Talk:Regulation of Investigatory Powers Act 2000/Part III

Hi

I am not sure wher to place this case report. Please do as you whish with the material Ron Barker 12:06, 10 October 2008 (BST)

S & Anor, R. v (09 October 2008)

S & Anor, R. v [2008] EWCA Crim 2177 (09 October 2008)

The court dismissed an interlocutory appeal made under section 35(1) of the Criminal Procedure Investigations Act 1996 by S and A against the decision the Central Criminal Court, during the course of a Preparatory when the court 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.

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.

H abscond from his address in to a new, secret address in Sheffield. Shortly after his 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. 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 with conspiracy to breach the control order imposed on H. 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 Terrorism 2000 Act. While subject to these charges S was served with two notices under section 53 of RIPA, and a similar notice was served on A.

Failure, knowingly, to make the disclosure required by a notice lawfully issued under section 49 of Regulation of Investigatory Powers Act 2000 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.

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.