Clean Hands doctrine and Plausible Deniability There is a question on the Superuser forum wherein a bad actor is trying to trick someone into connecting to an access point, presumably so they can sniff information. They are doing this by setting up an access point with a very similar name to their victim. Were the victim to turn the tables and deliberately make use of the provided connection, using a VPN to neutralise the threat, would they have "plausible deniability" being that the name of the access points were very similar (but bearing in mind they are using a VPN)? Also, assuming this matter ever went to a court (which I assume is unlikely), could the user use a defense that the other party did not have clean hands? Would it matter if it was dealt with as a Criminal and Civil matter ? I'm interested in the general concepts underpinning these concepts more then explicit statutes, so pick a jurisdiction if it can help the mental processes!
Given that both parties have committed criminal offenses (the 'bad actor' is attempting fraud and the 'victim' has committed unauthorized access to a computer system), no court would hear a civil case between these parties. As a matter of public policy, criminals do not owe a duty of care to each other so no one can win this case.
united-states Messaging (and other online communication) are fixed media. A face-to-face conversation, or a telephone call, does not exist at all - except in the mental recollections of the participants. And those are always very problematic as evidence, because people's recall is inaccurate. Whereas communication in a fixed medium is durable: a newspaper, a sound recording, security camera footage. It stands on its own and can be examined by experts. What catches a lot of people off guard about the Internet is they are mostly fixed media. Prior to the Internet, investigation of harassment almost entirely depended on anecdotal evidence. It was difficult to prosecute cases which were entirely based on the victim's word. The closest any of this came to objective evidence was a polygraph, and that wasn't reliable. Of course we want bona-fide victims protected, but what keeps a malicious actor from putting someone else in jail with words alone? Now with the Internet, much of the evidence is rendered in fixed media. This is a &quot;breath of fresh air&quot; for such prosecutions! However, just like any other physical evidence, it must be brought into evidence by the testimony of persons, and that testimony gets to be cross-examined. And this is where your concerns about provenance get addressed. A party will assert that the messages are forged, and that will be examined. The validity of evidence is itself on trial. There are two evaluations: first whether the evidence is even valid enough to present to a jury, and evidence that makes the cut is then examined and cross-examined in front of the jury. Keep in mind that contrary to TV drama, there's no &quot;surprise evidence&quot;. Almost any evidence - and certainly ALL evidence in a fixed medium - must be shared with the other party long before trial. Pre-trial, it will be challenged, the phone/device subpoenaed and turned over to experts for analysis. If it is evident that the party &quot;has conveniently deleted or lost&quot; the material, the evidence will be thrown out. And if the party is proven to have falsified the data, they're in much worse shape. A lot of chat services keep chat logs on the server/cloud, in the clear. Getting those is as easy as subpoenaing them, and that will be a canonical answer because the ISP would have no reason to lie. For a service where chat logs are kept in the clear only by individuals who choose to keep them, then &quot;reading those logs into evidence&quot; will involve a cross-examination of the parties involved as to their honesty and motivations. I don't know what and how WhatsApp stores when they log chats, so I don't know if there's any cryptographic information there that could be authenticated. But certainly if &quot;he&quot; presents one chat log, and &quot;she&quot; presents a different chat log, then we're clear around to &quot;he said, she said&quot;. But all of it together can be examined. For instance, linguists can look at other chats, discern the writing styles of each party, and then look at the disputed lines and examine who is more likely to have written those. And they give testimony on that. So it is evidence, but it gets two rounds of possible challenge: First as to whether the evidence is reliable enough to even present to the jury, and then experts testifying in front of the jury their opinion of its reliability.
This Question Is Tricker Than It Seems One of the things about being a non-expert in a field is that it is very difficult to know in advance what is a hard question and what is an easy question. Some questions that seem like they should have simple, straight forward answers are actually very hard to answer. Some questions that seem like they should be very difficult and have involved tricky answers are actually very easy. Without an in depth understanding of the field, you just can't know in advance. It turns out that this particular question is a quite hard question to answer. So, rather than really providing a clear answer, I will explain what about this question makes it hard to answer in this answer. Even this incomplete and ultimately inconclusive answer will require far, far more words (2,078 to be exact), than were necessary to pose the question (94 words). Essentially, the core difficulty is that there are several different principles of law that apply to this fact pattern, each of which, individually have specific things that have to be proved to establish that some legal consequence will follow (which in turn are often themselves intrinsically indefinite), and each of which has exceptions that could also be proved if specific things happen. In part, this is because, while the fact pattern set forth is not freakishly unforeseeable, it is also not a fact pattern that was contemplated when any of the individual legal principles that are implicated were conceived. Likewise, the interaction of these different legal principles in one fact pattern wasn't contemplated and there is probably no one clear controlling case precedent on point that involved this fact pattern. What the law does in cases like these (which come up all the time in real life) is to break down each legal theory individually and analyze it, possibly spread over multiple distinct court cases in different courts in front of different judges. I'll try to unpack the issues (dispensing with U.K. legal terminology in some cases, since I'm only trying to provide a sense of why this is complicated and not to provide a definitive answer to how it is resolved under U.K. law). Possible Claims, Charges, and Defenses; Traffic, Civil, and Criminal It is a crime to threaten someone with weapon or in another way that puts someone at risk of imminent harm. Depending upon the weapon and other circumstances, mere possession of the weapon might be a crime in the U.K. Someone who has been threatened with weapon or in another way that puts them at risk of imminent harm can be a civil lawsuit for money damages against the person making the threat which was called &quot;assault&quot; in historical common law. Someone who has been threatened by another can seek a restraining order/protective order directing that person to stay away from them in the courts in a civil action. Hitting someone else's car is a traffic violation, unless a defense to the traffic violation is present and proven. Hitting someone else's car with a statutorily mandated level of intent is a crime, unless a justification for the crime is present and proven. The person whose car was hit could credibly argue that hitting the door was a mistake, not because the door was hit, but because the driver intended to kill them and missed, so an attempted homicide charge could raised in a criminal proceeding. The person whose car was hit could argue that there was an intend to put them in imminent risk of harm providing a basis for a civil lawsuit for money damages for common law assault. Someone whose car is hit by another car through negligence or recklessly or intentionally can bring one or more claims in a civil lawsuit against the person who car hit their car for money damages. The standard of care for negligence is established by how a reasonable person would act under the circumstances. Self-defense is a possible defense to traffic offenses, criminal charges and civil liability related to harming another's property if the conditions for self-defense apply, which include a risk of imminent harm to oneself, another, or one's property, and if the action taken in self-defense is reasonably proportional under the circumstances as evaluated by a reasonable person in response to the threat. But, if the response of the person making the threat with the weapon was as a result of actions in which the person threatened with the weapon was the true aggressor, then the privilege of self-defense would be forfeited. In real life, good attorneys for the parties could almost certainly solicit and call attention to additional facts not mentioned in the question that would further muddy the waters and raise additional claims, charges, and defenses to claims beyond the ten listed above. I could analyze each of these issues on the facts in depth as best I could with references to statutes and case law (under a body of law other than U.K. law anyway), which would take a few lengthy and heavily researched paragraphs each that would take a fair amount of time each to prepare, but I won't. A full analysis would help you weigh the odds a little better, and if I was a lawyer of a party in this situation, I would do that since every little edge counts in litigation and negotiations of settlements. But even if I did that, it would still leave a lot of uncertainty regarding the final resolution of these questions on the merits. Decision-Making Regarding Bringing Claims The traffic and criminal charges would be brought or not brought largely in the discretion of the Crown attorney or some other government official. It is most likely that a government official making that decision is doing so because the offense was referred to them by the police officer who responded to the scene, or a police officer who received an informal complaint (as opposed to a civil court filing) from one of the parties, or through a complaint delivered directly to the prosecuting authority by an alleged victim. A prosecutor doesn't have to bring claims just because someone asks them to, and doesn't have to bring all possible claims even if some are pursued. The parties themselves would decide whether or not to bring civil claims against each other. Whoever is sued first would make the decision in the context of knowing that they will be a party to a civil lawsuit whether or not they bring civil claims of their own. Possible Forums The traffic offense would probably be resolved in one court. The criminal charges against the person making the threats would be resolved in another court. The criminal charges against the person who hit the car door would be resolved probably in the same court but in a different case, possibly with a different judge. The civil claims would be resolved in yet another court, probably with a different judge, although probably in a single case with the first person to make it to court as the Plaintiff and the other party as a Defendant bringing counterclaims against the Plaintiff. The civil claims might also involve other parties (e.g. the owner of the vehicles in question if not identical to the persons driving the cars at the time of the incidents). Issue Preclusion Some final decisions on the merits in some cases would resolve the outcome of other cases as a matter of law, other final determinations in some cases would not be binding on the other cases as a matter of law because burdens of proof are different, or the legal issue evaluated is not identical, or because other rules (like a rule against a traffic court decision resulting in a binding determination on civil liability for negligence) would apply. The exact rules are rather arcane and there are quite a few permutations of how it come up, but it is important to be aware that these kinds of rules are out there, exist, and would have to be analyzed by the parties as a matter of litigation tactics. Even The &quot;Legal Issues&quot; Are Fact Intensive Inquiries Almost all of the legal theories implicated above involve broad legal standards in which a lot of the substantive question of what is or is not legal is delegated to the finder of fact in a manner that cannot be reviewed on appeal. For example, in a negligence case related to damage to an automobile, even if there is a videotape and there is 100% agreement on precisely what happened, whether that conduct constitutes &quot;negligence&quot; that breaches the duty of care owed by a reasonable person to the general public to protect them from harm, is legally considered a &quot;question of fact&quot; to be determined by a judge on a case by case basis, rather than a &quot;question of law&quot; which will always have the same outcome and is subject to review by an appellate court if the judge gets it wrong. A similar &quot;reasonable person&quot; standard which must be resolved with a highly fact intensive inquiry that could be resolved more than one way by two different judges or juries hearing precisely the same facts and finding the same witnesses and evidence to be credible in exactly the same way, with both upheld on appeal, applies to the self-defense legal theory. This self-defense issue could also conceivably, based upon the order in which cases were tried and their resolution, be resolved one way in a criminal case and a different way in a civil case between the parties. In the same vein, when a threat is imminent is a highly subjective determination that could be resolved in a &quot;legally correct&quot; way that is not subject to being overturned on appeal on precisely the same facts, with precisely the same determinations as to credibility and weight of the evidence, by two different judges or juries. Again, the substantive question of whether particular conduct is or is not illegal is a &quot;question of fact&quot; that can't be resolved in the absence of a trial on the merits in a particular case before a particular finder of fact. Bottom Line The facts provided in the question aren't sufficiently detailed to provide a definitely correct answer to this question. Indeed, the nature of the facts is such that even an perfectly detailed factual statement regarding what happened might not be enough to definitively determine who has civil liability to whom, and to determine what charges each defendant is guilty of. Different judges and jurors could reasonably come to different legally correct conclusions in a case like this one when faced with precisely the same facts and resolving all issues of credibility and the weight of the evidence in precisely the same way. This difficulty is compounded by the fact that the same facts would be analyzed with respect to different legal theory analysis in different forums by different people, when there is not, as a general rule (although there is in some cases) any mechanism for compelling those decisions to be made consistently on outcome determinative evaluations of the same facts regarding what was reasonable for the parties to do under the circumstances. The notion that a judge is just an umpire, and that every competent judge acting in good faith will always resolve a case presenting the same facts in the same way is a myth. This simply isn't true, even in the U.K. where the judiciary is (as a consequence of how the system for appointment and retention of judges is designed) not nearly as partisan and politicized as it is in the United States. The outcomes of even fairly simple cases in many cases, like the one in this question, are intrinsically and irreducibly uncertain in common law legal systems. The range of possible outcomes from a best case scenario to a worst case scenario, for each party in this fact pattern, is very wide. A desire to tame the myriad uncertainties involved for all parties, and the desire to avoid multiple time consuming and uncertain court proceedings arising out of the same incident, is one of the reasons that it is very common for civil lawsuits to settle out of court without a trial, and for criminal cases to be resolved by an agreement of the prosecution and the defense (sometimes reached even before charges are filed).
Yes, why not? It happens all the time. Usually the witness will just say, "I am not sure" or "I don't remember, exactly". Also, if Bob is the only witness, how would anyone prove that he was committing "perjury"? In the case of an uncooperative or dissimulating witness, Judges sometimes can hold them in contempt of court, but it is pretty rare. In general, the court has to find "beyond a reasonable doubt" that the witness is refusing to testify honestly. (See "Federal Grand Jury Practice and Procedure" by Paul Diamond) It depends very much on the situation. Note that just trying to act "drunk" would not be a good idea, because that is contempt of court.
In an adversarial legal system, the parties are responsible for framing the issues in dispute and adducing relevant evidence. The parties, and perhaps more importantly their lawyers, also have an obligation of candour to the court. Courts routinely accept unchallenged assertions because there are serious consequences for misleading the court, and the opponent (rather than the court which should remain neutral) is in the best position to investigate and prove any suspected dishonesty. It is a matter for the party commencing proceedings (plaintiff or prosecutor) to decide how the parties will be named. People often change their names, and may use multiple spellings. It is not uncommon for typographical or other errors to appear. Generally, it is in the interest of at least one party to name the parties &quot;correctly,&quot; ie. consistently with other government records that will be used to enforce any judgment, but a person's name is ultimately a formal matter that can be corrected if necessary. In cases of uncertainty, aliases can be specified, as occurred in Microsoft v McDonald (aka Gary Webb) [2006] EWHC 3410 (Ch). A person who is genuinely known by an alias (ie. the use of the alias is not part of an attempt to mislead the court) should use their &quot;real&quot; name in court, but could potentially conduct litigation using the alias without anybody noticing. However, court proceedings are public and this would not necessarily protect the person's identity. To achieve this, an anonymity order under CPR 39.2 is required, as explained in XXX v Camden London Borough Council [2020] EWCA Civ 1468 [13]–[22].
Here's what one recent law review article says: While the privilege against self-incrimination bars compelling communications or testimony, compulsion that makes the suspect the source of physical evidence does not. Given that biometric authentication is merely a scan of physical traits that are compared to previously stored information, one can argue that compelled biometric authentication is not barred by the self-incrimination privilege. Indeed, the Supreme Court has repeatedly held that compelling an accused to demonstrate physical characteristics for identification purposes does not qualify as compelled self-incrimination because it is not testimonial in nature. Likewise, if an accused was compelled to place his finger on his laptop's fingerprint reader, or have his face scanned with his phone's facial recognition software, the physical characteristics would have been used for identification purposes and would likely not be considered "testimonial in nature" such that the scan would violate the self-incrimination privilege. Erin M. Sales, The "Biometric Revolution": An Erosion of the Fifth Amendment Privilege to Be Free from Self-Incrimination, 69 U. Miami L. Rev. 193, 222 (2014) (citations omitted).
By producing sufficient evidence at trial. In this case, the most likely sources of evidence would either be eye witnesses (if someone witnessed the forgery) or expert testimony (i.e., handwriting experts). Any experts would have done an analysis and would testify about the results of their analysis. Any eye witnesses would testify to what they personally observed. Judges are not handwriting experts. They don't evaluate signatures. Judges are law experts. They evaluate evidence. Sworn testimony (subject to cross-examination) by a qualified handwriting expert stating so would be evidence of a forged signature. The handwriting expert would conduct all the necessary analysis, then provide a conclusion and their testimony in exchange for a fee. Also, patterns of deceptive conduct (that can be found during discovery) could be introduced as evidence to impeach the credibility of the testimony of any witness (including your counterparty). I am not an attorney. I am not your attorney. Please do not do anything based on anything I have written because I really don't know what I am talking about. I'm just stumbling around in the dark like everybody else. If you need help with a case, please hire a real attorney and even offer to pay them for their time and expertise.
This would be illegal in Australia (Criminal Code Act 1995 part 10.7: any unauthorised impairment of electronic communication to or from a computer), the US (Computer Fraud and Abuse Act) and any other jurisdiction that I can think of. There is no exception allowing vigilante action in case a person has a reasonable belief that the material on a website is offensive or illegal. In general, the law does not allow immunization against criminal prosecution in case the victim of an attack is himself a criminal. Only the government has the right to punish criminals.