA 1997 and S.4 and S.5 of CMA 1990in Ali’s situation, he would still be liable for the crime if the act that hehas been committed has affected and caused damage to Malaysia. He has satisfied the element of the act which hasconstituted a significant link to Malaysia. The UK is subjected to the Councilof European Cybercrime Convention. InEuropean Cybercrime Convention, Article 22 states about thejurisdiction. In paragraph (a), it statesthat if a crime is committed within its territory, it is necessary for theparties to adopt the legislation in order to punish the commission of crimewhile paragraph (d) states that thepeople of a particular state cannot escape from criminal liability of their ownstate even though they are committing the crime outside its territory.
They arestill obliged to comply with their domestic law even when they are beyond theterritory of their own state. For example, a man who comes fromEngland goes to othercountry which does not have any legislation against unauthorized access tocomputer system, in the meantime, within the territory of the country uses acomputer to hack through a computer of a person in the United Kingdom is stillwithin the jurisdiction of his own state. As a result, the man would be liablefor the jurisdiction under UK. On the other hand, Malaysia is not subjected toEuropean Cybercrime Convention. However, a man who commits the cybercrimeoutside Malaysia is still obliged to comply with their domestic law even whenthey are beyond the territory of Malaysia provided that there is significantlink between the crime and Malaysia. The person still can be charged under section 9 of CCA 1997. From thediscussion we can prove that UK and Malaysia has adopted same principle whendealing with the jurisdictional issue.
Regardingto the flaw of s 4 of Communications and Multimedia Act 1998and s 9 of Computer Crimes Act 1997 inMalaysia as discussed in above section, the provisions under the Computer Misuse Act 1990 in UK might facethe same issue. So, in 2003, UK has signed a new extradition treaty and Extradition Act 2003 is established toprevent such issue from happening. Extradition basically means that the processof returning someone to its natural country who is accused of a crime by adifferent legal authority for trial or punishment. For example, if Ali isalleged to have committed a cybercrime in one jurisdiction and escapes from hisown country to another country, the country where Ali has been escaped to couldreturn Ali who is the cybercriminal to the requesting country in order to facethe trial in his own country. According to Part2 of the Extradition Act 2003, it prevents cybercriminals from fleeing to adifferent country and at the same time allows the criminal to be tried in bothcountries, hence, solving the issue of having to decide which country law willbe applicable to him.
Whereas, in s 4 of CMA 1998 and s 9 of CCA 1997 of Malaysia, it allowsthe Act to be covered vastly within and across Malaysia however as discussedearlier, the issue arises when the offender commits the offence in othercountries and if he were to be tried in Malaysia the laws governing suchoffence in the said country would be rendered pointless. Unlike in the UK, theyhave signed the extradition treaty and enacted the Extradition Act 2003 thus, allowing them to tried the offender inUK at the same time allowing the offender natural country to bring him backupon request to tried him as well. Thus, solving the issue of neglecting ones’country jurisdiction. With the useof dual criminality clause in Part 2 ofExtradition Act 2003, there is no longer any need to amend or supplementthe new treaty as new offences become punishable under the laws of both states.
The new treaty therefore looks forward into the future by including any otheroffences that may be punishable under the laws of both states by imprisonmentof one year or more.6Dual criminality principle must be fulfilled which means that before a criminalcan be validly extradited and the alleged offence must be a crime punishable atthe jurisdiction seeking extradition.7 In the case of Gary McKinnon,8a systems administrator in England used his own desktop in his house and hackedinto United States military and NASA. After he gained the unauthorized accessto the computers, he deleted data and files from these computers. In theconsequence, due to the act which caused by the system administrator, theUnited States became vulnerable to intruders for several hours.
Furthermore,the defendant also copied the data and files of US military and NASA into hisown computers. This case later wasjudged by the court based on the new Extradition Treaty which was signedbetween the US and the UK. The crime was covered under the Extradition Treatybetween the US and the UK. The US advisethe UK that it will be requesting for the extradition of Gary McKinnon and chargeswere filed against Gary McKinnon which the judges subsequently issued a warrantof arrest against him.
9The Extradition Act 2003, aid the UKin this case by charging the offender in both countries namely UK and US, hencepreventing any jurisdictional issues from occurring. So, Malaysia has notdeveloped any legislation similar to the ExtraditionAct 2003. If the criminal is only charge under one jurisdiction, sometimes,the punishment is too lenient to impose on the criminal as compared to anothernation. Inconclusion, in order to prevent the conflict of laws between two countries, Malaysiacan follow UK to develop a legislation such as the Extradition Act 2003 to solve the issue so that wherever thecybercriminal commits his act in different country or territory, the laws inthe particular nations would not cause a conflict of law between each other andthe cybercriminal could be charged by both country based on their ownjurisdictions. Bibliography 1. Cybercrime– Legal Guidance (n.d).
uk/legal-guidance/cybercrime-legal-guidance2. ComputerMisuse Act 19903. ComputerCrimes Act 19974. ExtradtionAct 20035.
DR.ADEL AZZAM SAQF AL HAIT. (2014). Jurisdiction in Cybercrimes: A Comparative Study, 22. Retrievedfrom http://citeseerx.
(2016). UK Cyber Crime Law. Retrieved fromhttps://www.gracefulsecurity.com/uk-cyber-crime-law/7. Michea?lAaron O’ Flynn. (2014).
Harmonisation and Cybercrime Jurisdiction: UneasyBedfellows? An analysis of the jurisdictional trajectories of the Council ofEurope’s Cybercrime Convention. Retrieved fromhttps://qmro.qmul.ac.
(2012). Issue of Jurisdiction in Combating Cyber Crimes: Issues andChallenges Pornography and Indian Jurisdiction. Retrived fromhttp://www.legalservicesindia.com/article/article/issue-of-jurisdiction-in-combating-cyber-crimes-issues-and-challenges-pornography-and-indian-jurisdiction-1386-1.
html9. Ajayi,E. F. G. (2016). Challenges to enforcement of cyber-crimes laws and policy.
Retrieved fromhttp://www.academicjournals.org/journal/JIIS/article-full-text-pdf/930ADF9602101 Cybercrime – LegalGuidance (n.d). Retrieved fromhttps://www.cps.
gov.uk/legal-guidance/cybercrime-legal-guidance2 Computer MisuseAct 19903 Ibid4 DR. ADEL AZZAMSAQF AL HAIT. (2014). Jurisdiction inCybercrimes: A Comparative Study, 22. Retrieved from http://citeseerx.ist.psu.
1004.5455&rep=rep1&type=pdf5HollyGraceful.(2016). UK Cyber Crime Law. Retrieved from https://www.gracefulsecurity.com/uk-cyber-crime-law/6 Michea?lAaron O’ Flynn. (2014).
Harmonisation and Cybercrime Jurisdiction: UneasyBedfellows? An analysis of the jurisdictional trajectories of the Council ofEurope’s Cybercrime Convention. Retrieved fromhttps://qmro.qmul.ac.uk/xmlui/bitstream/handle/123456789/9548/O%27Flynn_Michael_PhD_Final_081015.
pdf?sequence=1 7 M. Mohit. (2012). Issue of Jurisdiction in CombatingCyber Crimes: Issues and Challenges Pornography and Indian Jurisdiction.Retrived fromhttp://www.
legalservicesindia.com/article/article/issue-of-jurisdiction-in-combating-cyber-crimes-issues-and-challenges-pornography-and-indian-jurisdiction-1386-1.html8Carroll. R. (2012). Gary McKinnon hacking prosecution called ‘ridiculous’ by USdefence expert. Retrieved from https://www.
theguardian.com/world/2012/jul/10/gary-mckinnon-hacking-prosecution-us 9 Ajayi, E. F. G.(2016).
Challenges to enforcement of cyber-crimes laws and policy. Retrievedfrom http://www.academicjournals.org/journal/JIIS/article-full-text-pdf/930ADF960210