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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> S & Anor, R v [2008] EWCA Crim 2177 (09 October 2008) URL: https://www.bailii.org/ew/cases/EWCA/Crim/2008/2177.html Cite as: [2008] EWCA Crim 2177, [2009] 1 All ER 716, [2009] 1 WLR 1489 |
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200803648 C5 (A) |
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CENTRAL CRIMINAL COURT
HIS HONOUR JUDGE STEPHENS QC
Strand, London, WC2A 2LL |
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B e f o r e :
MR JUSTICE PENRY-DAVEY
MR JUSTICE SIMON
____________________
R -v- S and A |
____________________
Mr N Wrack for A
Mr N Godsmark QC and Mr L Mably for the Crown
Hearing dates : 29th July 2008
____________________
Crown Copyright ©
President of the Queen's Bench Division :
The Facts
"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".
"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.
The Regulation of Investigatory Powers Act 2000
"…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.
"…
(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".
Discussion
"Few would dispute that some curtailment of the liberty is indispensable to the stability of society; and indeed in the United Kingdom today our lives are permeated by enforceable duties to provide information on demand…"
In some cases the use which may be made of any such information or answers in the course of distinct criminal proceedings is closely limited (see for example, section 98 of the Children Act 1989) and in others the answers may provide direct evidence to support a subsequent prosecution (for example, section 172 of the Road Traffic Act 1988). In the Police and Criminal Evidence Act 1984 detailed structures are created to govern the provision of intimate samples (such as samples of blood and pubic hair) and non intimate samples (such as non-pubic hair) and the need for and consequences of the absence of consent (where consent is required) or non-compliance (where it is not). In short, statutory provision has been made both to enable information provided or answers given in response to a statutory obligation to do so to be used in evidence in support of a subsequent prosecution, and for the failure or refusal to comply with a request for information, properly made, itself to constitute a criminal offence with consequent sanctions. In Brown v Stott [Procurator Fiscal, Dunfermline] and another [2003] 1 AC 681 the privilege against self incrimination, which was described as a right implied from albeit not expressly referred to in article 6 of the Convention, was held not to be absolute, and to be subject to limited qualifications where necessary to achieve a legitimate public interest. Lord Bingham explained the effect of the jurisprudence of the European Court
"…that while the overall fairness of a criminal trial cannot be compromised, the constituent rights comprised, whether expressly or implicitly, within article 6 are not themselves absolute. Limited qualification of these rights is acceptable if reasonably directed by national authorities towards a clear and proper public objective and if representing no greater qualification than the situation calls for"
In these circumstances it was not submitted that the privilege against self incrimination is absolute, nor that the offence created in the context of Part III of RIPA is incompatible with article 6 of the European Convention.
"the right not to incriminate oneself …does not extend to the use in criminal proceedings of material which may be obtained from the accused through compulsory powers but which have 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".
The principle that evidence existing independent of the will of the suspect does not normally engage the privilege against self-incrimination is clearly established in domestic law. It was applied in Attorney-General's Reference (No7 of 200) [2001] 2 CAR 286, R v Kearns [2003] 1 CAR 111 and R v Hundall and Dhaliwal [2004] 2 CAR 307 where the court cited, with approval, the judgment of Aikens J at paragraph 53 in Kearns that
"There is a distinction between the compulsory production of documents or other material which have an existence independent of the will of the suspect or accused person and statements that he has had to make under compulsion. In the former case there is no infringement of the right to silence and the right not to incriminate oneself. In the latter case there could be, depending on the circumstances"
The same reasoning was applied in C plc v P [2007] 3WLR 437 and was addressed but not decided in Re A [2008] EWHC 1362 (Admin), in which the ratio of the decision in C plc v P was applied.