Regina v S and A: CACD 9 Oct 2008

The defendant appealed against his conviction under the 2000 Act for failing to disclose the key used to encrypt a computer file. He was subject to a control order as a suspected terrorist. As the police raided his house, they found the key had been half entered. He said that the requirement to disclose the key would infringe his right not to incriminate himself.
Held: The appeal failed.
Sir Igor Judge P said: ‘the key which provides access to protected data, like the data itself, exists separately from each appellant’s ‘will’. Even if it is true that each created his own key, once created, the key to the data, remains independent of the appellant’s ‘will’ . . the key to the computer equipment is no different to the key to a locked drawer. The contents of the drawer exist independently of the suspect: so does the key to it. The contents may or may not be incriminating: the key is neutral. In the present cases the prosecution is in possession of the drawer: it cannot however gain access to the contents. ‘ and
‘The key or password is, as we have explained, a fact. It does not constitute an admission of guilt. Only knowledge of it may be incriminating. The purpose of the statute is to regulate the use of encrypted material, and to impose limitations on the circumstances in which it may be used. The requirement for information is based on the interests of national security and the prevention and detection of crime, and is expressly subject to a proportionality test and judicial oversight. In the end the requirement to disclose extends no further than the provision of the key or password or access to the information. No further questions arise. ‘

Sir Igor Judge P, Penry-Davey, Simon JJ
[2008] EWCA Crim 2177, [2009] 1 All ER 716
Regulation of Investigatory Powers Act 2000 53, European Convention of Human Rights
England and Wales
CitedBlunt v Park Lane Hotel Ltd CA 1942
The court considered the rule against self incrimination. Lord Justice Goddard said: ‘The rule is that no one is bound to answer any questions if the answer thereto would, in the opinion of the judge, have a tendency to expose the defendant to any . .
CitedSaunders v The United Kingdom ECHR 17-Dec-1996
(Grand Chamber) The subsequent use against a defendant in a prosecution, of evidence which had been obtained under compulsion in company insolvency procedures was a convention breach of Art 6. Although not specifically mentioned in Article 6 of the . .
CitedRegina v Director of Serious Fraud Office, ex Parte Smith HL 15-Jul-1992
The applicant having been cautioned for an offence under the Companies Act 1985, he objected to being required to answer questions put to him in connection with the matter by the Director of the Serious Fraud Office under the 1987 Act.
Held: . .
CitedAttorney-General’s Reference (No 7 of 2000) CACD 29-Mar-2001
The defendant had been convicted of offences under the Insolvency Act. Evidence of his gambling was found in cheque stubs, bank statements, returned cheques and a betting file containing loose gambling statements by way of computer print outs . .
CitedStott (Procurator Fiscal, Dunfermline) and Another v Brown PC 5-Dec-2000
The system under which the registered keeper of a vehicle was obliged to identify herself as the driver, and such admission was to be used subsequently as evidence against her on a charge of driving with excess alcohol, was not a breach of her right . .
CitedRegina v Kearns CACD 22-Mar-2002
The defendant had failed to account for the disappearance of a substantial part of his estate to the official receiver following his bankruptcy. He appealed his conviction for failing to provide an account, saying that the requirement to provide . .
CitedHundal and Dhaliwal, Regina v CACD 3-Feb-2004
The defendants appealed against conviction and sentence for membership of an organisation proscribed under the 2000 Act. The defendants said that at the time they joined the organisation was not proscribed, and had left before it became proscribed. . .
CitedC Plc and W v P and Secretary of State for the Home Office and the Attorney General ChD 26-May-2006
The claimant sought damages from the first defendant for breach of copyright. An ex parte search order had been executed, with the defendant asserting his privilege against self-incrimination. As computer disks were examined, potentially unlawful . .
CitedMalik v Manchester Crown Court and others; Re A Admn 19-Jun-2008
The claimant was a journalist writing about terrorism. He had interviewed a man with past connections with Al-Qaeda, and he now objected to a production order for documents obtained by him in connecion with his writings. The court had acted on . .
CitedJalloh v Germany ECHR 11-Jul-2006
The applicant, after arrest, had been forced to regurgitate a bag of cocaine, there was a complaint that article 3 had been violated as well as article 6.
Held: Even evidence which may properly be described as ‘independent of the will of the . .

Cited by:
CitedGreater Manchester Police v Andrews Admn 23-May-2011
The CC appealed by case stated against a refusal of an order under the 2000 Act for the disclosure by the defendant of a cryptography key. The defendant had a history of sexual offences against children and had failed to keep to the terms of a . .

Lists of cited by and citing cases may be incomplete.

Crime, Human Rights

Leading Case

Updated: 31 October 2021; Ref: scu.276957