Justice Press Release

Government believes the Bill as drafted is compatible with ECHR and Stephen Byers published a statement to that effect when the draft Bill was published.

Accusation – self incrimination

The police can already get access to the information (eg via a search warrant or interception warrant) all we are doing is giving them the power to read it. The proposals do not give law enforcement agencies new powers to obtain evidential material.

Search warrants are not hindered by the fact that a door happens to be locked. In essence, we are simply providing powers to the police to deal with a new type of, unbreakable, lock.

We do not believe this is in breach of article 6 of ECHR, which includes a privilege against self-incrimination. The rule against self-incrimination is designed to stop forced confessions which can be unreliable. There is no question of exacting false information on a ‘key’. It either works or it doesn’t. 

The extraction of the key itself is not incriminating.

What about police powers to take DNA/fingerprints without consent. If this is not self- incriminating then why is it not reasonable to demand that they produce a password.

Accusation – inadequate safeguards against abuse.

We do not believe this is in breach of article 8 of ECHR. This article says expressly that “There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The Bill proposes an independent Commissioner to oversee the use of the Secretary of State’s powers to authorise the issuing of written notices and a Tribunal to hear complaints. For other written notices, an individual would be able to initiate proceedings under s7 Human Rights Act if he thought Convention Rights had been violated

Accusation – reversal of the burden of proof

The Bill does not reverse the onus of proof. The point is that it will still be for the authorities to prove that an offence has been committed for a prosecution to get off the ground. The Bill actually proposes specific defences