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Mar 05, 2011

Comments

1.

It's tough trying to read about British law as an American without any kind of legal background (in other words, I Am Not A Lawyer), but here's what I came up with from reading the article and researching the different terms:

1. He was charged with the five offenses (American spelling) mentioned and admitted guilt for all five charges.

2. "Offenses taken into consideration" - I'm cadging off the definition from victimsupport.org here. From my reading, these are either lesser crimes than converting stolen property and unauthorized computer access, or crimes for which the prosecutor thinks the case is shaky, but the person charged is willing to admit to them and have them be considered in sentencing, so as not to be at risk of charges on those offenses later.

There's just too much we don't know--what negotiations went on before the admission of guilt, what the 41 offenses taken into consideration are, what penalties he's facing--but it wouldn't surprise me if theft or something close to it is among the 41 offenses taken into consideration. If charging him with theft wouldn't lead to a longer sentence and there's a possibility the prosecution for theft would fail, why bring the charge at all?

I'm probably missing a bunch of salient points here, so I'm looking forward to the opinions of smarter and better-trained minds.

2.

John,
Given my knowledge of the English criminal system I'm risking being the blind leading the blind here, and we need @gamerlaw over here.

So: it's English law not British law, I don't think there is British law as the regions have variations. Offenses into consideration tend to be past stuff that the Judge takes into account post conviction pre-sentencing to determine what the sentence should be. The story notes he was previously convicted for 'hacking'. As far as I'm aware we don't have a system like the US plea bargain one, so I don't think that the type of 'negotiations' you have in mind would occur.

It would be interesting to know why the charge was not theft. It might be that such a charge would run into the definitional issues of real property and it was felt that a UK judge would in fact not step into the magic circle as others have done. I think the decision on charges would have been taken by the Crown Prosecution Service and they take a bunch of things into account when looking at a charge including probability of securing a conviction, the vagaries of property definition would have fallen into that.

3.

Hi John/Ren

Very interesting case and I've got some research ongoing into it at the moment, so we'll have some more information about it in due course. In the meantime, some quick points:

(1) Yes, it's an English law case. John, FYI: the UK is made up of distinct countries (England & Wales, Scotland and Northern Ireland). Their laws are highly similar in some respects but can be quite different in other respects (in particular, English and Scottish criminal law is different). Very very broadly, it's like the US model: the states by and large have similar legal systems, in part due to Federal influence, but they are not exactly the same.

(2) I doubt that the judge was troubled by anything as sophisticated as miagic circle considerations. However, the judge may have thought that theft was maybe too high an offence to level at Mr Mitchell here - which has tinges of a magic circle type argument maybe.

(3) The actual offences prosecuted against Mitchell will have been decided by the prosecutor, the Crown Prosecution Service - who may well have gone for lower offences of 'converting criminal property' in order to secure more straightforward, albeit lesser, convictions. I'm doing some research into the legal difference between that and 'proper' theft - this is obviously the most important bit for our purposes.

(4) The number of offences will relate to the number of times that Mitchell hacked and stole from Zynga.

(5) The charge of "unauthorised access to a computer with intent to commit an offence" is a standard action brought for hacking offences in the UK. So, quite apart from any virtual property considerations, Mitchell would have gone down for the hacking offence anyway.

(6) "Offences taken into consideration" are, I believe, previous offences which Mitchell was guilty of. My recollection is that he had previously been convicted of hacking and stealing from a local government authority.

(7) Plea bargaining doesn't really work in the UK like it does in the UK, at least atm. In particular, we don't use immunity from suit nearly so often. The most you will typically get is a person pleading guilty to certain offences in exchange for more lenient sentencing.

Hope that's helpful. Watch this space for the interesting stuff...

4.

...and gamerlaw reminds me why I usually just lurk and let smart people do the posting. Thanks for all the clarification. The next couple of weeks should be interesting, indeed.

5.

According to the article linked it was the prosecution who decided this case wasn't theft.

"Prosecutor Gareth Evans ... said Zynga was not deprived of goods in the same way as a normal fraud because it could always issue more."

Now in English law theft is defined thus:
"A person shall be guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it."
http://en.wikipedia.org/wiki/Theft_Act_1968

So when the prosecutor says Zynga was not deprived he was essentially saying this wasn't theft.

Conversion is normally a money laundering offence. Presumably it's illegal to convert stolen virtual currency (which you don't exactly own) into real money and this would be what the prosecution argued. One possible implication here is that while it was illegal to hack a computer and illegal to convert stolen poker chips to real money there was no crime committed in the "theft" of virtual currency.

Let me however qualify that by saying that this comes from the prosecutor, not the judge, and so is not precedent.

Let me also explain why I think he said this.

As prosecutor on the day you are trying to win your case. Having decided to prosecute for conversion it was necessary to argue that conversion is the correct charge, not theft. A possible defence could be "I'm not guilty of conversion, it was theft not conversion". So the prosecutor in his preliminary remarks was simply trying to ensure the defence didn't argue this.

However it would be useful to read the transcript because what the judge says IS precedent. So if the prosecutor said this and the judge said "that is correct" you have your precedent.

(Disclaimer: I'm not a lawyer and this is not intended to be legal advice).

6.

I’ve been checking to see if there is any update to the court record but can’t find one yet nor have I got the transcript. However I did track down the definition of ‘criminal property’ – indeed, as noted above, it sits in an area of English law atht is often used in money laundering activities, anyhoo, Proceeds of Crime Act 2002, states at 340(http://www.legislation.gov.uk/ukpga/2002/29/section/340), that

(3)Property is criminal property if—

(a)it constitutes a person’s benefit from criminal conduct or it represents such a benefit (in whole or part and whether directly or indirectly), and

(b)the alleged offender knows or suspects that it constitutes or represents such a benefit.

This is interesting, as it seems to me that virtual currency can confer benefit without having hard currency value e.g. you can get the sword of mighty smightage. Which in turn means that this judgment does not itself seem to be mean that virtual property has a direct link with hard currency value.

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