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  • June 1st, 2015

Failing to Give Up Passwords – a Criminal Offence

Section 49 Regulation of Investigatory Powers Act 2000

cyber_blog

Passwords – Encryption – Keys – Information

53 Failure to comply with a notice

(1) A person to whom a section 49 notice has been given is guilty of an offence if he knowingly fails, in accordance with the notice, to make the disclosure required by virtue of the giving of the notice.

(2) In proceedings against any person for an offence under this section, if it is shown that that person was in possession of a key to any protected information at any time before the time of the giving of the section 49 notice, that person shall be taken for the purposes of those proceedings to have continued to be in possession of that key at all subsequent times, unless it is shown that the key was not in his possession after the giving of the notice and before the time by which he was required to disclose it.

(3) For the purposes of this section a person shall be taken to have shown that he was not in possession of a key to protected information at a particular time if—

  • (a) sufficient evidence of that fact is adduced to raise an issue with respect to it; and
  • (b) the contrary is not proved beyond a reasonable doubt.

(4) In proceedings against any person for an offence under this section it shall be a defence for that person to show –

  • (a) that it was not reasonably practicable for him to make the disclosure required by virtue of the giving of the section 49 notice before the time by which he was required, in accordance with that notice, to make it; but
  • (b) that he did make that disclosure as soon after that time as it was reasonably practicable for him to do so.

MJP solicitors Comment

The law presumes that you did not have the key in your possession if sufficient evidence of that fact is adduced,

This means that the defence have to show why they are not in possession of the keys
For example: –

  1. they never were in possession of it
  2. they lost it, by not being remembering it by reason lapse of time
  3. they could not be expected to remember it, because of complexity

and the contrary is not proved beyond a reasonable doubt.

The defence have to raise the defence ‘issue [one or more of the above] and the prosecution have to prove that the defence are wrong or acting falsely.

It is unusual as piece of legislation which is quite untested before the Court as you correctly point out.

The penalty if the Court finds guilt, is max 2 years imprisonment or 5 years if National security or child indecency cases.


Definitions

(5B)In subsection (5A) ‘a national security case’ means a case in which the grounds specified in the notice to which the offence relates as the grounds for imposing a disclosure requirement were or included a belief that the imposition of the requirement was necessary in the interests of national security.]

[F4F2(6)In subsection (5A) “a child indecency case” means a case in which the grounds specified in the notice to which the offence relates as the grounds for imposing a disclosure requirement were or included a belief that the imposition of the requirement was necessary for the purpose of preventing or detecting an offence under any of the provisions listed in subsection (7).


MJP solicitors Comment

If you do not have the passwords. keys, etc you cannot give them up but a Court may have to decide whether, as a matter of law, you had the keys and the prosecution will have to prove beyond reasonable doubt that the defence explanation is wrong or false.

This largely untested law put the prosecution to disprove the defence explanation.

The defendant has a legal obligation to give up passwords or keys on fear of 2 years imprisonment. Defendant have to decide whether risk greater punishment from releasing the information.


For more information on this area and cyber crime you can contact MJP solicitors on 0333 011 0515 for free advice. Alternatively you can contact us through our enquiry page. We provide criminal law services throughout England and Wales including areas of cyber crime.


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