Home Office response on Burden of Proof

[Nicholas Bohm]

At 09:44 PM 8/3/1999 +0100, Caspar Bowden wrote:

[snip]

>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
>
[snip]

>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.

This is a welcome assurance, or it would be if one thought its author
understood what it meant.

Unless otherwise provided by statute, the Crown must prove all the elements
of a defence beyond reasonable doubt.  That burden extends to negativing
available defences where they have been credibly raised to an extent
justifying them being left to a jury.

Take the example of the defence of self-defence, applicable to crimes of
violence.  If the accused credibly claims to have acted in self-defence, it
is for the Crown to prove beyond reasonable doubt that he did not act in
self-defence.  The accused is not required to prove that he did act in
self-defence, either beyond reasonable doubt or even on the balance of
probabilities.

To require the accused to prove a defence therefore reverses the burden of
proof.  That is what clause 12 does.

It is not always unreasonable to reverse the burden of proof.  Take the
example of a charge of driving while uninsured.  If the accused is in fact
insured, it is very easy for him to prove it.  If he is not, it is
impracticable for the Crown to produce evidence from every possible insurer
and broker to the effect that each of them did not cover the accused on the
relevant occasion.  It is reasonable to require the accused to prove he was
insured.

But the offence created by clause 12 suffers from two serious flaws.  

The first is that it can be proved without any evidence whatever that the
accused is in possession of a key to protected information, since all that
must be proved is that a notice was given under clause 10 to the effect
that it **appeared** to the giver of the notice that the accused was in
possession of a key to protected information.  So the accused can be
convicted on the basis of what the police think.

The second flaw (or, if you like, a second aspect of the same flaw) is that
possession of the key, instead of being an element of the offence that must
be proved by the Crown, is turned as if by by sleight of hand into a
defence which must be disproved by the accused.

Even if it is right to treat it as a defence (which it is not), is it
reasonable in the way it is for driving while uninsured?

Clearly not.  There will be cases where possession of the key can be proved
by the Crown quite easily (e.g. where the accused has responded to
encrypted messages in a way that proves he can decrypt them), as well as
those where there is no clear evidence.  But where the accused is not in
possession of the key, it is manifestly impossible for him to prove this by
anything beyond his own assertion.  The case has nothing remotely in common
with those where reversing the burden has been regarded as justified.

Analogies with giving DNA or fingerprints are absurd.  We all have DNA; and
those of us who have no fingerprints can prove this with the greatest of ease.

I'm sure that all this is evident to subscribers to this list, but I felt
that it ought to be laid out at a little length in case the point otherwise
goes by default.

Regards,

Nicholas Bohm

Salkyns, Great Canfield,
Takeley, Bishop's Stortford CM22 6SX, UK

Phone		01279 871272	(+44 1279 871272)
Fax		01279 870215	(+44 1279 870215)
Mobile   	0860 636749  	(+44 860 636749)

PGP RSA 1024 bit public key ID: 0x08340015.  Fingerprint:
9E 15 FB 2A 54 96 24 37  98 A2 E0 D1 34 13 48 07
PGP DSS/DH 1024/3072 public key ID: 0x899DD7FF.  Fingerprint:
5248 1320 B42E 84FC 1E8B  A9E6 0912 AE66 899D D7FF