The case is absolutely awful, but he was jailed for refusing to hand over the key, which is (according to the article) exactly what he did. The article is very kind to the suspect here, and nowhere does it even suggest that he had lost the key or otherwise wasn't able to decrypt the files.
Since when is refusing to incriminate oneself punishable with jail time? Last time I checked it wasn't.
Refusing to provide encryption keys is the same thing. There might be illegal data, there might not be. It's the duty of the police to prove it, not the accused.
This is the UK not the US. They don't have a 5th amendment.
In the US courts are split on the issue. Some say giving an encryption key is testifying, an act of the mind, and you can't force someone to testify against themselves under the 5th. Others say its like handing over a regular key, which you can be forced to do, because the 5th covers testimony, not everything incriminating. It was intended to prevent forced confessions.
Once you're in front of a court you don't get to keep secrets, with the exception of some narrow protections. This has always been the case in the Anglo-American system.
The debate is partly this: forcing you to produce an encryption key /also/ testifies that the drive belongs to you (or you had access to it).
You are not necessarily obligated to testify to that fact for the police, and unless they can demonstrate that the drive belonged to you (or you had access) through some other means, the production of an encryption key is tantamount to forcing that confession.
It's much like if there were a lock on a gun they found on the street: if they can't link the gun to you already, they can't demand you turn over the combination for the lock, because knowing such a combination would be a tacit admission to knowing about the gun.
I'd think it's also an issue of the 4th. Consider sharing a machine with different user accounts. Asking me to decrypt a drive just might be an unreasonable search, because outside of logical partitioning, there's no concept of "a user's files" when the police just use a disk copy tool to pull all files off the disk.
We don't have anti-incrimination laws. If you go in front of a judge, the judge has the right to all relevant information with which to make a decision. What happened here is that the judge asked for the keys and was refused them. Plain and simple. If you don't trust your judicial system to (eventually) get to the right answer, you've got bigger problems.
"there can be no doubt that the right to remain silent under police questioning and the privilege against self-incrimination are generally recognised international standards which lie at the heart of the notion of a fair procedure"
The case concerns a claim that it was injust to make inferences as to the guilt of the appellant based on their choice to remain silent before the police and court. This appeal under Art.6 ECHR failed (though a claim of preventing access to an attorney succeeded). The court finding that there was no undue inference made, that any inferences as to guilt that had arisen out of the defendants failure to break silence were allowable.
I'm not sure this really helps so much as it seems as it appears to allow the [partial] curtailment of presumption of innocence.
It's interesting that the article conflates right to silence and self-incrimination, I thought they were kept separate. It mentions the exception for encryption but doesn't mention any exception for safe codes which is what my line of thinking was based on. That being said, I can't find a reference to that either...
