Burden of Proof

[Philip Rowlands]

As this issue is going before the Standing Committee on Tuesday, I thought
I'd recap on what I think is the worst part of this bill. Sorry if this is
getting repetitive.

I am copying this to the opposition MPs who spoke at the SfS conference; I
hope they do not object to method of contact (Mr. Allan is my MP).

I have observed a variety of tactics used by the Home Office to counter
B.O.P. objections, all of which fail to address the central issue:

Waffle - Repeatedly stating what you believe to be true, without advancing
arguments to support your beliefs.

Misdirection - The worst of these is the Minister's proposed course of
action for an innocent person who ends up in court. This appears to be
"hand over as much information as you can; explain the circumstances of
your key loss, and let the court decide" (my quotes, my summary). Read the
bill and find the implicit assumption in here; that the key still exists
somewhere (S49(2)-b). This is misleading in the extreme, as it implies
there is some material evidence which can be provided in your defence,
namely "all such information ... as was required ... to enable possession
of the key to be obtained". When I forget a password, the key is gone;
lost forever. There is no tangible evidence that I can offer. Thus, the
Minister's scheme compacts to "explain how it [your key] was generated,
when you last used it and what you normally do if you forget it."

Fobbing-off - "It's a lower standard of proof". This, to me, is a tacit
acknowledgement that the bill is deficient. In the existing
burden-reversing statutes (e.g. proof of motor insurance), the defendant
*should* (but is not required to) be able to prove his defence beyond
reasonable doubt. He should be able to offer solid, material,
incontrovertible proof of his innocence. If the statutory defences are
incapable of being proved to this standard, they are deficient.


As I stated, these fail to address the central issue, which is (drum
role)...
that in the situation where an innocent person has forgotten his password,
the burden to avoid conviction falls on him.

The 'burden' of proving the offence is trivial (it might be vacuous; I
forget my first-year logic course). One statement from the accused is
necessary to prove the offence; "I have forgotten the password". It proves
S49(1)-b (prior possession) implicitly. To forget something, you
previously knew it. An innocent, law-abiding, honest person would
'confess' his crime in this way. This is an important point which the
Government have failed to grasp (or address, at least).

At present, the best course of action to take upon receiving a notice
which you know you cannot comply with is to state that the key does not
exist and then to keep quiet. To explain why you cannot comply; that you
used to have the key, but you have now forgotten it, would be to confess a
criminal offence! (Really, that is how the bill is drafted. Somebody
please tell me I'm wrong.)

What of the statutory defences?
To get caught up in the finer points of courtroom evidence ignores the
fundamental principle that you are having to prove yourself innocent of a
(trivially-proven) offence. Although a satisfactory explanation of how to
prove you have forgotten a password would be welcomed, do not forget that
you are still being burdened with proving your innocence.
This would perhaps be palatable if the defences were not logically
impossible. I'm sure no-one on this list needs convincing that you cannot
disprove knowledge of a fact.

The Bill could be easily rectified on this matter by removing S49(1)-b,
"or has had" [possession of the key]. Compel the prosecution to prove you
have the key, and the burden of proof is back its proper orientation.

As always, I would be delighted if someone could show me where I have gone
wrong or incorrectly interpreted the Bill.


Phil

Resources:

http://www.fipr.org/rip/
http://www.fipr.org/rip/burdenproof.html