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Here are some previous cases involving charges of failing to comply with a s 49 notice, under s 53 of the Regulation of Investigatory Powers Act 2000. Unfortuna

by sjy 11y ago

Here are some previous cases involving charges of failing to comply with a s 49 notice, under s 53 of the Regulation of Investigatory Powers Act 2000. Unfortunately I don't know of any good comprehensive free source for recent English cases, but I have provided the media neutral citations. * Padellec [2012] EWCA Crim 1956. The accused's computer was seized and there was evidence that files had been deleted with filenames that suggested they were child pornography. He refused to provide a password to an encrypted volume and pleaded guilty to a s 53 offence. The Court of Appeal said that the accused's self-serving account of what would have been found on the encrypted volume should not have been accepted for sentencing purposes. * Cutler, Morrison, Parratt & Freeman [2011] EWCA Crim 2781. This was an appeal against sentence by four members of a paedophile ring who pleaded guilty to s 53 offences. * S & A [2008] EWCA Crim 2177. The Court of Appeal rejected a challenge to the validity of s 53 based on the privilege against self-incrimination. Available on BAILII: http://www.bailii.org/ew/cases/EWCA/Crim/2008/2177.html http://www.bailii.org/ew/cases/EWCA/Crim/2008/2177.html

cm2187 11y ago
The Court of Appeal judgment is very interesting but also very questionable. If I understand it correctly, they claim that the encrypted data exist outside of the defendant's brain and is in possession of the police, therefore it is tangible evidence, the key is merely a way to access it. And the police can force a defendant to provide access to tangible evidence like a DNA sample or a pubic hair. And therefore non self-incrimination does not apply to that evidence. It is very questionable as one could argue that the decryption key is a segment of the data, and that the data only becomes meaningful, and therefore evidence if the file is complete. The police is therefore trying to get additional evidence (the missing data segment, the key) to build a case, and then we are 100% in the realm of self-incrimination. I am struggling to understand #25. It seems to imply that the only reason for the defendant to refuse to provide the key can only be because the data would contain incriminating evidence, and therefore it would somehow weaken the defense against self-incrimination. First there may be other reasons to refuse to give access to the data (privacy for instance, it might be embarrassing for a religious person to acknowledge watching gay porn!). But mostly the idea that the defense against self incrimination is weakened because complying with the request from the police would incriminate oneself is I think completely circular and defeats the whole purpose of non self-incrimination. I also find it very concerning that the justice applies extremely fuzzy concepts like "the stability of society" to challenge basic liberties.

by sjy 11y ago

cm2187 11y ago

The Court of Appeal judgment is very interesting but also very questionable. If I understand it correctly, they claim that the encrypted data exist outside of the defendant's brain and is in possession of the police, therefore it is tangible evidence, the key is merely a way to access it. And the police can force a defendant to provide access to tangible evidence like a DNA sample or a pubic hair. And therefore non self-incrimination does not apply to that evidence. It is very questionable as one could argue that the decryption key is a segment of the data, and that the data only becomes meaningful, and therefore evidence if the file is complete. The police is therefore trying to get additional evidence (the missing data segment, the key) to build a case, and then we are 100% in the realm of self-incrimination. I am struggling to understand #25. It seems to imply that the only reason for the defendant to refuse to provide the key can only be because the data would contain incriminating evidence, and therefore it would somehow weaken the defense against self-incrimination. First there may be other reasons to refuse to give access to the data (privacy for instance, it might be embarrassing for a religious person to acknowledge watching gay porn!). But mostly the idea that the defense against self incrimination is weakened because complying with the request from the police would incriminate oneself is I think completely circular and defeats the whole purpose of non self-incrimination. I also find it very concerning that the justice applies extremely fuzzy concepts like "the stability of society" to challenge basic liberties.