The defendants were accused of assisting a person to evade a control order. On arrest their computers had been seized, and they now sought an order on an interim appeal to discharge the case under the 2000 Act of not providing passwords to encrypted material. They said that the Act required them to incriminate themselves.
Held: The encryption key existed separately from the defendant’s will, and was not distinct in character from the encrypted files. It was the equivalent to the key to a locked drawer, and was neutral, save that knowledge of the key might be an incriminating fact, and the privilege against self-incrimination might be engaged by a requirement of disclosure of knowledge of the means of access to protected data under compulsion of law. The 1984 Act could be used by the judge to deal with any unfairness which might arise in the trial.
Lord Judge, Lord Chief Justice, Mr Justice Penry-Davey and Mr Justice Simon
Regulation of Investigatory Powers Act 2000, Terrorism Act 2000 58, European Convention on Human Rights 6, Police and Criminal Evidence Act 1984 78
England and Wales
Updated: 08 March 2021; Ref: scu.280411