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These notes refer to the Protection of Children (Encrypted Material) Bill as introduced in the House of Commons on 21 January 2009 [Bill 18]
PROTECTION OF CHILDREN
(ENCRYPTED MATERIAL) BILL
1. These Explanatory Notes relate to the Protection of Children (Encrypted Material) Bill as introduced in the House of Commons on 21 January 2009. They have been prepared by Sir Paul Beresford, the Member in charge of the Bill, in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.
2. The Notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given.
SUMMARY AND BACKGROUND
3. This Bill is designed to give greater protection to children by raising the penalty for failing to provide the key to encrypted data to the police when requested. It also makes the offence of refusing to provide the key subject to notification requirements when the provisions of this Bill apply.
4. Part 3 of the Regulation of Investigatory Powers Act 2000 allows the police to request the key to encrypted data or request that it is provided to them unprotected. The offence, as drafted, carries a maximum sentence of two years imprisonment although section 15 of the Terrorism Act 2006 amended the Act to provide for a higher penalty where the material was likely to involve terrorist material.
5. Law enforcement agencies have become increasingly concerned that encryption is being used to hide indecent photographs of children. Encryption programs are becoming more readily available and, for example, the latest version of Microsoft Vista includes the ability to encrypt data.
Bill 18EN 54/4
COMMENTARY ON CLAUSES
Clause 1: Amendment of Penalty
6. Whilst a person refusing to provide the key would commit an offence under section 53, there is concern that offenders will not do so. If they are aware that the protected data contains indecent photographs of children then there is no incentive to disclose the key. By not doing so, they are liable for a maximum sentence of two years imprisonment. However if they do disclose the data then they are liable for a maximum sentence of either five years imprisonment (possession of an indecent photograph of a child: section 160, Criminal Justice Act 1988) or 10 years imprisonment (making an indecent photograph of a child: section 1, Protection of Children Act 1978). The Sentencing Guidelines Council recommend that even where section 1 is used, the ordinary maximum should be five years ? the duration provided in this Bill.
7. The higher penalty would apply in one of three defined circumstances:
8. Relevant sexual offence is an offence relating to indecent photographs of children, namely:
These offences have been chosen because they show a propensity to use indecent photographs of children and make it more likely that the protected data (which the offender is refusing to provide) contains indecent photographs of children.
9. This Bill does not provide for any new criminal offence. The offence is refusing to hand over encrypted data and if the suspect complies then the provisions of this Bill are not triggered. In the recent Court of Appeal decision in R v S and A  EWCA Crim 2177 it was held that section 53 does not infringe any fundamental human right. Sir Igor Judge P. (now Lord Judge CJ) stated:
This is relevant to this Bill: the disclosure of the key is separate from whether the data itself breaches any laws.
Clause 2: Notification Requirements
10. This clause provides that where a person breaches section 53 in the circumstances outlined above they become subject to the notification requirements under Part 2 of the Sexual Offences Act 2003. The courts have consistently stated that the notification requirements are not a penalty and so their imposition in these circumstances does not make the measures more punitive.
Clause 3: Commencement
11. This Bill will come into force three months after Royal Assent. The three months allows for the police, Crown Prosecution Service and judiciary to become aware of its provisions.
|© Parliamentary copyright 2009||Prepared: 13 March 2009|