NCIS calls for "adverse inference" on failure to decrypt

[Yaman Akdeniz]

> "...Controversially, Abbott called for high penalties under the
> planned new decryption law. If a suspect refused to hand over the
> codes to unlock files that had been seized on a raid, the court
> "should be able to draw an adverse inference", he said. " Guardian,
> 24/6/99,
> http://www.newsunlimited.co.uk/online/story/0,3605,60587,00.html
> 
> * * * * * *
> Loathe to quote myself, but...
> 
> "The Home Office plans to introduce legislation to allow keys to be
> subpoenaed under warrant, whether covertly from a service provider
> operating key-recovery, or from the end-user, which will raise
> difficult questions. What will constitute prima facie grounds for
> issue of a warrant, to recover evidence that by definition is
> unknown? Suppose a suspect has genuinely lost their key? Will a
> judge be able to draw adverse inference from a suspect's refusal (or
> inability) to produce a key to unlock information which the
> prosecution believes to be incriminating? In any event, given the
> likely proliferation of "camouflage" techniques (known as
> steganography), the prosecution may be unable to demonstrate the
> existence of any encrypted data at all."

Abbot is referring to something that I suggested when the initial 
June 1996 White Paper was published:

In reference to Labour Party manifesto: It seems that Labour Party 
intends to penalise a refusal to comply with a demand to decrypt 
under judicial warrant.(15) Even if this proposal is never enacted, 
the courts may draw inferences under the new sections 34-37 of the 
Criminal Justice and Public Order Act 1994 because of the silence of 
the defendants. Lord Slynn in Murray v DPP 97 Cr. App. R. 151 stated 
that: 

     "If aspects of the evidence taken alone or in combination with
     other facts clearly call for an explanation which the accused
     ought to be in a position to give, if an explanation exists, then
     a failure to give any explanation may as a matter of common sense
     allow the drawing of an inference that there is no explanation
     and that the accused is guilty." (at 160) 

Not providing an encryption key, in the witness box may be similar
to not providing a secret code to a safe and may result in judges
commenting on the accused's behaviour and juries drawing inferences
under the new controversial 1994 Act. 

>From `UK Government Encryption Policy', [1997] Web Journal of Current 
Legal Issues 1 (February), at http://www.ncl.ac.uk/~nlawwww/1997/issue1/akdeniz1.html

We did (as CR&CL) put forward the same argument in our Select 
Committee submission 
(http://www.cyber-rights.org/reports/crcl-hc.htm) and the committee 
did refer to this possibility in their report at paragraph 97 (see http://www.parliament.the-stationery-office.co.uk/pa/cm199899/cmselect
/cmtrdind/187/18713.htm) and Abbot is probably referring to that 
issue.

However, the above mentioned provisions of the CJPOA 1994 may be 
challenged under the ECHR and under the Human Rights Act and there is 
not a single view on this issue within the academia and the debate is 
open. In any case section 38 of the same Act stipulates that a 
finding of a case to answer shall not be based solely on such an 
inference.

Yaman


~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Mr. Yaman Akdeniz,
Director, Cyber-Rights & Cyber-Liberties (UK)
URL: http://www.cyber-rights.org
E-mail: lawya@cyber-rights.org

Read the CR&CL (UK) Reports at:
http://www.cyber-rights.org/reports/ 
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~