Most offences in the Cybercrime Code Act 2016 are crimes triable on indictment in the National Court. Section 48 allows twelve of them to be dealt with summarily.
Section 48 — indictable offences triable summarily
Where a person is charged before a District Court constituted by a Principal Magistrate with an offence specified in Schedule 2, the Court may deal with the charge summarily according to the procedure in section 421 of the Criminal Code Act (Chapter 262).
A Principal Magistrate. Section 2 defines a “principal magistrate” as a magistrate duly empowered to preside in respect of committal proceedings or a Grade V Magistrate. An ordinary District Court magistrate cannot use section 48.
“May”. The section is permissive. The Court retains a discretion, and the section 421 procedure governs how it is exercised — including the defendant’s position and the seriousness of the particular case.
Schedule 2 — the twelve offences
| Section | Offence | Maximum for a natural person |
|---|---|---|
| 6(1) | Unauthorised access or hacking | 5 years or K7,000, or both |
| 8 | Data interference | 10 years or K20,000, or both |
| 9(1) | System interference | 10 years or K10,000, or both |
| 11 | Illegally remaining | 7 years or K10,000, or both |
| 14(1) | Electronic gambling or lottery by a child | 7 years, or an ICT prohibition, or both |
| 15 | Identity theft | 10 years or K15,000, or both |
| 21(2) | Defamatory publication | 15 years or K25,000, or both |
| 22(1), (2) | Cyber bullying | 7 years; 25 years where harm results |
| 23(1), (2) | Cyber harassment | 7 years; 10 years where harm results |
| 25(1) | Unlawful disclosure | 15 years or K20,000, or both |
| 26 | Spam | 12 months or K5,000, or both |
| 31 | Unlawful advertising | 10 years or K20,000, or an ICT prohibition |
What the list shows
Schedule 2 lists section 6(1) but not 6(2) — hacking that causes damage or loss. It lists 9(1) but not 9(2) — system interference with critical infrastructure. It lists 21(2) but not 21(3) or 21(4) — knowingly false defamation and defamation for extortion. It lists 22(1) and (2) and 23(1) and (2) but not 22(3) or 23(3) — where death results. And it lists 25(1) but not 25(2) — disclosure by an insider with lawful access.
The aggravated forms stay in the National Court.
Not in Schedule 2 at all: illegal interception (s 7), data espionage (s 10), electronic fraud (s 12), electronic forgery (s 13), gaming operator offences (s 14(2)), illegal devices (s 16), pornography (s 17), child pornography (s 18), child online grooming (s 19), animal pornography (s 20), cyber extortion (s 24), cyber attack (s 27), the intellectual property offences (ss 28–30), and the ICT service provider offences (ss 44–45).
Those are the offences carrying 15 to 30 years, life imprisonment, or corporate fines of K1,000,000. They are tried on indictment.
Why summary trial matters
- Speed and cost. A summary hearing in a District Court is quicker and cheaper than committal followed by trial in the National Court.
- Accessibility. District Courts sit in far more places than the National Court, which matters in a country where many complainants and defendants are a long way from a National Court registry.
- Sentencing limits. Summary disposal under section 421 of the Criminal Code carries its own limits on the penalty that may be imposed — a significant consideration where the offence in this Act carries a maximum of 15 or 25 years.
- The Court’s discretion. Because section 48 says may, a Principal Magistrate faced with a serious example of a Schedule 2 offence — a large-scale identity theft, a sustained campaign of cyber harassment — may decline to deal with it summarily.
The offences most likely to be encountered by ordinary people — defamatory publication, cyber bullying, cyber harassment and spam — are all in Schedule 2. Those are the charges most likely to be brought in a District Court.
Note, though, that section 23(4) — posting obscene, vulgar or profane commentary — is not in Schedule 2, even though sections 23(1) and (2) are. That offence, carrying up to 10 years for an adult, is triable on indictment.
Where a child between 10 and 18 is charged, section 5(3) applies the Juvenile Justice Act 2014 to the proceedings, whichever court hears the matter.
Sources
- Cybercrime Code Act 2016 — ss 2, 5, 6–31, 44, 45, 48; Schedule 2
- Criminal Code Act (Chapter 262) — s 421; Juvenile Justice Act 2014
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.