s/forget passphrase for/cause permanent destruction of/ , Re: Letwin wants increased penalties for refusal to decrypt

[Nicholas Bohm]

At 15:10 20/08/2002 +0100, Owen Lewis wrote:

> > >
> > > A better analogy is a vault to which the owner refuses to surrender
> > > the key. In the days where most vaults were physical, a refusal to
> > > open it when directed to by a judge could send you to jail for a
> > > very long time (AIR no maximum sentence in some circumstances).
> >
> > When did this last happen? Were there cries of "guilty of possessing
> > the key until proven innocent" at that time?
>
>As Nicholas Bohm has just pointed out, this applies in two instances:
>
>         -       Where it is a DTI Inspector who makes the demand.
>
>         -       Where a judge orders it in a *civil* case.
>
>If a judge's order is not complied with, it can be called 'contempt of
>court'. AIUI where a judge decides that there has been contempt of court, he
>has the authority to order the imprisonment (without trial) of the person
>committing the contempt and such imprisonment may continue until he is
>satisfied that the contempt has been 'purged'. I.e. There is a heartfelt
>apology for the contempt and complete compliance with his original direction
>(to disclose etc).

But if someone is really stroppy and just refuses, after a while (perhaps a 
year) the Official Solicitor applies to the judge to let him out on the 
grounds that keeping him there longer will do no good; and sooner or later 
he walks.


>In the case of the DTI Inspectors, one is, as a Company Director, obliged to
>answer their questions fully and to produce all documents demanded. Failure
>to comply carries a jail sentence.

It can be punished as a contempt by the High Court; but it isn't a crime.

>If compliance self-incriminates the
>Director, evidence so obtained can be used at his subsequent trial for an
>offence the evidence of which may lie only in his self-incrimination.

No.  As I tried to say in my earlier message, the ECtHR in Saunders ruled 
the admission of compelled evidence incompatible with the right to a fair 
trial.

A similar challenge might succeed against compulsory disclosure of 
passwords, although it is argued to be like compulsory disclosure of e.g. 
fingerprints or DNA (assumed OK) and not like compulsory giving of 
testimony (not OK).  There is clearly some hairsplitting involved.

Regards

Nicholas

Salkyns, Great Canfield,
Takeley, Bishop's Stortford CM22 6SX, UK

Phone   01279 871272    (+44 1279 871272)
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PGP RSA 1024 bit public key ID: 0x08340015.  Fingerprint:
9E 15 FB 2A 54 96 24 37  98 A2 E0 D1 34 13 48 07
PGP DSS/DH 1024/3072 public key ID: 0x899DD7FF.  Fingerprint:
5248 1320 B42E 84FC 1E8B  A9E6 0912 AE66 899D D7FF