E-Mail Search Warrants and Mary Queen of Scots.

April 30, 1998

The Scottish Parliament’s Justice 2 Committee has for several months been considering an amendment to the Criminal Justice (Scotland) Bill that would allow the police to apply for criminal search warrants by way of secure e-mail. The reasons given for the proposed amendment include the need for urgency when attempting to apprehend drugs offenders who can quickly dispose of evidence whilst signature of paper warrants is being obtained. 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 should 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 the attempted use of encryption. He cited a case affecting a Scottish prisoner who was held at Chartley Hall in Staffordshire. That prisoner used a method 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 in 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.

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 jurisdiction to sign off warrants for police officers in cars.” 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 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. It is currently being tested by many solicitors firms across Scotland and it is my intention to have my 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.

Paul Motion is a Partner at Ledingham Chalmers, Edinburgh.