2 ms·

Doesn't this mean the prosection makes an assertion and the defendant has to prove the contrary ? The context for the bit you quote says the defendant must pro

by deepnet 11y ago

Doesn't this mean the prosection makes an assertion and the defendant has to prove the contrary ? The context for the bit you quote says the defendant must prove the contrary (their innocence). It does say evidence is required and states that evidence is an assertion of the date and details of the file, nothing more. This is not a law to be prosecuted but an investigtory power, an obstruction of justice , there is no jury, the judge decides, like contempt of court. This then imposes a "disclosure requirement" , no further proof is required to jail someone who non-compliant, no jury is involved. IMHO the standard of proof is no more than prosecutorial assertion of file contents & date so to my mind it guilty by accusation until proven innocent - a travesty. IMHO the standard of proof is so low, file contents & date that it really seems one is guilty until proven innocent

sjy 11y ago
No, the quote from s 53(3)(b) refers to a defence. You are not in possession of the password if sufficient evidence is adduced to raise an issue (https://en.wikipedia.org/wiki/Evidential_burden https://en.wikipedia.org/wiki/Evidential_burden), and the contrary (ie. that you were in fact in possession) is not proved beyond reasonable doubt. Typically you would discharge the evidential burden by giving sworn evidence that you have forgotten the password. The prosecution would then have to adduce evidence that proves the contrary beyond reasonable doubt, for example evidence that you had used the password every day for the past few years. Secondly, this is a 'law to be prosecuted' in the sense that s 53 creates an ordinary criminal offence. Section 49 creates the investigative power to issue a notice compelling someone to disclose a password, and s 53 makes it a criminal offence not to comply with the notice.
- deepnet 11y ago
  So the defendant must expicitly deny it before proper proof is presented ? What sort of thing could possibly prove innocence ? A coma or merely a denial ? The text of RIPA49 states the only defense is to produce the documents and prove you were entitled to them - which is very different. The law does state that the initial proof is only content description and date which seems a lower standard than beyond reasonable doubt. So it creates a criminal offense, does that mean the proof must be beyond a reasonable doubt and is that a jury trial ? What proof was presented in the previous 3 RIPA49 jailings ? IP addresses, footage or testimony that the guy was using that computer at that time, i.e. means and opportunity ? My guess is not but I really hope you can show I mistaken and British Justice still stands.

by deepnet 11y ago

sjy 11y ago

No, the quote from s 53(3)(b) refers to a defence. You are not in possession of the password if sufficient evidence is adduced to raise an issue (https://en.wikipedia.org/wiki/Evidential_burden https://en.wikipedia.org/wiki/Evidential_burden), and the contrary (ie. that you were in fact in possession) is not proved beyond reasonable doubt. Typically you would discharge the evidential burden by giving sworn evidence that you have forgotten the password. The prosecution would then have to adduce evidence that proves the contrary beyond reasonable doubt, for example evidence that you had used the password every day for the past few years. Secondly, this is a 'law to be prosecuted' in the sense that s 53 creates an ordinary criminal offence. Section 49 creates the investigative power to issue a notice compelling someone to disclose a password, and s 53 makes it a criminal offence not to comply with the notice.

deepnet 11y ago
So the defendant must expicitly deny it before proper proof is presented ? What sort of thing could possibly prove innocence ? A coma or merely a denial ? The text of RIPA49 states the only defense is to produce the documents and prove you were entitled to them - which is very different. The law does state that the initial proof is only content description and date which seems a lower standard than beyond reasonable doubt. So it creates a criminal offense, does that mean the proof must be beyond a reasonable doubt and is that a jury trial ? What proof was presented in the previous 3 RIPA49 jailings ? IP addresses, footage or testimony that the guy was using that computer at that time, i.e. means and opportunity ? My guess is not but I really hope you can show I mistaken and British Justice still stands.