R v.Lambert House of Lords and RIP reverse-burden-of-proof

[Owen Lewis]

> -----Original Message-----
> From: ukcrypto-admin@chiark.greenend.org.uk
> [mailto:ukcrypto-admin@chiark.greenend.org.uk]On Behalf Of Caspar Bowden
> Sent: 07 July 2001 14:15
> To: 'Ukcrypto'; FIPR-AC
> Subject: R v.Lambert House of Lords and RIP reverse-burden-of-proof
>
>
> There is a reference to RIP reverse-burden-of-proof in Lord Hope's
> opinion (para.93) in the following House of Lords appeal (5th July
> 2001). It appears to be a major rehearsal of arguments about the
> presumption of innocence in HRA.
>
> A little disconcertingly, Lord Hope refers to the "offence of
> possession" in RIP 53(2), as if possession of a key was the inherent
> offence (like a controlled drug), rather than the issue of possession
> arising from non-compliance with a s.49 order.
>
> Although the opinions are interesting, they don't seem to clarify much
> what will suffice to "raise the issue" of no-PANTS (Possession after
> Notice Time of Serving) in 53(2). Asserting an unusually bad memory ?
> Through statements or testimony from the witness box ? Asserting a
> normal memory, but forgetfulness in this instance ?

I think we return to the point that cryptography is neither 'good' nor 'bad'
it is (in modern form) a useful bit of technology that takes upon itself the
ethical or legal colour of the purpose for which it is used. Where it is
used, to conceal evidence of crime or criminal purpose it is not safe to
argue that that the concealment it provides should not be forced open under
due legal process.

We need also to return to the basic matter of whether it is right that a
search of a persons belongings may be made lawfully. This is never a
pleasant thing but I believe the substantial majority view is that from time
to time such a procedure is better to be effected than not.

So, premises are entered and there is information in store on two computers.
On one the store is encrypted and on the other it is not. The warrant
authorising the search permits the seizure and examination of all this
information. Can it be right, that the order of the court is thwarted simply
because one container is 'locked' and the other container is 'open'?

It is also clear that if the enciphered container held incriminating
material, it would be much in the interest of its owner to withhold the key,
claiming it to be lost or some such. I can see no way to prevent such a
course being taken except to ensure that it is likely to lead the owner into
a great deal of trouble - albeit perhaps less trouble that he would be in if
the contents could be read.

It is essential with PKC that secret keys be kept securely. It is much in
the interest of the owner that they are never lost or compromised, with the
single exception that a 'loss' can thwart a search. It is reasonable
therefore to presume that key holders secure their secret keys with care.
Nevertheless, keys are lost from time to time; many of us will have lost a
key at some time or other. Therefore it seems right that a court listen to a
reasoned explanation as to why a key demanded has not been handed over and
exercise judgement as to whether the explanation is reasonable in the
circumstances. But the purpose of the law will be thwarted if the owner of a
key is not required to prove that the loss has occurred and in some way that
can be shown to have no connection to a demand for its surrender.

So what should be the real effect of this on key owners? Surely, it
reinforces their natural inclination to assure that their keys are well
secured at all times. There is some miniscule part of the population who may
be placed unfairly at risk because of such law. It seems to me that their
satisfactory protection should come not from removal of the new offence of
not surrendering a key but from ensuring that there is a strong prima facie
case to be made against either the key holder or against some person from
whom it can be shown he has been in receipt of enciphered information.

In sum, the reasons for requiring a search must be of the strongest. If they
are, then it is not tolerable that a mechanism be allowed by default whereby
any and all such searches can be thwarted at will and without fear or
consequence. Therefore, I think that attempts to have such a mechanism
allowed as a 'human right' are doomed to failure; the courts are not
entirely naive. A tactic that, through test cases or other means, leads to
the requirement for a radical strengthening of the grounds for demanding
searches (and therefore the surrender of keys) is much more likely to
succeed, I think.

Owen