EU Crypto Free Trade Area

[Nicholas Bohm]

At 13:00 21/03/1998 -0000, Brian Gladman <gladman@seven77.demon.co.uk> wrote:
>-----Original Message-----
>From: Nicholas Bohm <nbohm@ernest.net>
>To: ukcrypto@maillist.ox.ac.uk <ukcrypto@maillist.ox.ac.uk>
>Date: 21 March 1998 12:30
>Subject: Re: EU Crypto Free Trade Area
>
>>At 09:25 21/03/1998 -0000, Brian Gladman <gladman@seven77.demon.co.uk>
>wrote:
>>
>>[snip]
>>
>>>Not being a lawyer, I don't know the significance in the courts of a
>>>situation where the authorities are seen, over a long period, not to
>>>enforce law.  I would certainly be interested to hear from any lawyers
on the
>>>list on what might happen in court if someone is now singled out for
>>>prosecution
>>>when so many other openly documented breaches of the regulations have been
>>>ignored.  I would have at least hoped that the courts would ask themselves
>>>what made the case before them so special.
>>
>>The existence of unprosecuted crimes does not entitle prosecuted criminals
>>to an acquittal.  (Think about speeding offences.)  This remains the case
>>where the prosecutions are selective on objectionable grounds (for example,
>>street sellers of conventional newspapers unmolested, street sellers of
>>politically controversial newspapers moved on or prosecuted for
>obstructions).
>>
>>If you are VERY lucky with your judge, you might be able to bring in issues
>>of this kind in support of a plea in mitigation of sentence.  In an
>>outrageous case, you might get a sentence consisting of an absolute
>>discharge (i.e. no penalty at all), by way of two fingers to the
>prosecutor.
>
>Thanks Nicholas, I was hoping that 'the law is not an ass' but it seems that
>it might be!
>
>The speeding offence analogy does not quite fit my model since there are
>many prosecutions for speeding and no evidence that the authorities turn a
>blind eye to it.  In the case of the crypto export laws there is long term
>evidence of no action by the authorities in the face of a number of well
>documented exports.  So my interest is in a situation where:
>
>* a law has been on the books for many years
>
>* it has never ever been used to mount a prosecution
>
>* despite the fact that it has been visibly broken many times during this
>long period
>
>I suspect that your answer is still valid but it would be a first use of the
>law in question and it might be seen as a precedent.  I hence wondered
>whether, in such a situation, some wider issues might be allowed to carry
>weight.

I accept the feebleness of the speeding analogy, although I suspect that it
reflects how a court would in fact reason.  I don't think the points you
emphasise would make any difference in principle (i.e. to the issue of
guilt or innocence; they would help on the mitigation).  

	Regards,

		Nicholas Bohm

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