CIIS154: Introduction to

IT LAW
Name Thomas Henaku
Email thenaku@gtuc.edu.gh
Office FoCIS
Mobile 0202698196
Monday: 10:00AM – 2:00PM
Tuesday: 2:00PM – 4:00PM
Office Hours
Friday: 11:00AM – 12:00 Noon
OR by Appointment
 Lecture 7:

Information & Communication

Technology Fraud
 Agenda
• Introduction • What is Fraud?
• Basics of Criminal Law • Conspiracy to Defraud
• The Computer as an • The Law of Attempts
Unwitting Accomplice • ICT Fraud as Theft
• The Old Deception • Summary
Offences
 Basics of Criminal Law
• Generally, criminal offences are dealt with under the Criminal Offences
Act 29 of 1960
• Elements of criminal offence
1. mens rea (roughly equating to a guilty mind)
2. actus reus (the prohibited acts or omissions)
• Cyber offences are dealt with under Sections 107 to 140 of the Electronic
Transaction Act 772 of 2008.
• Example:
• Sections 1- 4 of Article 130 of Electronic Transactions Act deals with unauthorized
access to computer material
• mens rea – an intention to secure access to any program or data and concurrent knowledge
that the access is unauthorized.
• actus reus – causing a computer to perform any function and the fact that the intended
access is unauthorized.
• No mens rea for strict liability offences.
• For example, driving during the hours of darkness with a faulty rear light
• Both mens rea and actus reus must be established for a criminal offence
 The Computer as an Innocent Accomplice

• Computer systems are sometimes vulnerable to criminal activities.

• Example:
• An employee of a bank using computer to detect a dormant account and forging the
holder’s signature to withdraw money.
 The Old Deception Offences
• The old deception offences in Act 29 of 1960 include:
o obtaining property dishonestly
o obtaining money transfer dishonestly
o obtaining a pecuniary advantage dishonestly
o obtaining services dishonestly
o evasion of liability dishonestly
• Defects of the deception offences
o It had to operate on a human mind
o Offences were of no use without human intervention
o No equivalent offence of theft of a service
• The Electronic Transactions Act 2008 resolves defects with old
deception offences
 What is fraud?
• Fraud occurs when an act is done by one person with the intention
that it should deprive another person of some value to which the
person is otherwise entitled and when it in fact causes such loss.
• An intent to defraud is defined under section 16 of the criminal code
Act 29 as follows:
o ‘An intent to defraud means an intent to cause, by means of such forgery,
falsification or other unlawful act, any gain capable of being measured in
money, or the possibility of any such gain, to any person at the expense of any
other person’.
• Fraud by False Pretences:
o The offence is committed if a person misrepresents an existing state of facts
such that the misrepresentation induces another person to consent to
parting with the ownership of any chattel.
o The representation may take the form of either ‘written or spoken words’ or
by any conduct, sign or means of whatever kind.
 What is fraud? (cont.)
• Fraud by false pretence
o can also be about anything and may even be misrepresentation of a right, liability, authority, ability, dignity or
ground of credit or confidence.
o can also cover impersonation of another as well as consciously deriving benefit from a situation of mistaken
identity.
o is also applicable to a person who by reason of identical name obtains advantages and privileges that would
not have otherwise been granted had the fraudster not been mistaken for the more famous namesake.
• The scope of fraud by false pretence extends to
o Falsification of Accounts
o State Revenue Related Frauds Invoicing/Vat Frauds
• Fraud by abuse of position
o This applies where a person occupies a position in which he is expected to safeguard, or not to act against,
the financial interests of another person.
o Occurs where such a person dishonestly abuses that position, intending by that abuse to make a gain for
himself or another or to cause loss to another or to expose another to a risk of loss.
o Abuse of position applies even where the conduct consists of an omission rather than an act, for example, by
failing to warn the victim of something that could affect his financial status.
• The penalties for fraud are:
o On summary conviction, imprisonment for a term not exceeding 12 months and/or a fine not exceeding the
statutory maximum;
o on conviction on indictment, the maximum penalty is imprisonment for a term not exceeding 10 years and/or
a fine.
 What is fraud? (cont.)
• Articles for use in fraud:
• There are two forms of offence involving articles for use in fraud.
o possession of such an article
o making or supplying such articles
• ‘Article’ is defined as including any program or data held in electronic form.
o include a machine for counterfeiting banknotes or credit cards, counterfeit goods and infringing
copies of CDs and DVDs.
• Possession of articles for use in frauds
o the offence is made out where a person has in his possession or under his control any article for
use in the course of or in connection with any fraud
• Making or supplying articles for use in frauds
o This offence is made out where a person makes, adapts, supplies or offers to supply any article:
➢ knowing that it is designed or adapted for use in the course of or in connection with fraud;
➢ intending it to be used to commit, or assist in the commission of, fraud.
 What is fraud? (cont.)
• Obtaining services dishonestly:
• The offence is committed by a person who obtains services for himself or another by a
dishonest act where:
a) the services are made available on the basis that payment has been, is being or will be made for
or in respect of them,
b) he obtains them without any payment having been made for or in respect of them or without
payment being made in full, and
c) when he obtains them, he knows –
i. that they are being made available on the basis described in paragraph (a), or
ii. that they might be,
…. but intends that payment will not be made, or will not be made in full.

• The offence would apply, for example, where a person gains access to a database
available only to subscribers.
• The dishonest act would be using a password or access code which the person is not
entitled to use, knowing this is the case.
 The Electronic Transaction Act 2008
• The Electronic Transaction Act 2008 fully came into force on 18th
December 2008.
• Fraud by false pretence under the Electronic Transaction Act (Section 109)
states:
o ‘Section 133 of the Criminal Offences Act, 1960 (Act 29) on false pretences applies
with the necessary modification to a representation whether or not the medium used
in communicating the representation in part or in whole was an electronic processing
system and whether or not the representation consists of an electronic record in part
or in whole’.
• Section 133 of the Criminal Offences Act is rooted on section 131 of the
same Act 29 which sets out the basic statement that:
o ‘Whoever defrauds any person by any false pretence shall be guilty of a second-degree
felony’.
• A person is guilty of fraud if he is in breach of section 108 of the Electronic
Transactions Act 2008 in relation to any of sections 129, 131, 132 and
133 of the Criminal Offences Act 29.
 Conspiracy to Defraud
• A conspiracy is an agreement between two or more persons to carry
out an unlawful act.
• Conspiracy may be statutory or common law.
o A statutory conspiracy is when a person agrees with another or others to
embark upon a course of conduct which will necessarily amount to or involve
a criminal offence
➢ An example is where two persons agree to steal a computer; both will be guilty of a
conspiracy to steal the computer even if they do not go on actually to steal it.
o The common law offence of conspiracy to defraud is separate and distinct
from the fraud offences
 The Law of Attempts
• To be charged with an attempt to commit a criminal offence, the person
involved must have done an act which is ‘more than merely preparatory to
the commission of the offence’.
• The scope of the law of attempts was uncertain when it came to computer
fraud.
o In respect of the offence of obtaining services dishonestly, the law of attempts
retains a residual value in terms of ICT fraud (i.e. submitting someone else’s credit or
debit card details dishonestly to obtain the service should suffice as an attempt).
o Thus, attempting to gain access to computer data in order to carry out a fraud by
dishonestly making a false representation is an offence
o If a fraudster gets so far as to actually make the false representation, he will have
committed the fraud offence itself, regardless of whether the false representation
was successful in meeting its aim.
 ICT Fraud As Theft
• If a person carries out a fraud which results in that person obtaining
property, including money or a bank credit, the offence of theft may have
been committed.
• Theft (stealing) is defined in sections 120 –126 of the Criminal Offences
Act 1960.
• A person is guilty of theft or stealing if he dishonestly appropriates
property belonging to another with the intention of permanently
depriving the other of it . . .
• The words ‘dishonestly’, ‘appropriates’, ‘property’ and the phrases
‘belonging to another’ and ‘with the intention of permanently depriving
the other of it’ all have special legal meanings which are set out in sections
120 – 126 of the Act.
 ICT Fraud As Theft (cont.)
• As far as ICT fraud is concerned:
a. the definition of ‘property’ is very wide and will cover most things that can
be stolen with the aid of a computer or telecommunications equipment,
but land does not usually come within the meaning of property
b. property is deemed to ‘belong to another’ if that person has control of it or
has any proprietary right of interest in it
c. ‘appropriation’ is the assumption of the rights of the owner
d. the ‘thief’ must intend to permanently deprive the other of the property
 Summary
• Criminal offences may be analyzed according to the:
o mens rea, the mental elements (guilty mind);
o actus reus, the prohibited acts or omissions.
• Most criminal offences are set out in legislation though some
common law offences remain.
• Offences may be classified as:
o summary, triable in a magistrates court only;
o indictable, triable only in the High Court; and
o offences triable either way.
• In terms of tackling ICT fraud, the old deception offences suffered
from the probability that it was not possible at law to deceive a
machine.
 Summary (cont.)
• The Electronic Transaction Act brought in a number of offences
appropriate to tackle ICT fraud, including:
o dishonestly transferring funds electronically;
o phishing;
o using bogus websites to obtain personal details such as bank account details;
o spyware,
o dishonest use of telecomms and information society services.
• The Criminal Offences Act and the Electronic Transaction Act cover three
forms of fraud:
o fraud by false representation;
o fraud by failing to disclose information;
o fraud by abuse of position.
 Summary (cont.)
• There is also an offence of obtaining services dishonestly.
• There are two offences relating to articles for use with fraud:
o possession or being in control of an article;
o making, adapting, supplying or offering to supply an article.

• Conspiracy to defraud remains available for the time being. The

offence did not require that a person had been deceived.
• The law of attempts remains useful in limited cases.
• If a fraud is completed, a charge of theft may be appropriate