The Crown Prosecution Service (CPS) is considering appealing a judge's decision that a teenager who was accused of bombarding a former employer with millions of emails had no case to answer.
The CPS indicated that it is carefully considering an appeal to the High Court against District Judge Kenneth Grant's decision.
"We are considering making an appeal by way of a case stated," a CPS spokesperson said on Wednesday.
The case was dismissed in November at Wimbledon Magistrates Court. The teenager, who cannot be named for legal reasons, allegedly sent five million emails to his ex-employer in a denial-of -service (DoS) attack, crashing its server. The youth was charged under the Computer Misuse Act (CMA).
Judge Grant ruled that this kind of attack is not illegal under the CMA, because the sending of an email would not cause any unauthorised modification to the server that received it.
Late last year the CPS asked Wimbledon Magistrate's Court to submit a draft case outlining how it reached its decision. It received this in December, and is currently studying it.
"We have asked Wimbledon Magistrate's Court to state its case, and we are considering the case as stated. We may go to the High Court to ask its opinion on the case," said a spokesperson for the CPS.
In a document containing the draft case seen by ZDNet UK, Judge Grant says: "The question for the High Court is whether, on the evidence before me, I was entitled to find that there was no case to answer."
The CPS may now ask the High Court for its opinion on the Judge's interpretation of the law, with a view to overturning the ruling.
"An appeal is normally aimed at overturning a conviction or an acquittal. We have the right to appeal against what we believe is a wrong in law," said a CPS spokesperson.
The CPS spokesperson added that if an appeal is successful and the judge's decision was overturned, the case would continue in the magistrate's court.
"The High Court, and the Administrative Court section of the High Court can uphold the magistrate's decision, or they can quash it. If the decision was upheld, then the decision would stand. If the decision was quashed, this wouldn't mean a retrial — the case would go back to the magistrate's court, and continue there," said the CPS spokesperson.
The Computer Misuse Act is widely regarded as being inadequate by experts, because it does not cover DoS attacks.
In November 2005 Derek Wyatt MP, chairman of the All Party Parliamentary Internet Group, chastised the government for failing to strengthen the CMA. Wyatt called for the government to bring in legislation criminalising DoS attacks as soon as possible.
"It's time they found a way of including the small changes necessary in a Home Office bill or helped with a Private Member's bill," said Wyatt.
The teenager accused of email bombing his former employer is also keen for the CMA to be modified to make DoS attacks illegal. He told ZDNet UK that a potential High Court appeal by the CPS could actually be a good thing.
"An appeal was expected, and to be honest I'm quite glad it's going to the High Court. It'll hopefully get to the stage where it'll get to be a well known case and there will be a need for law reform, which I'm quite happy to be a part of, seeing as the current computer law is pretty useless and needs amending," the teenager said. "On a more personal note — seeing as I'm the one being prosecuted, it's not the most thrilling thing in the world."