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New powers to force terror suspects to hand over encryption keys have been used in only eight criminal investigations, prompting fears that police could be bypassing courts by spooking suspects with the mere threat of extra jail time.

Section 49 of the Regulation of Investigatory Powers Act 2001 (RIPA) has been used eight times since coming into force at the start of October, Home Secretary Jacqui Smith said.

Four of the cases were terrorism-related, and two people were charged for maintaining their refusal. Neither has been prosecuted yet, she said, responding to a parliamentary question from her Tory shadow, David Davis.

The Home Office told The Register that the four other investigations where the powers have been used were: conspiracy to murder; withholding information in relation to conspiracy to murder; conspiracy to defraud; and making indecent images of children.

In her parliamentary answer, Smith said that following the order, two of the encryption keys in the non-terrorism cases have been disclosed.

Simon Davies of Privacy International, which campaigned against section 49 of RIPA when legislation was being drafted, was surprised at the low figure. "That number is remarkable, given the abuse of RIPA by quangos and local councils," he said.

"It indicates to me the power was never really needed in the first place. However, it might be that the Home Office is having technical or legal problems using the power, especially around human rights legislation."

Failing to comply with a section 49 order is an offence and carries a prison sentence of up to five years. Investigators can only obtain a section 49 order from a judge in England and Wales, or from a County Sheriff in Scotland.

"I think it's likely that police are using the threat of the power to force people to disclose encryption keys - it carries a hefty prison sentence, and people could be being denied justice," Davies said.

The Home Office does not record if police threaten to use section 49 powers. A spokeswoman said it could not provide further details of the cases because it was a police operational matter. ®

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