Court of Appeal orders men to disclose encryption keys

People have a right not to incriminate themselves, but the Court of Appeal said that it was not an absolute right and that there were exceptions to it in cases of legitimate public interest.

Mr Justice Penry-Davey also pointed out that the right not to self-incriminate does not apply to evidence which has an existence independent of the person involved.

The judge quoted a previous ruling which established that principle. "There is a distinction between the compulsory production of documents or other material which have an existence independent of the will of the suspect or accused person and statements that he has had to make under compulsion. In the former case there is no infringement of the right to silence and the right not to incriminate oneself. In the latter case there could be, depending on the circumstances," said the ruling in the 2003 case of R v Kearns.

Mr Justice Penry-Davey said that the key did exist independently of the two men's wills, as did the data on the computers.

"In this sense the key to the computer equipment is no different to the key to a locked drawer," said the judge. "The contents of the drawer exist independently of the suspect: so does the key to it. The contents may or may not be incriminating: the key is neutral. In the present cases the prosecution is in possession of the drawer: it cannot however gain access to the contents. The lock cannot be broken or picked, and the drawer itself cannot be damaged without destroying the contents."

"The actual answers, that is to say the product of the appellants' minds could not, of themselves, be incriminating. The keys themselves simply open the locked drawer, revealing its contents," he said.

Mr Justice Penry-Davey did concede, though, that if the computers were found to contain incriminating material then the fact that the two men knew what the passwords were could itself become incriminating evidence. The fact of their knowledge of the password, and not the password itself, could incriminate them.

In this case the trial judge in relation to the terrorism offences would be able to order that the manner of the discovery of the computer-stored information could be concealed.

"If the material were, as we have assumed, incriminatory, it would be open to the trial judge to exclude evidence of the means by which the prosecution gained access to it. Accordingly the extent to which the privilege against self-incrimination may be engaged is indeed very limited," said Mr Justice Penry-Davey.