Section 3 of the Cybercrime Code Act 2016 is short but structurally important: it tells you which other law fills the gaps.
Section 3(1) — what the Criminal Code supplies
Unless stated to the contrary, the provisions of the Criminal Code Act (Chapter 262) relating to —
(a) criminal practice and procedure; and
(b) jurisdiction, including sections 12, 13 and 14; and
(c) punishments, including sections 18 and 19,
apply to this Act.
The Cybercrime Code Act creates offences and states penalties. It says almost nothing about how a prosecution is brought, where it is heard, how a sentence is structured, or what general defences apply. All of that comes from the Criminal Code.
The named sections are significant:
Sections 12 to 14 deal with jurisdiction — including offences with a cross-border element, which matter greatly in cybercrime, where an offender, a victim and a server may be in three different countries.
Sections 18 and 19 deal with punishment. Section 19 is expressly referred to in several offences in this Act — for example section 19(2) of this Act, which provides for imprisonment for life for grooming a child under 16 subject to section 19 of the Criminal Code. Section 19 of the Code gives a court a general discretion to impose a lesser sentence than the maximum, and to make other orders in lieu.
The Code also supplies the meaning of key terms used in this Act: “criminally responsible”, “offence”, “possession” and “property” are all defined in section 2 of this Act by reference to the Criminal Code.
Section 3(2) — additional, and prevailing
The provisions of this Act are in addition to and not in derogation of the Criminal Code or any other law relating to criminal matters — and where there are any inconsistencies between the provisions of this Act and the Criminal Code or any other law relating to criminal matters, the provisions of this Act shall apply.
Additional. Conduct may be an offence under both this Act and the Criminal Code, and a prosecutor may choose. Using a computer to defraud someone is electronic fraud under section 12 of this Act, and may also be an offence under the Code.
Prevailing on inconsistency. Where the two conflict, this Act wins. That is the reverse of the usual position for a later specific statute sitting alongside a general code, and it is stated expressly.
Note the breadth of the second limb: not only the Criminal Code but any other law relating to criminal matters.
Where the Act incorporates Criminal Code offences directly
| Cybercrime Code Act | Criminal Code reference | Effect |
|---|---|---|
| s 18(1) | Sections 229R, 229S and 229T | Using an electronic system or device to commit any of those offences is a crime under this Act, with its own penalties |
| s 21(9), (10) | Section 362E — protection of matters of public interest | Applies to online defamation; and “public meeting” includes online discussion forums, whether or not on social networking sites |
| s 24(2)(a) | Any indictable offence or offence under the Code or any other law | Threatening to accuse a person of such an offence, to procure gain, is cyber extortion |
| ss 19(2), 22(3), 23(3) | Section 19 | Life imprisonment provisions operate subject to the Code’s sentencing discretion |
| s 48 | Section 421 | The procedure by which a District Court constituted by a Principal Magistrate deals summarily with a Schedule 2 offence |
| s 2 | Sections 1 and 3 | Definitions of criminally responsible, offence, possession and property |
Rather than re-writing the child pornography offences, section 18(1) makes it a crime under this Act to use an electronic system or device to commit the offences already in sections 229R, 229S and 229T of the Criminal Code — with a penalty of up to 25 years or K100,000 for an individual and K1,000,000 for a company.
The Act adds a technological element to an existing offence, and raises the stakes.
Other statutes the Act relies on
- Juvenile Justice Act 2014 — applies where an offence is committed by a child between 10 and 18 (s 5(3)), and governs the penalties for child offenders under sections 14, 22 and 23.
- Search Act (Chapter 341) — the search powers in section 33 are in addition to those in that Act.
- Evidence Act (Chapter 48) — governs evidence under this Act (s 43(2)), and Part II applies to judicial notice (s 42(2)).
- Mutual Assistance in Criminal Matters Act 2005 and Extradition Act 2005 — ss 46 and 47.
- Gaming Control Act 2007 — supplies the meaning of gaming and gaming operator in s 14(3).
- Copyright and Neighbouring Rights Act 2000, Trade Marks Act (Chapter 385) and Patents and Industrial Designs Act 2000 — ss 28, 29 and 30 make repeated online breaches of those Acts crimes under this one.
- National Information and Communication Technology Act 2009 — supplies the meaning of ICT service.
The Cybercrime Code Act is therefore best read as a layer over the existing criminal law: it adds offences where technology creates new wrongs, criminalises online breaches of other statutes, and provides a procedural code for electronic evidence — while leaving the framework of prosecution, jurisdiction and sentencing to the Criminal Code.
Sources
- Cybercrime Code Act 2016 — ss 2, 3, 5, 14, 18, 19, 21–24, 28–33, 42, 43, 46–48
- Criminal Code Act (Chapter 262) — ss 1, 3, 12–14, 18, 19, 229R–229T, 362E, 421
- Juvenile Justice Act 2014; Mutual Assistance in Criminal Matters Act 2005; Extradition Act 2005
The Search Act (Chapter 341) and the Evidence Act (Chapter 48) are cited without links as they are not currently available on PacLII.
Before relying on anything here, read the current text of the Cybercrime Code Act 2016 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.