Expert Witness Journal Issue 65 February 2026 - Flipbook - Page 87
The Court of Appeal’s wide de昀椀nition of in game
digital assets as property in the criminal context is
of distinct interest. We look forward, for instance,
to the 昀椀rst prosecution for theft of a player who
beheads another player with his longsword or
incinerates them with a magic 昀椀reball and then
steals all their gold. But looking purely at the
implications for civil law, this shows the progressive
approach of the English Courts to dealing with
digital assets. Treating digital assets as ideational
objects constituted by the entire ecosystem of data,
software and users is a powerful concept that allows
principled and consistent development of the law.
Further cases are likely to explore the minimum
degree of permanence needed to constitute a digital
asset as property in private law.
The Court concluded that gold pieces could exhibit
the attribute of ‘rivalrousness’ – that is, use and
consumption of a gold piece was inconsistent with
somebody else using and consuming it. Jagex had
the ability to delete any gold piece at any time.
The Court pointed out that this was relevant to
permanence, but not rivalrousness. An object might
only exist for a short time but be rivalrous during
the term of its existence. The Court adopted the Law
Commission’s example of the melting ice lolly which
can only be consumed before its impending ‘runny
end’ (as the Law Commission rather poetically puts
it in its Consultation Paper, para. 10.110).
The critical quality that the Court considered was
permanence. To be considered property, an object
must have a su昀케cient degree of permanence or
stability. This is the quality that the Law Commission
assumes that in game objects will often be lacking.
Here, the Court held that it was su昀케cient that the
gold pieces had “a small degree” of permanence,
even if Jagex could unilaterally delete them at any
time. They drew the analogy with coins, which
could be withdrawn as legal tender at any time and
would then cease to exist as currency (although the
physical object would remain).
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Key takeaways
The approach of the Court to permanence is
highly signi昀椀cant in placing more weight on real
world practice than it does on the design and
implementation of the system. Whether a digital
asset is permanent usually starts from an analysis
of the system that constitutes that asset: whether
it is distributed, cryptographically secure and
independent of persons or legal systems, so that no
individual person or group has the power unilaterally
to destroy it. Here, Jagex could destroy the gold
pieces at any time. The system itself exhibited little
permanence. But the Court focused instead on the
practical aspect: that the game had persisted over
time with users prepared to import a high degree of
value on the objects contained within it.
0161 834 0017
Mr. Mike Hart
Senior Lecturer &
Honorary Consultant Neurosurgeon
BSc (Hons), MBChB, AHEA, PhD, FRCSEd (Neuro.surg), FEBNS
Mr. Mike Hart performs work as an expert witness with Eopinex. His aim is to
provide specialist information in a clear and timely manner, producing the highest
standard of court-compliant reports. He actively participates in regular formal
training delivered by certified providers to remain up to date, in line with guidance
from the Academy of Medical Royal Colleges (2019).
His specialist interests encompass the full spectrum of functional neurosurgery,
including movement disorders, pain, and epilepsy. He also undertakes general
neurosurgery—such as the management of hydrocephalus, infection, and
traumatic brain injury—as well as spinal surgery, including decompression,
discectomy, and cauda equina syndrome.
This approach is likely to lead to an expansive
view of which digital assets constitute property. In
particular, closed, permissioned systems may well
satisfy the requirement for permanence, even where
a single person within a permissioned system could
unilaterally create or destroy assets. Many uses of
blockchain technology within 昀椀nancial markets
involve permissioned blockchain ledgers. Designers
of these systems must now upgrade the likelihood
that objects created within these systems attract
property rights. This will a昀昀ect the web of contracts
that underlie these systems and the process for
transfer of and creation of security over the digital
assets within them.
EXPERT WITNESS JOURNAL
Areas of Expertise
•
General neurosurgery including traumatic brain injury, infection,
hydrocephalus).
•
Spinal neurosurgery including back pain, sciatica, lumbar disc disease,
lumbar stenosis, whiplash, neck pain, cervical disc disease, cervical
myelopathy.
•
Functional neurosurgery; movement disorders; Parkinson's disease; tremor;
dystonia; pain; spinal cord stimulation; epilepsy; vagal nerve stimulation;
spasticity; intrathecal drug delivery; peripheral nerve stimulation.
Email: info@mrmikehart.com
Website: www.mrmikehart.com
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FEBRUARY 2026
