Octopus Cybercrime Community

Montserrat is in the process since October 2020 of introducing legislation within the Penal Code to establish standards which will guard against computer-related crimes. The Amendment Bill (2020) will amend the current Penal Code (Cap. 4.02) (2019) with substantive laws and safeguards.

The sections 356 and 19 of the Penal Code (2019) as well as the sections 289 A to S of the Draft Amendment Bill (2020) of this Code contain offences of:

• illegal access (sections 289B and 289C),
• illegal interception (section 289D),
• illegal data interference (section 289E) and illegal acquisition of data (section 289F),
• illegal system interference (section 289G) and offences affecting critical infrastructure (section 289H),
• illegal devices (section 289I),
• computer-related forgery (section 289K),
• computer-related fraud (section 289L),
• identity-related crimes (section 289J),
• child pornography (sections 289A, 289L and 289O),
• harassment utilising means of electronic communication (section 289P),
• spam (section 289Q),
• spoofing (section 289R),
• attempts to commit offences (section 356 of the Penal Code of 2019),
• principal offenders (section 19 of the Penal Code of 2019) and
• offence by body corporate (section 289S).

Montserrat has a common law type judicial system and relevant provisions have been found in the Criminal Procedure Code (2019), Evidence Act (2019), Police Act (2019) or Magistrate’s Court Act (2019). This is for implementation of provisions related to production orders and search/seizure (Criminal Procedure Code, Part 3.B, Sections 10 and 11, Magistrate’s Court Act, Part 2, Sections 22.a.b.f, 80 and 144 and the Evidence Act Section 12).

Most of the rights and safeguards are enshrined in Montserrat’s Constitution (2010) which provides in Part I the fundamental rights and freedoms of the individual (section 2) such as the protection of right to life (section 3), from inhuman treatment (section 4), of prisoners to humane treatment (section 8), from arbitrary arrest or detention (section 6), of private life and family life and privacy of home and other property (section 9) and provisions to secure protection of law (section 7) which include among others the presumption of innocence, time and facilities for the preparation of the defence, free of charge legal assistance, the right to be tried by a jury, principle of active law, double jeopardy (ne bis in idem) and double jurisdiction.

An interpretative article for the purpose of Part I is section 21, which among other definitions, includes the definition of a “minor”, “court” or “legal representative”.

Other safeguards are provided in Evidence Act (2019) (Chapter 2.08, Section 5) such as the right not to incriminate oneself, as well in the Criminal Procedure Code (2019), such as: defendant’s rights (Part 12, Section 68), principle ne bis in idem (Part 15.B, Section 109).

• Constitution of Montserrat (2010)
• Penal Code (2019)
• Penal Code (Amendment) Bill (2020)
• Criminal Procedure Code (2019)
• Evidence Act (2019)
• Magistrate’s Court Act (2019)
• Police Act (2019)
• Extradition Act (2013)
• Criminal Justice (International Co-operation) Act (2019)

• The Criminal Justice (International Co-operation) Act (Part I – Criminal proceedings and investigation” which contains Mutual Service of process, Mutual provision of evidence, Additional Co-operation Powers).
• Criminal Procedure Code Act.
• Extradition Act, as well as Mutual Legal Assistance (U.S.A) Act in criminal matters which is currently taken into consideration.