(a)
the number of Parties, so that a multilateral instrument is to be preferred to a bilateral
one especially where the existing or prospective Parties include states with which
regular co-operation is likely to be needed;
(b)
the comprehensiveness of the instrument in addressing the different aspects of an
effective anti-cybercrime regime: the definition of criminal offences; procedural law;
and mutual legal assistance and other forms of cross-border legal co-operation;
(c)
the practicality and realism of the instrument’s provisions: are they adequate to deal
with the urgency of many international requests concerning cybercrime; and are they
within the capacity of the intending Party;
(d)
whether the instrument creates binding obligations on its Parties or is merely
aspirational in character;
(e)
the extent to which the instrument ensures that human rights and procedural
safeguards are addressed;
(f)
whether the instrument carries with it support mechanisms, such as those maintained
by several international organisations which arrange meetings of Parties enabling
those operating the instrument on a day-to-day basis to reflect upon its operation,
develop guidelines as to best practice, and perhaps issue agreed statements as to
the interpretation of any provisions in the instrument which experience has shown to
be unclear.
2.11 Investigators should not necessarily assume that because an offence or investigation
involves cybercrime elements, they must use an instrument specific to cybercrime.
Instruments dealing with corruption, terrorism, and trafficking in narcotic drugs and
psychotropic substances may all be applied to cyber-investigations where the underlying
offences meet their respective substantive requirements. While not all cybercrime involves
organised crime elements, much of it does, and in any case where cybercrime or other
offences are ‘serious crimes’, ‘transnational in nature’ and involve an ‘organised criminal
group’ the co-operation provisions of the United Nations Convention against Transnational
Organized Crime (the Palermo Convention)16can be used if the countries involved are
Parties to it. The Convention offences of participation in the activities of an organised
criminal group (Article 5) and money-laundering (Article 6) may be particularly useful in
scenarios where cybercrime and organised crime coincide. Article 29(1)(h) provides
specifically for technical assistance in the techniques needed to investigate cybercrime
based on the fact that the technologies are commonly used by organised criminal groups.
The Commonwealth Model Law
Genesis
2.12 The one instrument that has been developed specifically for Commonwealth member
states is the Model Law on Computer and Computer-Related Crime, adopted by Law
Ministers in 200217. The initiative for the creation of the Model Law came from Law Ministers
at their 1999 Meeting in Port of Spain, Trinidad and Tobago. At that Meeting, Law Ministers
considered the impact of technology on various aspects of the law and one of the issues
16
U.N. Convention against Transnational Organized Crime (Palermo Convention), A/RES/55/25, Annex I, in force
29 September 2003, U.N.T.S. 39574.
17Text available at:
http://www.thecommonwealth.org/shared_asp_files/uploadedfiles/%7BDA109CD2-5204-4FAB-AA7786970A639B05%7D_Computer%20Crime.pdf
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