back to article Computer Misuse Act charge against British judge thrown out

A Crown court judge accused of breaking the UK's Computer Misuse Act after browsing digital documents in a case where her daughter was a witness has been discharged from court. Her Honour Judge Karen Jane Holt, who sits as a judge under her maiden name but was charged under her married name of Karen Smith, had the case against …

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She phoned Guildford Crown Court, where the case was due to be heard, “to ensure that the trial judge was not someone who knew her or her daughter,” according to Mr Justice Davis’ written ruling. Judges are subject to strict rules that prohibit them from judging cases where they have a personal interest.

Now the whole thing makes sense. Having a case abandoned midway through a hearing because of something like that is not good.

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Anonymous Coward

Now the whole thing makes sense. Having a case abandoned midway through a hearing because of something like that is not good.

She could easily inform the court manager of a potential conflict of interest, by phone or via her local court manager, as soon as her daughter received her witness summons. There was no need to view any case documents.

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Shouldn't it have been the responsability of the Guildford Crown Court to ensure that the preciding judge did not know the girls mother and why did she have to read the documents beforehand as obviously she already knew that her daughter was a witness ?

It all seems a bit back to front...

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@Khaptain - "Shouldn't it have been the responsability of the Guildford Crown Court to ensure that the preciding judge did not know the girls mother"

How could they know? The clerks will just see "name of address" on the witness statement, not a list of everyone the witness knows. Even if the witness list was shown to the presiding judge, they might not connect the daughter of Judge Holt to the different name in front of them and then only realise when the witness took the stand.

Maybe she was accessing the documents to find the name of the presiding judge, or the contact number for the appropriate clerk.

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Anonymous Coward

Based on the additional information this should never have been brought in front of a court however I disagree with the way it was dismissed. I'm surprised a judge has the ability to do that.

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If it was anybody else

If it was anybody else it the lack of training or anything else would have got the "but you accessed something that you shouldn't have" response.

Funny enough the majority of us seem to be required to be capable of speaking on the phone and working through documents at the same time

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Facepalm

Re: If it was anybody else

And judges are supposed to know the law

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Wonder how much that lack of security cost the tax payer??

if shes not supposed to have access, why did she have access??

The problem is not the judge and her wandering eyes, rather the lack of security around the file storage.

wouldn't be surprised if it transpires there is one login and password that all the judges share...

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Anonymous Coward

> Mr Justice Davis noted that a letter was sent to all full-time judges in April 2017 warning them that browsing through DCS “out of curiosity or for personal reasons” would trigger a Judicial Conduct Investigations Office probe or even a police investigation.

Anyone think this will happen? I also have a bridge for sale.

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Boffin

It’s missing the word “caught”

In Jersey anything’s legal as long as you don’t get caught”

Tweeter and the Monkey Man, by Traveling Wilburys

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That letter is defining a new, clear, policy that prohibits browsing on grounds of curiosity.

In the absence of a clear policy on this, it's not a prohibited. Therefore, the access was authorised, and there is no case to answer for, so the judge threw the case out.

Policy 101: In the absence of clear written policy, you have no policy and can not discipline for breach of non-existent policy.

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Black and white or various shades of grey?

I always thought the Computer Misuse Act was pretty clear - if you had no legal reason to access something on a computer, it would be illegal for you to do so. It's like a speed limit - either you stick at or below the limit and within the law, or you break the limit and the law.

How long until we see prosecutions for speeding thrown out because the driver was only above the limit for 9 minutes?

Maybe the judge who made this somewhat misguided decision should reconsider the precedent he is setting?

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Headmaster

Re: Black and white or various shades of grey?

Reading the Judge’s response, it would be difficult to prove the defendant accessed the records illegally, There appears to have been no guidance or policy on the records judges could access, and there were no access controls in place to prevent unauthorised access. A good lawyer, (and she should know a few) has clearly argued that case.

Not saying it’s right, just stating the facts, and as said in the article, the chances of a Jury convicting were practically zero.

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Anonymous Coward

Re: Black and white or various shades of grey?

Rather fatuous argument to be honest.

The question in this case appears to be whether the access was authorised or not. To stick with your speeding analogy, let's say the speed limit on a road was changed from 40 to 30, but the signs weren't updated and still read 40? Would you be breaking the law going at 40?

Here it seems that, until the letter sent a year after the case, the entire system was operating under an assumed access authority, with what was authorised and what wasn't authorised being unwritten and unclear. In this case, she had a reason to access the information (to confirm or otherwise a conflict of interest), and in the absence of written rules, or established ACLs, it is impossible to say whether that reason was legitimate or not. As such, you can't say whether the Computer Misuse Act was breached or not.

Given that a jury trial is extremely expensive, judges are expected to throw out cases where the CPS haven't done their due diligence and prosecuted with a reasonable expectation of a conviction.

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Re: Black and white or various shades of grey?

The shades of grey has always been the level of access to the computer in question.

In this case, she was a judge, so she did have access. She shouldn't have accessed that particular file according to various unspecified rules of conduct, but she had never been trained/told otherwise.

I think that considering her motives to ensure an unbiased trial, this was a just and fair verdict.

Granted, there are the tones of "we wouldn't have got off so easy" but that's a different subject.

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Re: Black and white or various shades of grey?

That is a really dangerous definition since it can be overly broad. Now imagine you view some website via deep link from google but it was unintentionally posted and you were not authorized to access that data. According to your definition, you should be charged. Your definition would be similar to charging someone with burglary because they read the wrong file in a cabinet they had keys to.

A better way to think of it would be if she had to guess a password or borrow someone else' access to get that info. She didn't do that, she simply used the login she used as a part of her job to browse data the system saw no problem in giving her.

If she should not have accessed the data the system was fine with giving her then that is an administrative problem between her and her employer, or a breach of some other regulation since she never misused the computer.

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Re: Black and white or various shades of grey?

"Maybe the judge who made this somewhat misguided decision should reconsider the precedent he is setting?"

The case was heard in the Crown Court which doesn't create a binding precedent.

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Re: Black and white or various shades of grey?

You may wish to correct this statement to

I think that considering her stated reason was to ensure an unbiased trial, this was a just and fair verdict.

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So in summary

She was checking the court documents because her daughter was a witness in a trial and she wanted to make sure that the judge hearing that trial wasn't someone she knew, in order to prevent any possible mistrial.

As a result, her access to the file was flagged up as possible inappropriate access (which is fair enough), and the person reviewing this, rather than taking the common-sense approach, decided to refer it to the CPS, and a charging decision was given.

I'm all for proper oversight of all arms of government (especially including the executive, as well as the judiciary), but to me, it seems this investigation should have been written up, and ended long before it got referred to the CPS.

Obligatory: IANAL

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Flame

Re: So in summary

That's one interpretation. The other realistic scenario is that she accessed the files out of curiosity, even though she knows she is not allowed, even though she knows she's breaking the law. Only after being caught did she provide that argument to provide an air of legitimise. The simple fact is if she wanted to ensure no mistrial due to prior or personal knowledge. A 5 minute phone call to the Court house administrative staff would have sufficient. They probably have specific processes to follow in situations like these. Instead she trawled through case files and court documents with impunity

If any other official had done a similar thing, or accessed family or friends records even out of curiosity, particularly a Police officer would the courts have returned the same results? Or would there have been a push for a trail and imprisonment recommended to send a message to others? If so , then why does her being a judge become the exception to the rule.

Due to this decision every Police Officer, judicial official, sheriff and certain JP's now have a legal argument if ever caught. Likewise, the defence in this case have a whole raft of technical legal arguments that they are now armed thanks to her interference.

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Re: So in summary

I disagree. I would be highly sceptical of a judicial system whereby a potential office junior goes to see a (potentially senior) judge to ask what they were up to. If they suspect something unlawful has taken place then they did the right thing by reporting it up the chain. Your argument is really whether the CPS should have prosecuted not whether the person reviewing the access should have reported it to the CPS. The final judgement is with the CPS as to which cases go to trial.

I'm also not in favour of a judge making the decision that a jury was never likely to convict. Really? That's really for them to decide, not you Justice Fuckwit. Otherwise there's little point them ever being there.

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Thrown out? Or she should be jailed?

No jury would convict her?

Utter crap

I believe that the average member of public would not be lenient on a Judge breaking the rules. I believe this is the Judicial system protecting one of their own and playing by a totally different rule set to the average UK citizen.

She is a Judge, how can she judge anyone if she is breaking laws herself? Yes we know that laws don't affect everyone equally in this country, but to be so blatant is appalling. The excuse that a Jury wouldn't understand or care is laughable.

She herself will have jailed people for the same thing she has got away with.

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Re: Thrown out? Or she should be jailed?

@ Gordon Pryra

"She is a Judge, how can she judge anyone if she is breaking laws herself? "

Ummm ...., you seem to have lost sight of the fact that if you are not found guilty you haven't broken the law.

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WTF?

Re: Thrown out? Or she should be jailed?

So it would be better to sit back, allow the whole thing to run into a court case, then fail when it was realised that a material part of the session was compromised because some party or parties had not disclosed an association, or better yet the case was declared as a mistrial?

I am sure those costs and implications would be 'considerable'.

There is a possibly better way, that is for a suspicious party or their connected relative to be able to declare their family tree to another officially recognised 'case connected party'* and declare the risk of mistrial should overlapping connections be found between those conducting the case and the declarer.

*The access party to the case does need definition/clarification e.g. clerk of the court or higher.

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Re: Thrown out? Or she should be jailed?

As someone has already mentioned - she could have made contact through official channels once her daughter was summonsed to appear. There really was no need to have a look through the files.

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Re: Thrown out? Or she should be jailed?

"I believe that the average member of public would not be lenient on a Judge breaking the rules."

Sure, but she didn't break the rules because apparently there weren't any. She didn't "hack" anything she just opened some files that she clearly had access to. No training or guidance was given on appropriate use of the digital records system and an email advising not to use it this way was only sent out after she did it.

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Re: Thrown out? Or she should be jailed?

Ummm ...., you seem to have lost sight of the fact that if you are not found guilty you haven't broken the law.

That is entirely incorrect. Whether or not someone broke the law is dependent solely and entirely upon the intersection between their acts and activities proscribed by statutes.

Whether not someone is found guilty is dependent on an entirely different set of factors, including but not limited to:

a. the amount of evidence against them,

b. the amount of evidence they are successful in having invalidated,

c. their ability to fund a legal defense,

d. their influence in judicial and political circles.

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Re: Thrown out? Or she should be jailed?

> "Ummm ...., you seem to have lost sight of the fact that if you are not found guilty you haven't broken the law."

You seem to be confused about the idea of being treated as innocent until proven guilty and actually being innocent until proven guilty, they are quite different things.

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Anonymous Coward

> No jury would convict her?

> Utter crap

Oh, I dunno. The judge will clearly have access to the best possible barrister(s) [all at mates rates, of course] who could spend days baffling the jury so they wouldn't have a clue what to think.

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Try again

after a rejected comment (???)

Basically agreeing with Gordon Pryra upthread ... best people to decide if a jury would have convicted or not is ... a jury.

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Re: Try again

Having recently sat on a jury I'm inclined to agree with the judge here. I'm not judging whether she should or shouldn't have done what she did; clearly she shouldn't have and the warning he gave covers that. When the law is clearly explained to you in court as a juror it's very different to a snap decision after reading an article. The reality is that she probably didn't break a law as it's written and so no conviction would have happened. What the result would have been is over a dozen members of the public wasting a week of their lives and careers listening to the case.

Remember here that court isn't about right and wrong or good and evil. It's (usually) about whether someone did something described in a law in the manner it's described.

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Re: Try again

...after a rejected comment (???)...

Yes. There is something odd happening with moderatioo - over the last week....

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Anonymous Coward

best people to decide if a jury would have convicted or not is ... a jury.

Who judges the judges but the judges themselves ?

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Re: Try again

You mean like that one article that had just about every comment deleted after they were posted ?

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Re: Try again

"There is something odd happening with moderatioo"

Given the possibility of contempt of court on such a topic moderation is a reasonable course of action to take with this thread.

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Re: Try again

Seems like i'm not allowed to talk about it.

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(Written by Reg staff) Gold badge

Re: Re: Try again

Of course you can talk about this - but we are responsible for what is published here. And where UK court cases and judges are involved we will always err on side of discretion.

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Pint

I for one..

I for one feel sorry for the mods the lack of harsh comments and sly wit means they must be working hard to keep this thread civilised. In this mean time have a beer on me and don't worry, legal will stop fretting soon enough.

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Re: I for one..

I'm waiting for the inevitable "right to be forgotten" letter.

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Unhappy

Yet again, one rule for them, one rule for us. Looking after their own. Etc. etc.

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Anonymous Coward

Boils down to one thing

The need to know. Did this judge have a need to know if it is not one of her cases ? They might call it computer misuse but it is more likely (if it was more recent anyway) a GDPR violation. Any sensible system should lock all users who don't have a need to know out of information they shouldn't be viewing. So poor design and a very poor choice by the judge.

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Judge Dredd

Judge Dredd could access what he wanted, when he wanted, how he wanted. And then sort out the naysayers with his Lawgiver. Pah!

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So I can run afoul of this law so long as I have a good reason.

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Anonymous Coward

The same law for everyone ...

...applied without favour or it is not a law at all

If she acted against the law then she should face the same punishement as someone who was not a judge

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Re: The same law for everyone ...

She did receive the same punishment as non-judges. She was found not guilty of breaking any laws and so no punishment was given. The judge making that decision knows the law rather better than you do, but if you can suggest a law that she broke go for it. She did something bad, for sure, but she didn't break a law.

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Re: The same law for everyone ...

Obviously you haven't kept yourself up to date with how the computer misuse act is applied to the rest of the population.

People end up in a court room for accessing publicly accessible material, I know a couple of people who ended up in a courtroom for notifying hosting companies that there was publicly accessible documents/pages that looked like they should be private.

Few week later the cops arrive at their houses and employers, grab all hardware and media and make their lives hell for a couple of years.

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Anonymous Coward

Re: The same law for everyone ...

"She did receive the same punishment as non-judges", if a member or group unilaterally acts to prevents due process then clearly the law has not been served.

If the law is not the same for everyone then clearly it is broken and unjust

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Interesting precedent

Anyone notice the interesting precedent being set here?

Apparently, rather than an actual trial by jury it is sufficient to have a judge decide what a jury would have decided - if they had been asked.

Can anyone see a wider application of this principle?

Maybe the judge's role might even be assumed by some promising AI...

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Re: Interesting precedent

"Anyone notice the interesting precedent being set here?"

No. The court didn't have precedent-setting status.

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Re: Interesting precedent

Judges directing juries to return not guilty verdicts is quite common.

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