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Within Motive and Law

How Much Should a Hacker's Motive Matter?

Curiosity may reduce blame when harm is limited, but repeated access, concealment or disruption can outweigh the absence of profit.

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On this page

  • How prosecutors weigh seriousness and public interest
  • Mitigating features in curiosity driven cases
  • Why non prosecution does not mean legal approval

Introduction

In curiosity-driven hacking cases such as Gary McKinnon’s, motive can influence how prosecutors exercise discretion and how courts assess punishment, but it rarely determines whether a crime has been committed. Unauthorised access remains unlawful even if the defendant claims to have been searching for evidence of UFOs rather than money, espionage material or commercial secrets. The practical legal question is therefore not whether curiosity excuses the conduct, but how far it affects charging decisions, the public-interest assessment and the eventual sentence. Courts and prosecutors generally distinguish between a person motivated by fascination and one motivated by profit or sabotage, yet they also examine the scale of the intrusion, the sensitivity of the systems targeted, the persistence of the conduct and any resulting harm.[Crown Prosecution Service]cps.gov.ukCrown Prosecution Service Computer Misuse Act | The Crown Prosecution ServiceCrown Prosecution ServiceComputer Misuse Act | The Crown Prosecution ServiceAugust 3, 2023…Published: August 3, 2023

Charging and Sentence illustration 1

How prosecutors weigh seriousness and the public interest

In England and Wales, prosecutors do not decide cases solely by asking whether an offence can be proved. Under the Code for Crown Prosecutors, they first consider whether there is sufficient evidence and then whether prosecution is required in the public interest. A prosecution will usually proceed if the evidential test is met, but prosecutors are expected to weigh factors both for and against bringing criminal proceedings.[Crown Prosecution Service]cps.gov.ukOpen source on cps.gov.uk.

Within Computer Misuse Act cases, motive is one factor among many rather than a decisive rule. Crown Prosecution Service guidance identifies considerations including:

  • whether the offender sought financial gain;
  • the level of sophistication and any efforts to conceal identity;
  • the scale of financial, reputational or operational harm;
  • the vulnerability of the victim;
  • the defendant’s age, maturity and mental health where relevant.[Crown Prosecution Service]cps.gov.ukCrown Prosecution Service Computer Misuse Act | The Crown Prosecution ServiceCrown Prosecution ServiceComputer Misuse Act | The Crown Prosecution ServiceAugust 3, 2023…Published: August 3, 2023

A curiosity-driven hacker who neither sold information nor demanded money may therefore lack an aggravating feature that would exist in fraud or ransomware cases. However, prosecutors may still regard prosecution as strongly justified where the target is a defence network, critical infrastructure or another sensitive system, or where the intrusion is prolonged and deliberate. The absence of profit does not outweigh substantial security risks created by repeated unauthorised access.[Crown Prosecution Service]cps.gov.ukCrown Prosecution Service Computer Misuse Act | The Crown Prosecution ServiceCrown Prosecution ServiceComputer Misuse Act | The Crown Prosecution ServiceAugust 3, 2023…Published: August 3, 2023

How we make a decision in each case - The Code for Crown Prosecutors

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Why curiosity may mitigate punishment without preventing conviction

Courts generally distinguish between intent, which forms part of the legal offence, and motive, which explains why the defendant acted. Once intentional unauthorised access has been proved, sentencing becomes the stage at which motive can carry greater weight.

A defendant motivated by curiosity may receive some mitigation if the evidence shows that they:

  • sought no financial benefit;
  • did not publish or exploit stolen information;
  • caused limited or no lasting damage;
  • admitted the conduct and cooperated with investigators;
  • demonstrated genuine remorse.

Conversely, mitigation becomes less persuasive where curiosity is accompanied by repeated intrusion, privilege escalation, copying of sensitive data, attempts to avoid detection or disruption of computer systems. Courts focus on what the defendant actually did rather than the personal narrative offered afterwards.[Crown Prosecution Service]cps.gov.ukCrown Prosecution Service Computer Misuse Act | The Crown Prosecution ServiceCrown Prosecution ServiceComputer Misuse Act | The Crown Prosecution ServiceAugust 3, 2023…Published: August 3, 2023

The Crown Prosecution Service guidance also highlights previous sentencing decisions in which courts treated planning, persistence, harm to victims, costs of remediation, privacy impacts and wider public interests as major aggravating factors. Motive remained relevant but was assessed alongside these broader indicators of culpability.[Crown Prosecution Service]cps.gov.ukCrown Prosecution Service Computer Misuse Act | The Crown Prosecution ServiceCrown Prosecution ServiceComputer Misuse Act | The Crown Prosecution ServiceAugust 3, 2023…Published: August 3, 2023

Charging and Sentence illustration 2

Gary McKinnon as a case study

Gary McKinnon consistently maintained that he entered United States military and NASA systems because he believed they contained evidence of UFOs, advanced propulsion technology and suppressed energy research. His explanation distinguished him from defendants accused of seeking financial gain or conducting espionage for a foreign government.

That motive influenced public discussion of proportionality far more than it altered the underlying criminal allegations. The United States alleged repeated unauthorised access to numerous defence-related systems over an extended period. The debate surrounding his case therefore centred less on whether curiosity justified the access than on whether extradition and the potential sentence would be proportionate given his personal circumstances and claimed motivation. The eventual decision not to extradite him rested primarily on human-rights and medical considerations rather than any legal conclusion that curiosity excused the offences.[Crown Prosecution Service]cps.gov.ukCrown Prosecution Service Computer Misuse Act | The Crown Prosecution ServiceCrown Prosecution ServiceComputer Misuse Act | The Crown Prosecution ServiceAugust 3, 2023…Published: August 3, 2023

The case illustrates an important distinction. A person who accesses one publicly exposed system out of curiosity may present a very different sentencing picture from someone who systematically explores dozens of protected military computers over many months. Even where both claim intellectual curiosity, persistence and the sensitivity of the targets substantially increase perceived seriousness.

Gary McKinnon: No hacking charges in UK

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Why prosecutors distinguish curiosity from profit but not from responsibility

From a criminal justice perspective, different motives imply different risks to society.

Someone acting for financial gain may present an ongoing risk of organised criminal activity, while someone acting from curiosity may appear less likely to repeat offences for commercial benefit. That distinction can influence charging decisions, plea discussions and sentencing submissions.

However, prosecutors also recognise that curiosity can still produce significant consequences. Defence networks, hospitals, government departments and critical infrastructure depend upon confidentiality, integrity and availability. Unauthorised exploration may expose vulnerabilities, interrupt operations or consume substantial public resources regardless of whether the intruder intended harm. Because these risks arise from the conduct itself, curiosity cannot by itself justify declining prosecution.[Crown Prosecution Service]cps.gov.ukCrown Prosecution Service Computer Misuse Act | The Crown Prosecution ServiceCrown Prosecution ServiceComputer Misuse Act | The Crown Prosecution ServiceAugust 3, 2023…Published: August 3, 2023

Charging and Sentence illustration 3

Occasionally, a curiosity-driven incident may end without prosecution because of evidential weaknesses, youth diversion schemes, proportionality concerns or an assessment that prosecution is not in the public interest. Such outcomes should not be understood as recognising a legal right to investigate computer systems without permission.

The Code for Crown Prosecutors expressly recognises that public-interest decisions depend on the individual facts of each case. A decision not to prosecute one individual does not create a defence for future cases, nor does it alter the legal prohibition on knowingly obtaining unauthorised access to computer systems.[Crown Prosecution Service]cps.gov.ukOpen source on cps.gov.uk.

This distinction is particularly important when considering high-profile cases such as McKinnon’s. Public sympathy, unusual motives or exceptional personal circumstances may influence prosecutorial discretion or sentencing, but they do not convert unauthorised access into authorised research. In practice, the criminal justice system treats motive as an important indicator of blameworthiness and proportionality—not as a substitute for the fundamental requirement that access to protected computer systems must be authorised.

Hacking for UFOs and fighting for his life. Who is Gary McKinnon? | NordVPN

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Endnotes

1. Source: justice.gov
Link:https://www.justice.gov/archive/criminal/cybercrime/press-releases/2002/mckinnonIndict2.htm

2. Source: justice.gov
Link:https://www.justice.gov/archive/criminal/cybercrime/press-releases/2002/mckinnonIndict.htm

3. Source: cps.gov.uk
Title: Crown Prosecution Service Computer Misuse Act | The Crown Prosecution Service
Link:https://www.cps.gov.uk/prosecution-guidance/computer-misuse-act

Source snippet

Crown Prosecution ServiceComputer Misuse Act | The Crown Prosecution ServiceAugust 3, 2023...

Published: August 3, 2023

4. Source: cps.gov.uk
Link:https://www.cps.gov.uk/publication/code-crown-prosecutors

5. Source: cps.gov.uk
Link:https://www.cps.gov.uk/prosecution-guidance/sentencing-ancillary-orders

Source snippet

Ancillary Orders | The Crown Prosecution ServiceJune 29, 2026 — SENTENCING - ANCILLARY ORDERS Updated: 29 Aug 2024; 29 Jun 2026 Prosecuti...

Published: June 29, 2026

6. Source: cps.gov.uk
Title: Referrals, approvals and notifications | The Crown Prosecution Service
Link:https://www.cps.gov.uk/prosecution-guidance/referrals-approvals-and-notifications

Source snippet

April 24, 2026 — REFERRALS, APPROVALS AND NOTIFICATIONS Updated: 31 Jan 2024, 17 Oct 2024, 31 Oct 2024, 5 Nov 2024, 13 Feb 2025, 17 Mar 2...

Published: April 24, 2026

7. Source: cps.gov.uk
Link:https://www.cps.gov.uk/prosecution-guidance/homicide-murder-manslaughter-infanticide-and-causing-or-allowing-death-or

Source snippet

n Prosecution ServiceMarch 10, 2026 — HOMICIDE: MURDER, MANSLAUGHTER, INFANTICIDE AND CAUSING OR ALLOWING THE DEATH OR SERIOUS INJURY OF...

Published: March 10, 2026

8. Source: cps.gov.uk
Title: Public Justice Offences | The Crown Prosecution Service
Link:https://www.cps.gov.uk/prosecution-guidance/public-justice-offences

Source snippet

September 18, 2024 — PUBLIC JUSTICE OFFENCES updated 1 July 2019; revised 18 September 2024 Prosecution Guidance Media, Public Interest a...

Published: September 18, 2024

9. Source: cps.gov.uk
Link:https://www.cps.gov.uk/prosecution-guidance/extradition-uk

Source snippet

From the UK | The Crown Prosecution ServiceOctober 5, 2022 — EXTRADITION - FROM THE UK 05 October 2022 minor updates: 20 Feb 2023; 1 May...

Published: October 5, 2022

10. Source: cps.gov.uk
Link:https://www.cps.gov.uk/prosecution-guidance/cybercrime-prosecution-guidance

Source snippet

prosecution guidance | The Crown Prosecution ServiceMay 1, 2018 — CYBERCRIME - PROSECUTION GUIDANCE 01 May 2018 Updated: 26 Sep 2019; 31...

Published: May 1, 2018

11. Source: GOV.UK
Title: www.gov.uk The nature of online offending
Link:https://www.gov.uk/government/publications/the-nature-of-online-offending

12. Source: GOV.UK
Title: www.gov.uk Gary Mc Kinnon extradition case: Home Secretary’s statement
Link:https://www.gov.uk/government/speeches/gary-mckinnon-extradition-case-home-secretarys-statement

13. Source: GOV.UK
Title: www.gov.uk Latest on Gary [Mc Kinnon case]({{ ‘mc-kinnon-case/’ | relative_url }})
Link:https://www.gov.uk/government/news/latest-on-gary-mckinnon-case

14. Source: copfs.gov.uk
Link:https://www.copfs.gov.uk/publications/prosecution-code/html/

15. Source: copfs.gov.uk
Title: prosecution code
Link:https://www.copfs.gov.uk/publications/prosecution-code/

16. Source: cps.gov.uk
Link:https://www.cps.gov.uk/prosecution-guidance/prosecution-guidance-search?subject_area=2344

17. Source: cps.gov.uk
Link:https://www.cps.gov.uk/prosecution-guidance-library

Additional References

18. Source: youtube.com
Title: How we make a decision in each case
Link:https://www.youtube.com/watch?v=pCDGxTEQmjc

Source snippet

Hacking for UFOs and fighting for his life. Who is Gary McKinnon?...

19. Source: youtube.com
Title: Gary Mc Kinnon: No hacking charges in UK
Link:https://www.youtube.com/watch?v=xAhzZRa2aws

Source snippet

How we make a decision in each case - The Code for Crown Prosecutors...

20. Source: youtube.com
Title: Gary Mc Kinnon wins extradition battle
Link:https://www.youtube.com/watch?v=y4lecD44F5E

Source snippet

What are Pre-Charge Representations to the Crown Prosecution Service?...

21. Source: techcrunch.com
Link:https://techcrunch.com/2009/07/31/should-the-government-jail-the-hacker-that-broke-the-pentagon-or-hire-him/

22. Source: theguardian.com
Link:https://www.theguardian.com/world/2012/oct/16/gary-mckinnon-extradition-key-questions

23. Source: theguardian.com
Link:https://www.theguardian.com/technology/2006/jul/07/news.usnews

24. Source: independent.co.uk
Link:https://www.independent.co.uk/news/science/gary-mckinnon-inside-the-head-of-a-super-hacker-6095677.html

25. Source: theguardian.com
Link:https://www.theguardian.com/technology/2008/jun/16/hacking.internationalcrime

26. Source: youtube.com
Title: Hacking for UFOs and fighting for his life. Who is Gary Mc Kinnon?
Link:https://www.youtube.com/watch?v=OImdnvQx7sQ

Source snippet

Gary McKinnon wins extradition battle...

27. Source: theguardian.com
Title: British hacker faces extradition to US | US news | The Guardian
Link:https://www.theguardian.com/technology/2006/may/10/news.usnews