R v S(F) and A(S)
| Jurisdiction | England & Wales |
| Judge | President of the Queen's Bench Division |
| Judgment Date | 09 October 2008 |
| Neutral Citation | [2008] EWCA Crim 2177 |
| Docket Number | Case No: 200803647 C5 (S) |
| Court | Court of Appeal (Criminal Division) |
| Date | 09 October 2008 |
[2008] EWCA Crim 2177
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CENTRAL CRIMINAL COURT
HIS HONOUR JUDGE STEPHENS QC
Royal Courts of Justice
Strand,
London, WC2A 2LL
The President Of The Queen's Bench Division
Mr Justice Penry-davey
Mr Justice Simon
Case No: 200803647 C5 (S)
200803648 C5 (A)
Mr M Ryder and Mr S.R Powles for S
Mr N Wrack for A
Mr N Godsmark QC and Mr L Mably for the Crown
Hearing dates : 29 th July 2008
President of the Queen's Bench Division :
On 29 July 2008 we dismissed an interlocutory appeal under section 35(1) of the Criminal Procedure Investigations Act 1996 by S and A against the decision of His Honour Judge Martin Stephens QC at the Central Criminal Court, during the course of a Preparatory Hearing heard on 26 th June 2008, when he refused to order that counts alleging that the appellants had committed offences under section 53 of the Regulation of Investigatory Powers Act 2000 ( RIPA) should be stayed. These are the reasons for our decision.
The Facts
During 2007 H was made the subject of a control order under the Prevention of Terrorism Act 2005. The order obliged him to live and remain in Leicestershire, and not to leave his home address without the consent of the Secretary of State for the Home Department. The present appellants are alleged to have conspired together, and with H and others, to breach that order. The objective of the conspiracy was to assist H to abscond from his address in Leicester and to convey him to a new, secret address in Sheffield. On 9 September 2007 S collected H and drove him there. Shortly after their arrival in Sheffield the police entered the premises.
H was found in one room, and S in another. S was alone in the same room as a computer. The key to an encrypted file appeared to have been partially entered. He was arrested, and when interviewed, made no comment. In the meantime his home address in London was searched. The search revealed computer material. Various documents had been deleted from the computer hard drives, but when retrieved, they provided the basis for charges against S under section 58 of the Terrorism Act 2000, that is, possessing documents or records of information of kind likely to be useful to a terrorist or potential terrorist. However without the encryption keys for the encrypted files present on the computer hard drives, and indeed the full key for encrypted file on the laptop on which the encryption key appeared to have been already partially entered in Sheffield, the encrypted files could not be accessed and their contents examined.
A was also arrested on 9 September. Computer material was later seized from his address by the police. One of the discs seized has an encrypted area. Without the encryption key access cannot be gained to it.
Both appellants were charged on 10 th September 2007 with conspiracy to breach the control order imposed on H In December 2007 S was arrested while in custody, and following an interview in which he declined to answer any questions, he was charged with offences under section 58 of the 2000 Act. While subject to these charges, on 16 January 2008, S was served with two notices under section 53 of RIPA, and a similar notice was served on A on 15 March 2008.
The first notice served on S immediately identified the purpose, the “investigation of protected electronic information”, and after explaining that the notice imposed a legal obligation, failure to comply with which was an offence, it continued:
“Disclosure requirement
… I hereby require you to disclose a key or any supporting information to make information intelligible
the information to which this notice relates is:
the full encryption key in order to access the encrypted volume of the laptop computer that is exhibited as exhibit AM/1 under file path: C:\Documents and Settings\Administrator\My Documents\My Videos, within a file called Ronin.wma. This was found in the room where you were arrested at 386 Abbeydale Road, Sheffield”.
The reason for the notice was explained, with particulars given of the precise circumstances in which the interests of national security and the prevention or detection of crime were said to arise.
The notice then described how
“disclosure can be verbal or written provided the information is sufficient to unlock the encryption, and that the person to whom the notice is given may select which of any relevant keys or combination of keys should be disclosed provided the information is put into intelligible form.”
The remaining notices were in identical terms, appropriate to the electronic information identified in them.
Neither S nor A complied with the notices. Their position was that the notices which compelled them to disclose the passwords or “keys” to the encrypted computer files were incompatible with the privilege against self-incrimination. Their refusal formed the basis of the counts in the indictment which Judge Stephens was invited to stay on the basis that “the requirement to provide information to the police under Part III of RIPA constituted an impermissible infringement of the …privilege against self-incrimination” and contravened article 6 of the European Convention of Human Rights. In a careful ruling Judge Stephens rejected the applications. Applications for leave to appeal against his decision were referred to the full court by the Registrar of Criminal Appeals. After full argument leave was granted but the appeals dismissed.
The 2000 Act provides the current, comprehensive regulatory structure which governs the interception of communications, surveillance activities, access to communications data and decryption of encrypted material. Section 49 of the Act creates the power to require disclosure of “any protected information” which means
“…any electronic data which, without the key to the data –
(a) cannot, or cannot readily, be accessed, or
(b) cannot, or cannot readily, be put into an intelligible form”
The exercise of the power however is subject to compliance with extensive pre-conditions which must be demonstrated to the satisfaction of a judge without whose permission the notice cannot be given.
Section 49 (1) ensures that the protected information to which any notice relates must have been lawfully acquired whether “by means of the exercise of a statutory power” or “any other lawful means”. Section 49(2) requires the application to be based on reasonable grounds for believing
“…
(a) that a key to the protected information is in the possession of any person,
(b) that the imposition of the disclosure requirement in respect of the protected information is –
(i) necessary on grounds falling within sub-section (3) or
(ii) necessary for the purpose of securing the effective exercise of proper performance by any public authority of any statutory power or statutory duty
(c) that the imposition of such a requirement is proportionate to what is sought to be achieved by its imposition and
(d) that it is not reasonably practicable for the person with the appropriate permission to obtain possession of the protected information in an intelligible form without the giving of a notice under this section, …”
For the purposes of this section necessity is closely defined by section 49(3) and is limited to
“….(a).. the interests of national security;
(b)…the purpose of preventing or detecting crime; or
(c)..the economic wellbeing of the United Kingdom”.
In short, the exercise of the notification process is predicated on the basis that electronic data which cannot readily be accessed or made intelligible without the key to it is already lawfully in the possession of the police (or other similar authority) and that the interests of national security or the prevention or detection of crime necessarily require its disclosure because no alternative, reasonable method of gaining access to it or making it intelligible is available. The disclosure request, and the consequent obligation imposed on the individual to whom it is addressed, must also be proportionate to its intended objective. The exercise of the power to require disclosure in these circumstances anticipates at least the potential for disclosure of information which may inculpate the individual to whom the notice is addressed: hence, no doubt, the statutory conditions and limitations on its exercise.
Failure, knowingly, to make the disclosure required by a notice lawfully issued under section 49 is a criminal offence, punishable on conviction with imprisonment, in a case involving national security, for a maximum term of 5 years, and in any other case, 2 years' imprisonment.
Discussion
The submission on behalf of the appellants contained a number of different strands, said to be supported by a variety of different authorities; but on analysis, they all derive from and the essence of the submission is the privilege against self-incrimination. It is perhaps noteworthy that the submission assumes that the disclosure of the key to the protected data in the possession of the appellants would incriminate them, and indeed in the case of S, may provide evidence supportive of the prosecution case against him under section 58 of the Terrorism Act. There is no direct evidence before us that it would, and no admission to that effect has been made by the appellants. But we were invited to proceed on the basis for the purposes of this argument that if the appropriate key were provided, incriminating material may be discovered.
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