back to article Phone thieves to face harsher penalties for data theft

New laws which value the “emotional harm” of a crime could be brought to bear in mobile theft. The Sentencing Council for England and Wales has issued new guidelines for judges ruling in theft cases and in the section on “general theft”, which includes : Theft from the person Theft in a dwelling Theft in breach of trust …

  1. JimRoyal

    And this covers......?

    Any chance this covers GCHQ and the NSA?

    1. hatti

      Re: And this covers......?

      We can neither confirm, nor deny this covers GCHQ and the NSA

    2. Bc1609

      Re: And this covers......?

      If Paranoid Smurf has told us anything it's that if the TLAs are in your phone, you probably won't notice. Even if you did, their being there is legal (or will have been legal by the time you get it to a judge).

      However, that does open up a rather amusing legal line of enquiry. From the Theft Act 1968:

      A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and “thief” and “steal” shall be construed accordingly.

      The point is that deprivation is the key to theft. If malware is using system resources (RAM/CPU, etc.), then you cannot use them - hence, an argument could be made that malware is theft. A quick skim through LexisLibrary suggests that no-one has ever pursued this argument before - probably because of the existence of legislation that more specifically addresses such offences. But I put it to you, people who pretend to be lawyers on the internet - could that charge stick?

      1. Anonymous Coward
        Anonymous Coward

        @Bc1609 - Re: And this covers......?

        I think the charge as you have stated it would not stick on the grounds that, as long as the CPU and RAM were not 100% committed at the time, the malware was only transiently using spare capacity, hence the owner was deprived of neither.

        However, it could be argued that the malware would have made the processor do more work and hence it would have consumed battery power. Therefore the battery would have expired earlier. The malware would therefore have deprived the owner of his/her phone completely for a length of time equal to how much earlier it had to be put aside for recharging than would otherwise have been the case.

        I'm not sure if 'theft for a limited time' is a concept, but you could give it a go. Alternatively, the cost of recharging the consumed portion of the battery could be directly considered theft. A minor amount, but still - it is theft.

        1. Bc1609

          Re: @Bc1609 - And this covers......?

          Interesting points - I don't know whether spare capacity is relevant. To use the tried-and-trusted car analogy, if you pinch my car from airport parking while I'm on holiday, but put it back before I return, is that theft? Certainly I should be able to make a claim on wear-and-tear/fuel, etc. (as you point out), but that's not the same thing. If I have a spare moment I think I'll go and check Lexis - I'm sure someone must have covered this before.

          1. Anonymous John

            Re: @Bc1609 - And this covers......?

            Taking without owner's consent. An offence created as it could not be proved that "joyriders" intended to permanently deprive the owner of the car.

            1. Bc1609

              Re: @Bc1609 - And this covers......?

              Bingo! For those interested, the relevant section of the Theft Act can be found here:


              However, it's pretty clear that it only applies to "conveyances", so we couldn't get malware under TWOC. Oh well, worth a try.

  2. Aitor 1 Silver badge

    And the link is...?

    Here, fixed it:

    And great, if you nick a 3000 pound bike with powertools, you get a community order.

    I guess I should stop working and just steal stuff.

    1. davemcwish

      Re: And the link is...?

      " if you nick a 3000 pound bike with powertools, you get a community order." non-legalese reading of the s25 guideline for your 'alleged' offence would be Medium Culpability / Greater harm with starting point of 18 weeks' custody. I would add the caveat that £3000 for a bike has a different 'value' dependent on the owner's need.

      1. Graham Marsden
        Thumb Down

        @davemcwish - Re: And the link is...?

        > £3000 for a bike has a different 'value' dependent on the owner's need.

        You're clearly not a biker...

  3. Your alien overlord - fear me

    And under 18 year olds get away scott free? Whatever happened to the short,sharp shock attitude?

    1. Graham Marsden
      Thumb Down

      Whatever happened to the short,sharp shock attitude?

      It was proven to be a failure, good for headlines in the right-wing press, useless for actually preventing crime or reoffending.

      "Mr Whitelaw introduced the short, sharp, shock - a military-style training and punishment programme - at four centres. Four years later, when it was found the policy affected neither the rate of crime nor re-conviction - and magistrates preferred sentences involving supervision coupled with treatment - it was consigned to the penal policy dustbin.

      "'It was a catastrophic failure,' Stephen Shaw, director of the Prison Reform Trust, said. 'It produced fitter criminals who could outrun the police.' The policy went the same way as borstals and detention centres,"


  4. Mike Shepherd

    "Emotional harm"

    I recall one old gentlemen saying how returning to school after the summer break meant discovering which of your friends had died of polio. Perhaps what we need is a generation who don't go faint with the vapours when they lose their online cat photos.

    1. Dr_N Silver badge

      Re: "Emotional harm"

      After the flooding and deaths in the South of France some school kids were heard to be bleating about the network outages and their "lack of internet". FFS.

  5. Fred Dibnah

    Irreplaceable photographs

    So if a phone gets nicked, it's worthy of a harsher sentence because the owner hasn't backed up their stuff? Huh? Anyway, copies of messages are held by the telco and/or mail servers and/or websites, so they can be recovered, but how can an accused person disprove that the only copy of a photo was on the phone? IANAL but even I can see gaping holes in this.

    1. Jason Bloomberg

      Re: Irreplaceable photographs

      That got me thinking; unless an item is recovered or its theft admitted to, how does anyone prove anything has been stolen beyond reasonable doubt?

      Evidence of having had something does not mean lack of it now proves it was stolen.

    2. Paul Crawford Silver badge

      Re: Irreplaceable photographs

      The only way this law makes sense is if the criminal then goes on to use/abuse the phone's data.

      If your phone is nicked that’s not good, but if there is no violence/injury its only a phone. If you have irreplaceable data on the phone that is valuable then you should not deserve any more compensation (or the scrote any more punishment). After all it could easily fail or be wiped by some botched upgrade and you would get bugger-all back from the EULA even if it were generally dismissed by a court.

  6. King Jack

    More usless laws

    Lawmakers have to be seen to do something, so we get crap like this.

  7. This post has been deleted by its author

  8. MrDamage

    data integrity

    Has always been the responsibility of the data owner, as has been proven numerous times anyone has tried to sue a computer shop for "losing" their data due to a format being the only solution to a windows corruption or infestation.

    I don't see how someone losing all of the pics of other people's cats, or lunches, whether through theft, damage, or loss of the device in question, so have any impact on the sentencing.

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