Spyware Sentence

February 23, 2007

In Waters [2007] EWCA Crim 222, a sentence of four months’ imprisonment was upheld in respect of an offender, aged 67 and of previous good character, who had conspired to install surveillance software (‘spyware’) on his wife’s computer because he wrongly suspected that she had concealed her true assets from him during divorce proceedings. The offender, Anthony Waters, and his son had pleaded guilty to an allegation of conspiracy to cause unauthorised modification of computer material.

The offender met a representative of a detective agency, AIS, who was a serving police officer who had told his employers that he was unfit through sickness to work. He suggested that spying software be installed on the computer of Mrs Waters. It was a computer that she used at the company’s business premises. The computer was sent away on a pretext and the software necessary for this spying activity was installed.

When interviewed, the offender gave a prepared statement admitting tasking AIS through his son to target his wife. He said that the computer in question was company property and claimed that there was nothing illegal about monitoring its usage. However, he admitted that members of staff had not been informed that any such policy was in place and no other member of staff had been subjected to this kind of surveillance.

The Court of Appeal recognised that his offending was ‘far from the top of the range’ and took into account various mitigating factors including a letter from the offender’s wife which made it clear that she had forgiven him and that she was devastated to learn that he had been sentenced to imprisonment. But the Court of Appeal was not swayed into accepting that the sentence was manifestly excessive. The judgment concludes ‘Computers are an established part of modern life. An increasing amount of personal and private information is kept on computers, not only by the State and large organisations but also by individuals. The privacy of that information must be protected and it is vulnerable to the kind of unauthorised interference and intrusion that occurred in this case. The judge correctly identified deterrence as an element of sentencing in this case. In our judgment, a sentence of imprisonment for offences such as this was not wrong in principle’.