Watkins: Paedophiles & pass keys

Much has been written about the 35 year sentence for Ian Watkins. The sentencing remarks are here  and make for gruesome reading. For a detailed recitation of the sentencing law in this context we recommend Lyndon Harris at UK Criminal Law Blog. However, it is also interesting to look at the law in relation to encrypted indecent images in the context of this case. It has been widely reported that Watkins encrypted the level 4 and 5 sexual images of children on his computer and that the code “I FUK KIDZ” was cracked by GCHQ. News reports suggested the total amount of material involved was an enormous 27TB. To put that in context, 1TB is equal to about 17,000 hours of music of 320,000 high resolution photographs.

Paedophiles tend to encrypt most files to prevent others having access them, including the police who cannot routinely use GCHQ because of the cost. However, it is a criminal offence if a suspect refuses to give the password for the encrypted files to the Police on questioning which carries up to 6 years’ imprisonment (or a fine or both on indictment).

The law is contained in Regulation of Investigatory Powers Act 2000 and it’s worth looking at sections 49 to 54.

Section 49 applies where police have material in their possession after exercise of statutory duty and they believe person has encryption key- they serve a section 49 notice and failure to comply with that notice is an offence under section 53. It is not clear if such a notice was served on Watkins and, if not, why not.

The sentencing remarks are also interesting in the context of costs. It is common for judges not to proceed to a costs hearing where the defendant receives a long prison sentence but, in principle, there is no reason why Watkins could not be ordered to pay the costs of both his defence and of the prosecution to include the costs of cracking the code.

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