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'(1) A person is guilty of an offence if--
(a) with intent to impede access to protected information or the putting of that information into an intelligible form, he fails to comply in accordance with a section 46 notice with a requirement of that notice to disclose a key to protected information;
(b) there are reasonable grounds for believing that possession of the key is necessary to obtain access to the protected information or the putting of that information into an intelligible form; and
(c) he is a person who has, or who after the giving of the notice and before the time by which he was required to disclose the key, had possession of the key.
(2) A person is guilty of an offence if--
(a) he fails to comply in accordance with a section 46 notice with a requirement of that notice to disclose a key to protected information;
(b) there are reasonable grounds for believing that possession of the key is necessary to obtain access to the protected information or the putting of that information into an intelligible form;
'(aa) that a key disclosed in pursuance of a section 46 notice is stored safely and kept safe at all times;'.
Mr. Heald: This group of new clauses and amendments is at the heart of the Opposition's anxieties about the Bill. New clause 1 is an attempt to deal with the controversy about clause 49 that has raged since the first consultations on it.
Clause 49 makes it an offence punishable by two years' imprisonment to fail to comply with a notice that requires the production of a key to coded information--an encryption key. The criticisms are made from two perspectives, which are different but none the less valid, in the Opposition's view.
The first criticism involves the punishment for failing to provide a decryption key. I pause to mention that the Minister has said that a key will be required only in cases in which the most suspicion arises and the Government
The first criticism is that to ask for a key but not to be given one would be of no use to the Government, but the serious criminals whom they want to target would be all too prepared to contest the lesser offence in the hope that they might be acquitted. They will think two years much better than 10. Through the new clause, we have attempted to tackle the problem of the inadequate sentence. The second criticism, which is entirely different, is that the defendant will be required to prove his innocence and explain why he was unable to provide the key. The burden will be entirely on him to prove his innocence if it is shown that he failed to comply with the notice.
Apart from the criticism that that may breach the European convention on human rights, it is repugnant at law to require someone to prove his innocence. It goes against the golden thread that runs through English justice. Neither we nor those who are concerned about the matter have taken that lightly. Justice and the Foundation for Information Policy Research asked a leading barrister to consider the issue and produce advice on which we could deliberate in Committee. Tim Eicke has done that.
In Committee, I asked whether it would be possible for a Law Officer to address such issues so that we could have a detailed legal exposition of how the Government justify the offence. That did not happen; I chided the Minister, but he said he was certain that the offence was perfectly normal, and that it was not a matter of huge concern that an innocent person would be required to prove his innocence. However, it is worth considering what Tim Eicke and others have said. In his advice, he describes the offence as "repugnant".
We all know the careful way in which lawyers phrase things. In fact, the Minister criticised it in Committee, and told us that he hated lawyers. A barrister may say that something is doubtful or difficult, or that there are legal difficulties, but the use of the word "repugnant" shows that the problem is pretty serious. Tim Eicke describes the offence as repugnant because no guilty intention is required as a ground for a conviction. He says that in most offences, the prosecution has to prove not only that particular events occurred, but that someone had a guilty intention. For example, for theft, one has to be dishonest; for murder, one has at least to intend to cause grievous bodily harm. However, in this offence, if it is shown that someone did not comply with the notice served on him, the duty is on him to prove that he lost or forgot the key, or that there is some other innocent explanation.
The Opposition are not satisfied that an offence that a leading human rights barrister describes as repugnant should go on the statute book without the Minister having met the challenge of the ideas that have been presented to him and explained why it is right in this case that a man can be found guilty when he has no guilty intention. Why should someone have the burden of proving his innocence?
It is important to note that it is not only the main Opposition party that has made that point. The Liberal Democrats have also made it, and their new clause 7 tries to import into the Bill the concept that there should be a guilty mind, and an intention, before a person can be found guilty. Although they do not go as far as we do, like us they include the intention to impede access to justice or to prevent the information from being put into an intelligible form.
New clause 1 deals with the issues that I have described. It would increase the penalty for this offence to 10 years, which the Liberal Democrat new clause would not. It would also allow evidence of previous convictions or of other material found at the scene of a police investigation to be used to prove guilty knowledge. That is not unprecedented; it has been done before in other areas of law. If the police or other authorities go to a house and during their investigations they find, for example, a computer that has paedophiliac images of children, that evidence should be allowed to be used to point to the vast mass of encrypted material on the computer and the fact that when the accused was asked to produce the key to the information he refused to do so. The court could draw an inference of guilty knowledge.
With new clause 1, we are trying to target the offence more on serious criminals, while respecting human rights and the right of an individual to the type of fair trial that we have had in this country for hundreds of years. We hope that the Minister's response will be fuller on this issue here than it was in Committee.
One of the fears that those organisations have expressed to me, along with others--including all Opposition parties--is that if keys are not to be kept safe, or if the arrangements are not entirely satisfactory, there will be a fracturing of trust in the whole process of encryption. That could have a dramatic effect on business confidence in a new technology and a new industry--something that members of all parties profess to support, but that the Government endanger by failing to deal with the position fully. Both EURIM--the European Informatics Market--and the Foundation for Information Policy Research have made that point, and I look forward to what the Minister has to say about it.
In Committee, we said that the notices that the Bill requires to be served on companies and individuals should be obviously recognisable and verifiable, so that con merchants and others could not use the procedures while pretending to be the authorities. Under amendment No. 39, a notice under clause 46 will have to include the grounds for that notice, the office, rank or position of the notice giver, whether a plain text is sufficient, the time by which the notice must be complied with, and the manner of compliance. Both we and the Liberal Democrats suggested such measures in Committee, and we therefore welcome the amendment; but it does not go as far as we would have liked.
We wanted a system enabling all notices served under the Bill to be instantly recognisable, and to contain security information that could be checked through the use of ultra-violet light or other security methods. We wanted the establishment of a clear verification point where the industry could go to find out whether a notice was valid. Although reassurances have been given, it would be helpful if the Minister repeated them, and told us what point the deliberations have reached.
Government amendment No. 67 is also important, because it provides that the key will be required only in special circumstances. The Minister agreed to that in Committee. As I have said, that means that those who are asked for the key are far more likely to be those who are under suspicion, because plain text will be more readily satisfactory from those who are not under suspicion. However, I should be grateful if the Minister would explain a little more fully what he means by special circumstances. Has he a definition in mind, or is it important to use that term in order to provide a certain amount of flexibility?
Government amendments Nos. 89 and 90 exclude directors from liability under part III. They, too, meet concern expressed by Opposition Members in Committee, and show that on that occasion, the Minister was listening--but if he is prepared to listen in respect of little things, is it not time that he listened in respect of new clause 1?