Court of Star Chamber (was: Is the Home Office right ?)

[Caspar Bowden]

> [mailto:owner-ukcrypto@maillist.ox.ac.uk]On Behalf Of Alistair Kelman
> ....there is a bit of a difference here. A person who
> is required to decrypt a message or whose silence in the face of
> accusations is construed as being an admission of guilt is not the
> same as a false confession.

I'm not so sure. I've been trying to think of precedents or parallels for
decryption powers, and I think perhaps there is rather an old one, (which
interesting was historically relevant to the creation of the US 5th
Amendment)

The Right To Silence: An Examination Of The Issues, Scrutiny Of Acts And
Regulations Committee, Parliament of Victoria
(http://www.parliament.vic.gov.au/sarc/rts/rts98.html)

"In particular, the right [of silence] and the privilege [against
self-incrimination] are commonly said to have originated in the abolition of
the Court of Star Chamber....these courts were highly unpopular, largely
because they were used to suppress religious and political dissent. But
their procedures were also seen as oppressive, with the judges of both
courts having the power to interrogate an accused person on oath. This meant
that an accused person could be compelled by threat of punishment to swear
an oath to tell the truth, and could then be interrogated by the court in
order to determine whether or not he or she had committed an offence.

This exposed the accused to what the High Court has described as `the "cruel
trilemma" of punishment for refusal to testify, punishment for truthful
testimony or perjury (and the consequential possibility of punishment)'.
...
Perhaps the most objectionable aspect of the procedure was that the accused
could be interrogated on oath before any charges were laid, and without
having even been informed of what it was that he or she was alleged to have
done. Interrogation on oath could thus be used as a `fishing expedition', to
try and produce evidence of some as yet undisclosed and unidentified
criminality".

It does appear that a S.10 notice could be served (under 10.1.c/d) without
the authorities giving any indication about the suspected offence, or
justication as relevant to a criminal investigation.

We should consider the self-incrimination question under English law. What
exactly would 10.1.c/d allow in terms of obtaining data without PACE/IOCA
warrants? Under the Schedules, it does not appear that the authorities have
to prove any relevance to criminality in order to obtain a S.10
authroisation (but it must be obtained from a judge or Sec.State - details
fincicky, but vague).

Seems to me that we do have a "cruel trilemma"....

See also:

Greg S. Sergienko, Self Incrimination and Cryptographic Keys, 2 RICH. J.L. &
TECH. 1 (1996) <http://www.richmond.edu/jolt/v2i1/sergienko.html>.

Crypto and Self-Incrimination FAQ, Version 1.1 - 13 August 1999, 1999
Bert-Jaap Koops, http://cwis.kub.nl/~frw/people/koops/casi-faq.htm#4.5.

"….In my opinion the privileged avoidance of self-incrimination extends
further than answers which themselves will support a conviction. It must
logically embrace all answers which would furnish a link in the chain of
evidence needed to prosecute a conviction. "
CASE OF SAUNDERS v. THE UNITED KINGDOM, 00019187/91, CONCURRING OPINION OF
JUDGE WALSH, 17/12/1996
EUROPEAN COURT OF HUMAN RIGHTS,
http://www.dhcour.coe.fr/eng/JUDGMENTS/SAUNDERS.html

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