Adducing sufficient evidence to raise an issue

[Caspar Bowden]

>admin@chiark.greenend.org.uk] On Behalf Of Nicholas Bohm

>Take self-defence as a defence to a charge of a crime involving the use
>of force.  The burden of proving the charge is on the prosecution.  But
>they do not have to prove in every case that the accused was not acting
>in self-defence.=20

I think that it a poor analogy because it is always logically possible
that someone was acting in self-defence, and therefore as a matter of
pure logic it is putting a categorically less onerous burden on someone
to demonstrate evidence for something that is logically possible, than
the far more Alice-in-Wonderland knife-edge idea of asking them to prove
something which may be logically impossible (such as that a key no
longer exists).

>In the case of
>a brawl in a pub, it surely takes no more than an assertion by the
>accused to raise the issue and put the prosecution to the burden of
>negativing it.
...
>What does it take to raise an issue about being in possession of a key?
>Not a lot, I suspect.  Probably just the evidence of the holder that he
>doesn't have it.=20

Well, *if* all it takes if for the defaulting decrypter to say "Can't",
then I agree RIP Pt.3 has been an incredible waste of time (not that I
would be too upset about that)

>It's difficult to see what other evidence there could
>be, though a few messages saying "I'm sorry I can't read your message
as
>I've lost my key" might help.=20

Yes, but a law is still a duff law, unless in *every* reasonable
instance of its application, it provides a reasonable answer.=20

>If the evidence shows you used a key
>yesterday, your claim to have forgotten it today might raise the issue
>by amounting to sufficient evidence, but of course it may leave it
>fairly easy to convince a jury you did have it unless you can explain
>the disappearance.  "I saw the police on the doorstep so I swallowed
the
>rice-paper before they could serve the notice" might still get you
home,
>of course.  Better keep some rice-paper about, though.

Good point.

>I'm not sure why the CoP should deal with this - it's surely supposed
to
>say how the authorities will exercise their powers rather than how the
>courts will decide the resulting cases.

Technically that's true, because we both know that officials think CoPs
should re-state the legislation no more no less. Swashbuckling
flourishes of inspiration are limited to (3.30) "Taking all these
considerations into account in a particular case, an interference with
the right to respect of individual privacy may still not be justified
because the adverse impact on the privacy of an individual or group of
individuals is too severe."

But since I think RIP Pt.3 has stitched up individual rights in an
unreasonable logical coup, I'm griping that it doesn't contain what a
Minister ought to mean by an assurance that "all that sort of thing will
be covered in the Code of Practice".

But BTW I think I do have a list of Hansard Pt.3 CoP issues somewhere,
but would be grateful for e-mail on any with a fresh eye or past chapter
and verse.

--
Caspar Bowden