Analysis of Part III of the (draft) Electronics Communications Act 1999

Self-incrimination

"In my opinion the privileged avoidance of self-incrimination extends further than answers which themselves will support a conviction. It must logically embrace all answers which would furnish a link in the chain of evidence needed to prosecute a conviction."

CASE OF SAUNDERS v. THE UNITED KINGDOM, 00019187/91, CONCURRING OPINION OF JUDGE WALSH, 17/12/1996 EUROPEAN COURT OF HUMAN RIGHTS, http://www.dhcour.coe.fr/eng/JUDGMENTS/SAUNDERS.html

Attention can also be usefully drawn to the ruling in Funke v. France [1993] 16 EHRR 297 which held that there was no obligation to hand over details of foreign bank accounts.

Self-incrimination is covered by Article 6 of the European Convention on Human Rights.

It may be seen as incriminating per se to give up a decryption key since that would show (in a world where encryption is still relatively rare) that you had been receiving messages covertly. If the authorities then use this key to make sense of material that was already in there possession then this could form the bulk of the case against you.

People often suggest that, as in the 'Right to Silence' debate, the solution may lie in a negative inference being drawn from your refusal to decrypt material for the benefit of the prosecution. One's view as to whether this is 'fair' may be coloured by the sort of offence that is being prosecuted.

Caspar Bowden draws attention to:

The Right To Silence: An Examination Of The Issues, Scrutiny Of Acts And Regulations Committee, Parliament of Victoria ( http://www.parliament.vic.gov.au/sarc/rts/rts98.html)

"In particular, the right [of silence] and the privilege [against self-incrimination] are commonly said to have originated in the abolition of the Court of Star Chamber....these courts were highly unpopular, largely because they were used to suppress religious and political dissent. But their procedures were also seen as oppressive, with the judges of both courts having the power to interrogate an accused person on oath. This meant that an accused person could be compelled by threat of punishment to swear an oath to tell the truth, and could then be interrogated by the court in order to determine whether or not he or she had committed an offence.
This exposed the accused to what the High Court has described as `the "cruel trilemma" of punishment for refusal to testify, punishment for truthful testimony or perjury (and the consequential possibility of punishment)'...
Perhaps the most objectionable aspect of the procedure was that the accused could be interrogated on oath before any charges were laid, and without having even been informed of what it was that he or she was alleged to have done. Interrogation on oath could thus be used as a `fishing expedition', to try and produce evidence of some as yet undisclosed and unidentified criminality".

and Caspar continues:

It does appear that a Section 10 notice could be served (under 10.1.c/d) without the authorities giving any indication about the suspected offence, or justication as relevant to a criminal investigation.

We should consider the self-incrimination question under English law. What exactly would 10.1.c/d allow in terms of obtaining data without PACE/IOCA warrants? Under the Schedules, it does not appear that the authorities have to prove any relevance to criminality in order to obtain a S.10 authorisation (but it must be obtained from a judge or Secretary of State - details finicky, but vague).

Seems to me that we do have a "cruel trilemma"....