The following are the notes created by Nicholas Bohm for his presentation to Scrambling for Safety 3.5 on September 23, 1999.
Right to a fair trial, includes right not to be compelled to incriminate oneself.
"Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law."
Complainant of breach of Convention must show there has been a breach. Respondent State must justify reliance on any exception. The necessity for any restriction of Convention rights "must be convincingly established."
Barthold v Germany (1985) 7 EHRR 383, 403
The prosecution must prove its case without resort to evidence obtained through coercion and oppression in defiance of the will of the accused.
It is one thing to compel the accused to permit premises to be searched or fingerprints to be recorded or samples to be taken to examine DNA. It is another, and unacceptable, to compel the accused to say where documents are hidden or how other evidence against him may be obtained.
Funke v France (1993) 16 EHRR 297
Saunders v UK (1997) 23 EHRR 313
Conclusion: suspect cannot be compelled to disclose key to incriminating evidence.
Alternatively: suspect cannot be compelled to admit to knowledge of key if knowledge of the encrypted document is an element in the offence (e.g. document provides grounds for suspicion of money laundering).
It is not necessarily incompatible to require the accused to prove a defence or to rely on a presumption of fact or law.
Possible justification: it is unfair to impose on a prosecutor the burden of proving a negative.
Lingens and Leitgen v Austria (1981) 4 EHRR 373, 390-391
But reversing the burden of proof and reliance on presumptions must be confined within reasonable limits in their application to individual cases.
Salabiaku v France (1988) 13 EHRR 379
Hoang v France (1992) 16 EHRR 53
Putting the burden of proof on the accused is limited to offences where statute prohibits the doing of an act save in specified circumstances, or by persons of specified classes, or with specified qualifications, or with the licence or authority of specified authorities.
R v Edwards  QB 27
Magistrates' Courts Act 1980, section 101: the person relying on any exception, exemption, proviso, excuse or qualification must prove its availability.
E.g. a driver must prove he held certificate of insurance.
But must be a true exception, not a central element in the offence dressed up as an exception, and it must be reasonable for the burden to be put on the accused.
Where the offence was possessing cash reasonably suspected of being stolen without giving the court a satisfactory explanation, the accused's inability to explain was not truly a defence but the most important element of the offence, and the burden on the prosecution was reduced to proving merely formal matters, which contravened the presumption of innocence.
Attorney-General of Hong Kong v Lee Kwong-Kut  AC 951
If an accused bears the burden of disproving an essential element of an offence, it is possible for a conviction to occur despite a reasonable doubt of his guilt.
R v Oakes 26 DLR (4th) 200 (Canadian Supreme Court)
When that possibility exists, there is a breach of the presumption of innocence.
R v White 51 DLR (4th) 481
Possession of a key (or relevant information) is a central element of the offence, and transferring the burden to the accused leaves mere formalities (service of notice) to be proved by prosecution. Proof of a negative is impossible, and transferring the burden is grossly unreasonable.
Likewise: in prosecuting a third party for tipping off, their knowledge of requirement of secrecy is the central element in the offence, and proof of ignorance is impossible.
Clauses 12 and 13 will involve serious contraventions of the right to a fair trial guaranteed by the European Convention on Human Rights and incorporated into UK law by the Human Rights Act 1998.
-- Nicholas Bohm, September 23, 1999.
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Last updated October 8, 1999.