The arguments in favour of encryption in criminal practice, used even by Mary Queen of Scots
Criminal practitioners would be the first to admit that they are not generally amongst the most IT literate souls around. Many criminal firms do not even have an e-mail account, let alone a website. Often this is because many of their clients do not possess a computer – not on a legal basis, at any rate.

However, criminal practitioners who remain unconvinced by the arguments in favour of IT would do well to take a closer look at what the Scottish Parliament’s Justice 2 Committee has been up to for the last few months. Justice 2 has been considering an amendment to the Criminal Justice (Scotland) Bill that would allow the police and procurators fiscal to petition a sheriff for a criminal search warrant by way of secure e-mail, in seconds. That is to say – applications made using digitally authenticated and/or encrypted messages created by Public Key Infrastructure, or PKI. Criminal practitioners have been thin on the ground at the various LawSeal PKI seminars and roadshows – now might be a good time for them to test the water since the pilot is well under way and many digital certificates have already been issued to practitioners across Scotland.

Section 134 of the Criminal Procedure (Scotland) Act 1995 (c.46), as presently worded, provides –

“This section applies to any application to a court for any warrant of order of court-

    (a) as incidental to proceedings by complaint; or
    (b) where a court has power to grant any warrant or order of court, although no    subsequent proceedings by complaint may follow thereon.

“(2) An application to which this section applies may be made by petition at the instance of the prosecutor in the form prescribed by Act of Adjournal.

“(3) Where it is necessary for the execution of a warrant or order granted under this section, warrant to break open shut and lockfast places shall be implied”.

The present system involves presentation of material, said to justify the need for a warrant, by the police to the procurator fiscal. If persuaded, the fiscal then petitions a sheriff who in turn may grant a warrant, which is delivered via the fiscal to the police. A spokesman for one well-known Police High Tech Computer Unit interviewed in preparation for this article (and who asked not to be named) stated there can be delays involved in the second stage of the process – often for understandable reasons particularly during unsociable hours – that could be all but eliminated by the use of a secure e-mail link between police, fiscals, and sheriffs. In relation to computer and drug crime such delays can allow criminals the opportunity to cover their tracks.

Helen Nisbet, of the Procurator-Fiscal Society, was recently quoted as stating: “This is a commonsense measure, which we welcome. There is a lot of time lost under the current system and, with the obvious desire for absolute security, this will bring us much more up to date.”

The proposed amendment recognised the need for urgency when attempting to apprehend drugs offenders who can quickly dispose of evidence whilst signature of paper warrants is being obtained. In its most recent from, the amendment was drafted as follows, although the amendment was withdrawn pending the deliberations reported below to allow the Executive to refine the wording if the Committee approved the use of e-mail for search warrants. It is thought therefore that the final wording of the amendment to the 1995 Act shortly to be reintroduced will be as follows:

“Use of electronic communications or electronic storage in connection with warrants to search

“(1) This section, which is without prejudice to section 8 of the Electronic Communications Act 2000 (c.7) (power to modify legislation), applies to warrants to search granted under section 134(1) of the 1995 Act (that is to say, where incidental to proceedings by complaint or although no subsequent proceedings by complaint may follow).

“(2) Subject to subsections (1) and (4), the Scottish Ministers may, in relation to warrants to which this section applies, by order modify –

    (a) any rule of law; or

    (b) the practice and procedure in relation to criminal proceedings,

in such manner as they think fit so as to authorise or facilitate the use of electronic communications or electronic storage (instead of other forms of communication or storage) for any purpose mentioned in subsection (3).

“(3) Those purposes are (in relation to the rule of law or the practice and procedure) the purposes mentioned (in relation too the provisions which may be modified under subsection (1) of section 8 of that Act of 2000) in any of paragraphs (a) to (f) of subsection (2) of that section.

“(4) The Scottish Ministers are not to make an order under subsection (2) authorising the use of electronic communications or electronic storage for any purpose unless they consider that the authorisation is such that the extent (if any) to which records of things done for that purpose will be available will be no less satisfactory in cases where use is made of electronic communications or electronic storage than in other cases.

“(5) Subsections (4) to (6) and (8) of section 8 and (5) and (6) of section 9 of that Act of 2000 apply in relation to an order made under subsection (2) as they apply in relating to an order made under subsection (1) of the said section (8).

“(6) Expressions used in this section and in that Act of 2000 have the same meanings.”

The reference to “storage” and the treatment of that issue in subsection (4) is interesting. One consequence of introducing e-mail as the conduit for issuing warrants is that there will be created instantaneously and indelible audit trail, date and time stamped, showing literally to the second exactly who said what, and who showed what, to whom. Presumably it can be taken as read that broadband ADSL or similar will be deployed to enable sheriffs to assess the text of petitions in conjunction with image files, photos, document scans, .wav sound files, video clips etc (and if not – why not?). Is this significant? Well I am not a criminal practitioner, but it certainly sounds as if it is the sort of record that might be of considerable interest, for example where some issue arises about the propriety of an apprehension or the admissibility of some item of evidence recovered by virtue of the warrant.

We might note that, at its meeting on 15 January 2003, the Justice 2 Committee was anxious that the use of secure e-mail passing between the police, the Procurator Fiscal Service and the judiciary must not “dilute judicial checks and controls over the activities of the police”.

One committee member, Struan Stevenson (Scottish Nationalist MSP for the Banff and Buchan constituency) stated that there was precedent for the difficulties caused by the attempted use of encryption to write to someone outside the prison. A third party broke the encryption and modified the letter. As a result, a false impression was created of the activities in which the prisoner was involved, which subsequently led to the execution of that prisoner. The prisoner is question was Mary Queen of Scots, who wrote the letter on 17 July 1586. Mr Stevenson said there was a need to be able to protect in a secure way information that, because it is held electronically, “is potentially available for modification by a wide range of people”.

The Committee acknowledged that further technical information was to be provided by the Scottish Executive. Perhaps there may be a role for LawSeal – after all is there much point in re-inventing the wheel? And if criminal practitioners did buy into the use of secure e-mail might it be possible to curtail the numbers of diets and/or appearances required to progress a case? Could many pleas in mitigation not be dealt with by e-mail if the accused consented to being sentenced in absence?

The Committee observed that the measures would be welcomed by Scottish judges: “Sheriffs will be quite pleased if the bill is passed into law, because they will no longer have to drive to the border of their jurisdictions to sign off warrants for police officers in cars.” The Committee expressed concern that the draft legislation used the term “Justices” to describe the members of the judiciary who would digitally sign warrants, and the final wording of the Bill will make clear that sheriffs will also be entitled to issue digitally signed warrants. The intention is that warrants will be issued from PCs and/or laptops in homes of sheriffs and justices, using secure e-mail. No indication of the preferred technology provider has yet emerged. However, as already mentioned, the Law Society of Scotland’s “LawSeal” PKI initiative might be a suitable candidate. LawSeal is well advanced and has now reached the live pilot stage, currently being tested by many solicitors’ firms across Scotland and it is the intention of the author to have his firm’s offices in the UK and elsewhere involved in the pilot to the fullest extent.

The Criminal Justice (Scotland) Bill now progresses to its third stage when detailed wording will be reintroduced in relation to e-mail search warrants. Criminal practitioners are advised in the meantime to learn about PKI/digital authentication and keep their heads. Unlike Mary.

Paul Motion, Ledingham Chalmers, Edinburgh

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