AFTER three years in force, with prosecutors yet to convict anyone under the Cybercrimes Act, Deputy Prosecutor in the Office of the Director of Public Prosecutions Loxly Ricketts is concluding that criminal minds have conspired to test the mettle of the system.

“My opinion is that because the Act is untested at present they are not so keen to plead guilty, they want to see how far they can go and see if we can succeed (in getting convictions),” Ricketts told the Joint Select Committee of Parliament reviewing the 2010 Cybercrimes Act last Wednesday.

He said other reasons for the delay also involve administrative matters within the court, particularly as it relates to securing representation for the accused persons and completing the forensic examinations for the various pieces of material.

“Persons have been charged and placed before the court, but if you don’t have a complainant or an interested witness it may not continue. Additionally, we have to give the accused the opportunity to secure representation and with matters of this nature involving large sums of money and very technical evidence, they would have to satisfy their attorneys before they can secure representation,” Ricketts disclosed.

“We have other cases where persons are charged from about 2008, and they still do not have an attorney. There are some offences for which legal aid is available, this offence is not one for which legal aid is available. If they are unable to secure legal representation after a reasonable time then they will have to defend themselves, but the court is giving them all the benefit because given the technical nature of this offence a Court would be slow to press an accused man to defend himself,” he explained.

According to the deputy prosecutor, if the fines and penalties under the Act are increased proportionate to what obtains under the Law Reform (Fraudulent Transactions) (Special Provisions) Act 2013 otherwise called the Lotto Scam Act, the court would see more persons pleading guilty and being more inclined to accepting plea bargains as against now where they simply “take the chance of going through a trial”.

Presently, under the Act, an offence is committed when a person who knowingly obtains, for himself or another person, any unauthorised access to any programme or data held in a computer. That individual is liable upon conviction before a resident magistrate to a Þne not exceeding $2 million or to imprisonment for a term not exceeding two years or to both such Þne and imprisonment; or if any damage is caused as a result of the commission of the offence, a Þne not exceeding three million dollars or to imprisonment for a term not exceeding three years or to both such Þne and imprisonment.

Ricketts, who told the committee that his office was currently doing “the first full-blown trial under the legislation”, said there are others set to start.

“… We don’t have examples at present of convictions or repeat offences thereafter, but what I can say is that the offences usually involve some aspect of economic gain and so the penalties regarding each count seem to have some effect on the minds of the accused persons,” he said.

According to the deputy prosecutor “it’s a matter of having the tools to successfully prosecute. After that we would be better able to approach the issue of plea bargaining,” he told the committee.

Ricketts said the pending amendments under the Evidence Act to allow computer-generated evidence to be admitted in the court was, therefore, welcomed. “At present we have to satisfy the court about the computer being examined from the accused and any other electronic device used to examine that computer would have to go through the same rigourous standards so there are certain aspects which cause a smaller number to be put before the Courts given the amount of details and technical knowledge required to be able to mount a prosecution,” he told the committee.