RIP 2nd reading

[Philip Rowlands]

I've just read through the Hansard report
(http://www.publications.parliament.uk/pa/cm199900/cmhansrd/cm000306/debtext/00306-06.htm#00306-06_head1)
of the RIP second reading on Monday. When not congratulating each other on
a good debate, some MPs showing evidence of having a clue and not letting
this slip through unchecked. Well to to Casper for the FIPR briefing;
quoted by several MPs.

What still profoundly worries me is the burden of proof issue. It seems
that ministers will not accept that the EC bill, and now RIP reverse the
burden.

To quote Charles Clarke (Home Office Minister): (edited for brevity)
"...there have been accusations that the decryption provisions reverse the
burden of proof... There must be reasonable grounds for believing that a
person... has a key in their possession before use of the decryption power
can be authorised..."

"In that case [of non-compliance], the burden falls on the prosecution to
prove
beyond reasonable doubt that the accused is, or has been, in possession of
a key and that he or she failed to comply with the notice."

"Clause 49(2) creates a defence for an individual who has forgotten ... a
key. It is true that he or she must prove the defence, but they need to do
that only on the balance of probabilities. In other words, he or she must
explain what has happened. It will be for the court to decide whether, on
balance, the person is telling the truth. That seems to be an entirely
reasonable burden to impose on an accused person. There are comparable
provisions in plenty of other statutes."


This is plainly ridiculous; why do successive Ministers (Hewitt, Straw,
Clarke) defend it? Example scenario:

Plod: Decrypt this.
Joe Public: I'm sorry, I sent that document some time ago, using a
password which I've since changed. I can't remember it now.
Plod: Did you ever know the password?
JP: Well of course....
Plod: Are you refusing to comply with my decryption order?
JP: I am unable to comply with your order.
Plod: Aha! I have proved you guilty of a clause 49 offence.

I can't remember the exact quote, but something like this was once posted
to this list: "If an offence is so trivial to 'prove' that it requires no
substantive evidence from the prosecution, then it effectively reverses
the burden of proof onto the defendant."

Who let politicians formulate legislation? The thought that they will
enact a law which could land someone in court having to *prove* they do
not know something scares me.

Also, I do not share the ministers' faith that all is safe, because future
ministers and governments will not respect current ministers' rhetoric.

A topical point; if the European Court ever found that any clause of the
RIP bill was in breach of the ECHR would Jack Straw be branded a liar and
expelled from the party for his written assurance tagged onto the front of
the bill?


Phil