NCIS calls for "adverse inference" on failure to decrypt

[Caspar Bowden]

> -----Original Message-----
> From: owner-ukcrypto@maillist.ox.ac.uk
> [mailto:owner-ukcrypto@maillist.ox.ac.uk]On Behalf Of Yaman Akdeniz

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

>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.

Thanks Yaman, I did not know of this.

How could this be clarified ? If a Minister set out the intention in the
E-Commerce Bill debate, would that suffice ?

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