"... where a notice specifies that a key be handed over, the individual/business served with a written notice may decide that their security has been compromised and may incur considerable costs in implementing new security systems or changing the keys of other trading partners, customers and associates.
"... it also refers to the quality of the law in question, requiring that it should be accessible to the person concerned, who must moreover be able to foresee its consequences for him, and compatible with the rule of law.
The Court reiterates in that connection that Article 8(2) requires the law in question to be 'compatible with the rule of law'. In the context of secret measures of surveillance or interception of communications by public authorities, because of the lack of public scrutiny and the risk of misuse of power, the domestic law must provide some protection to the individual against arbitrary interference with Article 8 rights. Thus, the domestic law must be sufficiently clear in its terms to give citizens an adequate indication as to the circumstances in and conditions on which public authorities are empowered to resort to any such secret measures." (paras. 55 and 64)
"... tapping and other forms of interception of telephone conversations constitute a serious interference with private life and correspondence and must accordingly be based on a "law" that is particularly precise. It is essential to have clear, detailed rules on the subject, especially as the technology available for use is continually becoming more sophisticated (see Kruslin v France (1990) 12 EHRR 547 and Huvig v France (1990) 12 EHRR 528, para. 33, and para. 32, respectively).
In that connection, the Court by no means seeks to minimise the value of some of the safeguards built into the law, such as the requirement at the relevant stage of the proceedings that the prosecuting authorities' telephone-tapping order must be approved by the President of the Indictment Division, who is an independent judge, or the fact that the applicant was officially informed that his telephone calls had been intercepted.
However, the Court discerns a contradiction between the clear text of legislation which protects legal professional privilege when a lawyer is being monitored as a third party and the practice followed in the present case. Even though the case-law has established the principle, which is moreover generally accepted, that legal professional privilege covers only the relationship between a lawyer and his clients, the law does not clearly state how, under what conditions and by whom the distinction is to be drawn between matters specifically connected with a lawyer's work under instructions from a party to proceedings and those relating to activity other than that of counsel.
Above all, in practice, it is, to say the least, astonishing that this task should be assigned to an official of the Post Office's legal department, who is a member of the executive, without supervision by an independent judge, especially in this sensitive area of the confidential relations between a lawyer and his clients, which directly concern the rights of the defence.
In short, Swiss law, whether written or unwritten, does not indicate with sufficient clarity the scope and manner of exercise of the authorities' discretion in the matter. Consequently, Mr. Kopp, as a lawyer, did not enjoy the minimum degree of protection required by the rule of law in a democratic society. There has therefore been a breach of Article 8." (Paras. 72 to 75, emphasis added)
"The Kruslin and Huvig judgments mention the following minimum safeguards that should be set out in the statute in order to avoid abuses of power: a definition of the categories of people liable to have their telephones tapped by judicial order, the nature of the offences which may give rise to such an order, a limit on the duration of telephone tapping, the procedure for drawing up the summary reports containing intercepted conversations, the precautions to be taken in order to communicate the recordings intact and in their entirety for possible inspection by the judge and by the defence and the circumstances in which recordings may or must be erased or the tapes destroyed, in particular where an accused has been discharged by an investigating judge or acquitted by a court (loc. cit. Para. 35, and para. 34, respectively)." (Para. 46(iv))
"The Court notes that the customs secured Mr. Funke's conviction in order to obtain certain documents which they believed must exist, although they were not certain of the fact. Being unable or unwilling to procure them by some other means, they attempted to compel the applicant himself to provide the evidence of offences he had allegedly committed. The special features of customs law cannot justify such an infringement of the right of anyone 'charged with a criminal offence', within the autonomous meaning of this expression in Article 6, to remain silent and not to contribute to incriminating himself.
There has accordingly been a breach of Article 6(1).
The foregoing conclusion makes it unnecessary for the Court to ascertain whether Mr. Funke's conviction also contravened the principle of presumption of innocence." (paras. 44-45)
"Although not specifically mentioned in Article 6 of the Convention, there can be no doubt that the right to remain silent under police questioning and the privilege against self-incrimination are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6 (see the Funke judgment cited above, loc. cit.). By providing the accused with protection against improper compulsion by the authorities these immunities contribute to avoiding miscarriages of justice and to securing the aims of Article 6."
The powers under clause 10 are not, however, designed to obtain information which has an existence independent of the will of the addressee, such as documents; that information is already in (or is likely to come into) the possession of the law enforcement agencies, albeit in an encrypted form. The power under clause 10 is designed to obtain the private decryption key, which is very much in the mind of the suspect (at least via the password), to enable them to read a document they already hold (or are likely to hold). Any analogy with real evidence such as documents, blood or urine samples or undeveloped film is, in our view, inappropriate.
"As commonly understood in the legal systems of the Contracting Parties to the Convention and elsewhere, [the privilege against self-incrimination] does not extend to the use in criminal proceedings of material which may be obtained from the accused through the use of compulsory powers but which has an existence independent of the will of the suspect such as, inter alia, documents acquired pursuant to a warrant, breath, blood and urine samples and bodily tissue for the purpose of DNA testing." (Para. 69)
Furthermore, the Court did:
"In any event, bearing in mind the concept of fairness in Article 6, the right not to incriminate oneself cannot reasonably be confined to statements of admission of wrongdoing or to remarks which are directly incriminating. Testimony obtained under compulsion which appears on its face to be of a non-incriminating nature - such as exculpatory remarks or mere information on questions of fact - may later be deployed in criminal proceedings in support of the prosecution case, for example to contradict or cast doubt upon other statements of the accused or evidence given by him during the trial or to otherwise undermine his credibility. Where the credibility of an accused must be assessed by a jury the use of such testimony may be especially harmful. It follows that what is of the essence in this context is the use to which evidence obtained under compulsion is put in the course of the criminal trial."(para. 71, emphasis added)
" ... not accept the Government's argument that the complexity of corporate fraud and the vital public interest in the investigation of such fraud and the punishment of those responsible could justify such a marked departure as that which occurred in the present case from one of the basic principles of a fair procedure. Like the Commission, it considers that the general requirements of fairness contained in Article 6, including the right not to incriminate oneself, apply to criminal proceedings in respect of all types of criminal offences without distinction from the most simple to the most complex. The public interest cannot be invoked to justify the use of answers compulsorily obtained in a non-judicial investigation to incriminate the accused during the trial proceedings." (Para. 74, emphasis added)
"A defendant who chooses not to give or call evidence may be convicted without mens rea of the offence being proved against him.
It seems to me that on their face both sections [under consideration] undermine, in a blatant and obvious way, the presumption of innocence.
Under section 16A a defendant could be convicted even if the jury entertained a reasonable doubt whether he knew that the items were in his premises and whether he had the items for a terrorist purpose. Under section 16B a defendant could be convicted even if the jury entertained a reasonable doubt whether the information had been collected or was possessed for any terrorist purpose. In both sections the presumption of innocence is violated." (page 190F to H)
This statement was approved by Lord Bingham CJ in ex parte Kebilene.
"The real concern is not whether the accused must disprove an element or prove an excuse, but that an accused may be convicted while a reasonable doubt exists. When that possibility exists, there is a breach of the presumption of innocence. The exact characterisation of a factor as an essential element, a collateral factor, an excuse, or a defence should not affect the analysis of the presumption of innocence. It is the final effect of a provision on the verdict that is decisive. If an accused is required to prove some fact on the balance of probabilities to avoid conviction, the provision violates the presumption of innocence because it permits a conviction in spite of a reasonable doubt in the mind of the trier of fact as to the guilt of the accused." (page 493, emphasis added)
Accordingly, in order to be able to complain to a domestic court or to the Court in Strasbourg, an individual or a company would only have to show that it was either:-
"a law may by itself violate the rights of an individual if the individual is directly affected by the law in the absence of any specific measure of implementation."
"... a member of a class of persons against whom measures of ... were liable to be employed" (Malone v United Kingdom (1985) 7 EHRR 14, para. 64);
or that there was a "reasonable likelihood" that it was subject to such measures (Halford v United Kingdom (1997) 24 EHRR 523, para. 48). Due to the popularity of the internet and electronic commerce, the category of potential "victims" is thus potentially very wide indeed.
Jack Beatson QC and Tim Eicke
Essex Court Chambers
24 Lincoln's Inn Fields
London WC2A 3ED
7 October 1999
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