Just for instance, this is a hypothetical scenario:

• Jack and Dan are two brothers living together in the UK, their apartment rent contract is in Jack's name • The ISP Internet contract they're using is in Dan's name • Jack decides to travel for a few weeks and leaves his phone  (which is registered in Jack's name) with Dan • Dan uses Jack's phone, connected to their home Wi-Fi, to commit an online crime, while Jack is abroad and unaware of this

Who gets punished? Would Jack's passport having a stamp proving he was out of the country serve as a defence, or is he held responsible because the phone was registered in his name (although the ISP contract is registered in Dan's name)?

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    Who actually committed the crime, and just as importantly, can they be shown guilty of it beyond a reasonable doubt (or the equivalent standard)? – Nij Jan 8 '18 at 9:37
  • Hypothetically, Dan committed the online crime using Jack's phone (which he trusted him with ) while Jack was travelling abroad. Could Jack defend himself in court by providing the fact that his passport stamps prove he was out of the country when Dan committed the online crime? This is a hypothetical – Alexander A Jan 8 '18 at 10:04
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    Jack would never go to court. Prosecutors aren't stupid enough to charge somebody who was in a different country at the time of offence unless they have evidence of direct involvement. – Nij Jan 8 '18 at 10:12

There's a confusion in the question between who is responsible for the crime and who may be prosecuted or punished.

Since Dan committed the crime, he is responsible, and should be tried for it. Jack should not be prosecuted (unless there is a strict liability offence about allowing your account to be misused; such things are under discussion but I don't know of any that actually exist).

However, since law enforcement officers are not clairvoyant, they will investigate the evidence (which shows that Jack's phone was used in this crime), and question Jack; if he can show his innocence, he will not be prosecuted. If he cannot, he might be prosecuted but, since the prosecution cannot prove his guilt, would be acquitted if so.

Whether 'being out of the country' is proof of innocence in an internet crime: whether Jack should tell the police that Dan used the phone: whether Jack should simply say "I had nothing to do with the crime, and it's up to you to prove otherwise": these are points that depend on the specific law, and I would think Jack should consult a lawyer.

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  • "unless there is a strict liability offence about allowing your account to be misused; such things are under discussion but I don't know of any that actually exist" if such laws were passed later after the hypothetical online crime, would it affect the outcome? – Alexander A Jan 8 '18 at 11:36
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    It would mean that both brothers could be prosecuted for different crimes. Note, though, that retrospective laws are unconstitutional in the US; see this question. – Tim Lymington Jan 8 '18 at 11:49
  • So, hypothetically Jack had no criminal intent when he left his phone with Dan. Am I right? – Alexander A Jan 8 '18 at 11:54
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    It's your example: nobody else knows anything about intentions. Leaving your phone with somebody is not against any law that I know of. – Tim Lymington Jan 8 '18 at 12:01

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