Home Office response on Burden of Proof

[Philip Rowlands]

> 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.

I think a discussion on "burden of proof" is needed. We are at odds with
the Home Office, since we are using the phrase to mean different things.

What they mean, and the traditional use of the phrase, is "burden of proof
that an offence has been committed".

What we mean is "burden of proof that a person was unable to comply with a
decryption notice".

However, they should realise this, and not try to hide behind the
traditional interpretation.

If we consider an offence such as speeding, or assault, then the offence
is committed by doing something. (I expect there is a latin legal phrase
which describes this :) )

The crucial difference in the Clause 12 offence is that one can offend by
*not* doing something. In this cause the burden of proof that an offence
has been committed is trivial, and the Home Office should not be touting
this as protection that "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". A person is immediately provably guilty - he has not done
anything (which is a Clause 12 offence).

They state that "In common with many other statutory offences, the burden
to establish the exception is on the accused". Again, for traditional
"offence by action" crimes (e.g. murder), the burden to establish the
exception (e.g. self defence) is reasonable. But in "offence by lack of
action" crimes, specifically clause 12, the burden to establish the
exception *should not* fall upon the accused, particularly where no
practical way to establish the exception (don't possess the key) exists.

The Organised and International Crime Directorate's reply leads me to
believe that they don't appreciate the above distinctions between various
proofs and types of offence, or that they don't care about it. Or I have
made a mistake in my logic, for which I would be grateful to anyone who
points it out to me.


Phil