Home Office response on Burden of Proof

[Caspar Bowden]

To:  ukcrypto
Bcc: Organised and International Crime Directorate, Home Office

3rd August 1999

E-COMMS BILL: S.12 BURDEN OF PROOF
==================================

Dear Richard,

thank you for your response (copied below). I'm afraid that it doesn't get
us any further with the substantive issue, which has been asked about
repeatedly on the ukcrypto e-mail list, namely:

(1) How can a person accused of failing to comply with a notice "show" -
s.12(2)- that they do NOT have a key?

This is why the burden of proof is reversed - instead of the prosecution
having to show (beyond reasonable doubt) that the defendant is wilfully
withholding a key, it is for the defence to prove (somehow - nobody seems to
know how) that they do NOT possess a key. I am sorry to have to labour this
point, but for you to argue that the presumption of innocence is maintained
seems reckless casuistry.

The Home Office must have an idea what it would consider satisfactory proof
of non-possession in typical cases. These are not covered by the Explanatory
Notes, but further clarification of the Government's intentions would be
most helpful in drafting responses to the consultation. I think people are
looking for a practical answer, rather than a general legal statement.

(2) Will the Home Office issue in good time before the close of consultation
clear guidance on adequate defences in a variety of technical circumstances?

In the March 99 consultation paper, you explicitly drew an analogy to other
"statutory obligations for the purpose of maintaining the effectiveness of
criminal investigations", namely "requirements to provide fingerprint and
DNA samples, or to produce documentary evidence of vehicle insurance cover"
(para.70). But there are salient logical differences :
(i) not having vehicle insurance cover is indisputably criminal, but not
having a decryption key is not (intended) of itself to be criminalised
behaviour.
(ii) Everybody has DNA and fingerprints, so the logical impossibility of
proving a negative doesn't arise.
I am sorry to have to labour these points, but it does appear that you are
intentionally obfuscating this logic in your reply and public statements.

(3) Do you now accept that it there is no analogy between requiring
production of a decryption key and a requirement to provide a DNA sample -
that this argument is specious?

You also correctly point out that "showing" (however this is to be done)
non-possession of the key is not of itself sufficient for the defence to
apply; it is also necessary for the defendant to give "as much information
as he had about how the key could be obtained; or that he did what was
required of him as soon as was reasonably practicable."

I would point out that the wording of 12(2)b - "such information in his
possession as was required by that person to *enable* possession of the key
to be obtained" (my emphasis) - suggests a materially stronger meaning,
namely that the information volunteered must actually *enable* possession of
the key to be obtained, rather than merely being as helpful as possible.

(4) Please would you comment on the construction to placed on the word
"enable"? Does it mean as much information as possible, or does it mean
sufficient to allow possession to be obtained? I hope the significance is
clear.

In our telephone conversation, you also referred to a prosecution "not being
able to 'get off the ground' unless 'wrongdoing'" had occurred. I notice you
do not make reference to this idea in your letter.

(5) Do you now accept that a s.10 decryption notice can be served on persons
not suspected or accused of any offence, and therefore it is not the case
that only persons suspected of 'wrongdoing' would be liable for prosecution
?

(6) If so, would you kindly instruct your Press Office accordingly, since
this was not the impression given when comments were sought by journalists
on Fri 23rd July ? [Copy sent to those journalists]

(7) Lastly, is it your intention to publish drafts of the Code of Practice
and Tribunal rules of procedure before Oct 8th ?

Sincerely
--
Caspar Bowden                    http://www.fipr.org
Director, Foundation for Information Policy Research
Tel: +44(0)171 354 2333      Fax: +44(0)171 827 6534


HOME OFFICE
Organised and International Crime Directorate
50 Queen Anne's Gate, London, SW1H 9AT

Caspar Bowden Esq
Foundation for Information Policy Research
9 Stavordale Road
London N5 1NE							3 August 1999

(by email)

Dear Caspar,

ELECTRONIC COMMUNICATIONS BILL

We spoke last week about Clause 12 of the draft Electronic Communications
Bill which creates a new offence of failure to comply with the terms of a
written notice served under Clause 10 of the draft Bill.  Your press
statement as posted on the Foundation for Information Policy Research (FIPR)
website also refers.  You asked for clarification of our position on the
proposed offence.

To reiterate the points made in the explanatory notes published along with
the draft Bill on 23 July, Clause 12 makes it an offence to fail to comply
with a notice given under Clause 10.  It allows a *defence* (my emphasis) to
a person who shows that he did not have the key to the information in
question (or, where appropriate, the information itself) but gave as much
information as he had about how the key could be obtained; or that he did
what was required of him as soon as was reasonably practicable.  In common
with many other statutory offences, the burden to establish the exception is
on the accused.

But the prosecution will need to prove the offence beyond all reasonable
doubt in all cases.  Our belief, therefore, is that we have not reversed the
burden of proof with this Clause.  A person charged with an offence under
Clause 12, as with any other offence, remains innocent until he is proved
guilty by a court of law.

I can state that in any case, it is not our intention to reverse the burden
of proof with this proposed offence.  We would welcome a precise explanation
as to why you believe that we have done so with Clause 12 of the Bill, as
drafted.  I can assure you that your comments will be fully considered as
part of the consultation process on the detail of the draft Bill.

-- ends