Burden of Proof

[Nicholas Bohm]

David Swarbrick wrote:

>No. The prosecution prove that a notice was properly required and
>served, and, according to circumstances, that the key or other
>information was not supplied. When they have done that, it is over to
>the defence to establish that a defence under the section exists - ie
>perhaps to show that they were unable to decrypt - or de-protect the
>information.

I agree that this is what clause 12 of the Bill does.

>>But the burden of proof is still on the prosecution to show that the
>accused
>>did not in fact make a confession. Fabulous legal engineering, full marks
>>for ingenuity for the Home Office draftsmen, now can we return from Planet
>>Kafka...
>
>I think we will never get back.
>
>The availability of mass encryption in a world of mass communication
>puts the seal on a fundamental shift in the balance between the state
>and the individual.
>
>The more fundamental, the more extreme will be the measures required to
>try to recover what is felt to be lost ground. The fact that these
>proposals are so egregious and offensive only shows the depth of fear of
>a government of the privacy of its citizens.
>
>It is not a lot more complicated, but the fear is real, and these
>measures will not be substantially defeated without an acceptance in
>high office that this shift in the fault lines has already happened.

But I am less pessimistic than David about an attack based on the European
Convention on Human Rights and its insistence on the presumption of innocence.

For example, in Attorney General of Hong Kong v Lee Kwong-Kut [1993] 3
W.L.R. 329 the Privy Council effectively held that where a provision placed
the burden of refuting guilt on the defendant, and reduced the burden on
the Crown to that of proving mere formalities, the provision was
inconsistent with the presumption of innocence.  This sounds exactly like
clause 12 to me.

In general, it is only justifiable to place the burden of proof of a
defence on the accused where that burden is straighforward to discharge and
where it is impracticable for the prosecution to discharge the burden of
negativing the defence.  (Example:  burden on driver - accused of being
uninsured - to prove he was insured to drive is easy to discharge, and very
tedious for prosecution to negative.)

Clause 12 plainly fails that test hopelessly, and it also fails even a
minimalist statement of that proposition, in which the only requirement for
justifying such a reversal is that the burden is heavier for the
prosecution than for the defence.  The obvious reason is that the burden on
the accused is manifestly impossible.

Regards,

Nicholas Bohm

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