Common law powers to force disclosure etc

Francis Davey fjmd1a at
Mon Mar 24 09:48:11 GMT 2014

[hopefully this will get through - edited title]

> Just one point, in the "evidence against you" case, if they can prove to
> criminal standards it is in the safe, they don't need to get you to open
> the safe - they can just convict you on the evidence.

I think that shortcuts things slightly (see below)

> It's when they can't prove that that it gets interesting. In the civil
> case, assuming that they can't get you to open the safe - Nicholas thinks
> they might be able to - you can only be convicted (of contempt) if they can
> prove the egg is in the safe.
To elaborate: this discussion originated out of the question whether the
courts had a power _at common law_ to force someone to give up an
encryption key. As it happens they did, but it would have been very unusual
for circumstances to arise where that would happen - it may be more common

Historically courts had numerous inherent powers to order people to do
things. So many it would be impossible to go through them all. I have
mentioned the power to order the production of goods which existed even in
the early Mediaeval period (eg by writ of detinue) and was certainly
something which the courts of equity did order when they became the
principal court making coercive orders of that kind.

Of course a writ of detinue couldn't have been used for an encryption key
because it is not a chose in possession so cannot be wrongfully detained.

I gave the example of the egg in the safe to illustrate the fact that a
court might be interested in ordering you to produce an egg than to open
the safe. I.e. it might not make an order detailing how you were to carry
out an action, but simply order the result of the action. In the normal run
of things where you are keeping the object you are wrongly detaining won't
matter to the court one bit. If you are capable of producing it, then that
is what they are likely to order.

Injunctions are very fact sensitive. Some are very detailed. For example
the blocking injunction first made by Arnold J against BT required the use
of a specific filtering technology (Cleanfeed) and a specific mechanism (by
URL specifically - thus making the order useless against https a point
realised in later cases).

So, sticking with wrongful interference of goods for the moment, you can
imagine a case where you, the defendant, were sued for wrongful detention
of a Faberge egg. In extremely contrived circumstances a court might
conclude that you don't in fact know whether you have it but that it is in
a particular safe you can open. You *might* be ordered to open the safe as
being all you can do to satisfy the claimant who wants their egg. If the
egg has been taken (eg by someone else with the combination) already, you
cannot be blamed.

Indeed your legal representative might try to narrow the order to just that.

Now, on to encryption keys. The courts have a general power to require the
production of evidence in civil proceedings. They have much more limited
powers (a) in criminal proceedings and (b) in situations where disclosure
might incriminate. There are exceptions (this is complex field) eg the
privilege against self-incrimination does not apply to intellectual
property claims as was exampled in the Mulcaire case.

So, in a civil proceeding, the court won't normally want a key, they will
order disclosure of evidence. If you don't disclose evidence you should do
you will be in breach of the court's order. Most of the time this will be
dealt with procedurally (eg you may end up loosing the case but that's
all), but sometimes you may be held in contempt.

Note that civil contempt is not a crime. Though you can be (rarely)
imprisoned for it or fined, it is not a crime and you aren't "convicted".
Though proof is required to a criminal standard as an exception to the
normal rule on civil proof.

But again you could contrive situations where a court would want the key
not the evidence protected by the key and where failure to disclose the key
would be a contempt and could be coerced.

So the power is there in some circumstances. Whether you could have
persuaded a judge of the Common Please in 1300 of the point is another

Francis Davey
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