Yes! Plenty of times e.g.

https://www.techdirt.com/articles/20140116/09195525902/uk-ma...

You can Google more easily...

Yes, thank you for reminding me I can Google.

From your own link - he said he forgot the password, which(I assume) in itself wasn't enough to prosecute, it was the fact that he eventually caved in and provided it 4 months later, so they got him on purposefully obstructing justice for 4 months. It's not clear if he could be successfully prosecuted for this crime if he never remembered the password.

Here you have someone directly sentenced for not disclosing their password:

https://www.bbc.com/news/uk-england-hampshire-45365464

I mean, we can be doing this back and forth for a while, but again, to quote from the article:

"Judge Christopher Parker did not accept Nicholson's "wholly inadequate" excuse that providing his password would expose information relating to cannabis."

So basically he said "I know the password, but I'm not going to tell you". That's obstructing justice.

My point is if you say you don't remember and maintain saying you don't, can you be persecuted purely on this one law. Because so far it looks like you can't.

This is the reason America's 5th amendment exists, people have the ability to not self-incriminate because it gives way for a different form of obstruction of justice, compelling people to speak under duress mainly.

I've long wished most of the American constitution made it's way over to Britain. We've had many of the freedoms enshrined in it for centuries but a few, particularly the principle of freedom of speech, has been trampled over in the internet age.

While the fifth amendment in the US is certainly a good principle, even it doesn't (currently) appear to provide a blanket protection against providing your passwords. My (likely incomplete) understanding of the current situation is that things are still ambiguous with many nuances not yet having been settled by the courts.

On the one hand, there is federal precedent (https://law.justia.com/cases/federal/appellate-courts/ca3/17...) that the government must be able to demonstrate both that the defendant knows the password and that criminal evidence is known to exist on the device. The bar for both of these things appears to be fairly high.

On the other hand, there is precedent at the state level in Pennsylvania (https://law.justia.com/cases/pennsylvania/supreme-court/2019...) that disclosure of passwords is testimonial in nature and therefore always (I think?) protected, even if you admit both to knowing the password and to the existence of criminal evidence.

Note the different jurisdictions for the precedents here. In federal courts that fall under the third circuit (which includes Pennsylvania), the first one applies. In state courts within Pennsylvania, the second one applies. This oddity won't change until and unless the US Supreme Court chooses to hear a relevant case. So in Pennsylvania, the law is currently different depending on if the FBI or the local police is the one prosecuting you.

Also note that from the first case, failure to provide the password is a form of civil contempt and therefore confinement is limited to 18 months at most.

https://www.legislation.gov.uk/ukpga/2000/23/part/III

The police think Bob has material that they need to see.

They think that:

    The key, password, code is in the possession of the person given notice.
    Disclosure is necessary in preventing or detecting crime.
    Disclosure is proportionate.
    The protected material cannot be obtained by other reasonable means.

They serve a section 49 notice.

Bob can ignore this. But that means he may be guilty of an offence under S53.

One of the defences available is to say that he's not in possession of the key. He'd have to persuade the court that either He'd forgotten the key or your encryption was set up in a way that he'd never had the key in a memorable form.

> 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.

So, to answer your question: yes, a person could be prosecuted, and they'd have to prove they forgot the key. The prosecutors wouldn't have to prove that the key had not been forgotten.

Absolutely, but that loops back all the way back to my original question - has anyone ever been successfully been prosecuted for actually forgetting their password. Or at least saying "look, my passwords are auto generated and 32 characters long, I think the 5th and 8th characters were a # but I'm not sure". What then? You're not refusing to provide the password, you are just not exactly sure what it was, and if you look into my password manager you can see all my passwords are at least 32 characters long so I'm not making it up.

I don't think anyone has been prosecuted. I'm not arguing with your point - this stuff is messy. It's not clear cut. There's a combination of how the law is written, how courts have interpreted that in the past, whether that would stand up to the supreme court or the EU courts, and what you can persuade the jury and judges to believe.

If you're providing part of your password you run the risk that

i) you'll be convicted of the S53 RIPA offence (potentially 2 years for most stuff, potentially 5 years for child sexual exploitation or terrorism)

and

ii) they'll decrypt it somehow and you'll also be convicted of the original offences.

Criminals are well aware of the trade-offs of the English courts. Do you plead guilty at the earliest opportunity (and get a reduction in sentence as a result) or do you wait until the day of the trial (because many trials collapse before they get to court).

Ok I see you point - I have read an solicitor opinion that this may be a valid defense, however, you could likely be expected to prove that you have a medical condition or history of forgetting things. I am pretty sure you cannot just say "oh I forgot, my bad, sorry."