Home Office response on Burden of Proof

[Donald Ramsbottom]

>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
>?

In any proceedings whether criminal or civil, a third party can be called to
give evidence. This can be in the form of oral evidence on the stand, or
written evidence in the form of records and documents. In the later case a
subpoena ducus tecum is served (as may be  amended in civil cases by the new
Civil procedure rules and by many specific criminal statutes). As there is
no set form for the S10 notice, then this would probably constitute such a
notice. In the civil field there is also a procedure for obtaining a "civil
search warrant" (what until April was known as an "Anton Pillar" order).
This enables a party to an action to search and seize documents (in whatever
form). As it is an order of the court I would submit that it falls into the
category of a S:10 order. This would then allow the solicitor and party in
whose favour the order was made to look at ALL the "protected information".
Failure to provide the  key would then become a matter for S:12 or
alternatively the subject of a contempt action by the issuing judge. The
Home office seems to be ignoring basic discovery procedures in both criminal
and civil matters.

 So far as the burden of proof is concerned Caspar has eloquently put the
same. Additionally, the whole concept of S:12 is worthless, unless the
burden is reversed, or unless certain presumptions are built in, eg "you own
computer X, there are encrypted files on X, ergo you must have the key to
the files on computer X" , but there is no mention of any such presumption.


If you have already proved your case "beyond reasonable doubt" then the key
is not required to prove whatever is alleged. It is merely a data collection
exercise.



Donald Ramsbottom LL.B, BA (Hons).

RAMSBOTTOM & Co. Solicitors

Internet Law & Global Cryptology Law Specialists