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Selfie Incriminating Evidence: A Guide to Mobile Phone Evidence in Criminal Proceedings – Part One

Smartphones are a staple of modern day life. Whether you are playing Angry Birds at the bus stop, watching Netflix during a lunchbreak, using Google Maps while you drive or calling a friend, for many of us, our phones are by our side 24/7. However, despite the convenience that your trusty Smartphone brings, many will be surprised to learn the wealth of information these devises contain about us.

When analysed during the course of a criminal investigation, a Smartphone can offer up a significant amount of information to the police, which may be used during a trial. For example, who you have been calling, when and for how long, what messages you have sent /received, what pictures and videos you have taken/received and from what location, where you have travelled to and the other Smartphones your devise might have co-located with. In many cases, this information can still be retrieved even if deleted.

This blog is the first in a series that will consider the complex world of Smartphone analysis in criminal proceedings. This initial blog however, will focus on the police powers to look at and seize a mobile phone device and whether an individual has to provide their phone password or PIN number to police.

The police have stopped me. Can an officer look through my mobile phone without permission?

Simply being stopped and questioned by police is not sufficient for the police to go through an individual’s phone without consent.

If a police officer considers that there are ‘reasonable grounds’ to suspect that the individual is in possession of a weapon, illicit drugs, stolen property or something that can be used to commit a crime, then the individual may be subject to a police search.

However, even in this case, the police still do not have the power to look through the individual’s phone unless they

  1. have that individual’s consent
  2. are checking to see whether the mobile phone is stolen or,
  3. are relying on specific legal powers related to terrorism offences or child sex offences.

The police have said that they are taking/seizing my phone. Can they do this?

Once an individual is lawfully arrested, the police have the power to seize anything belonging to the individual. This includes mobile phones.

Depending on what an individual has been arrested for, further searches may be authorised. For example, a search at the individual’s home address. Mobile phones found at the locations authorised may also be seized.

The police officer has now asked for my PIN/Password, do I have to provide it?

To access most Smartphones, an individual will normally need to pass through some security encryption to gain access to the device. Most commonly, this will be a PIN number or password.

It is not uncommon that individuals will be asked by police on arrest, on arrival at the custody suite or in interview what their phone PIN number or Password is. It is important that the individual is are aware that they are entitled to free and independent legal advice at the police station before they provide this information.

A police officer cannot force an individual to provide the PIN number or Password to a mobile phone however, it is important for the individual to know the consequences of a failure to provide such information:

Firstly, failing to provide the PIN number or Password may result in an adverse inference being drawn against the individual, should the case proceed to trial. This means that a jury in the Crown Court or a District Judge/Magistrates in the Magistrates’ Court may question why an individual failed to provide this information.

Secondly, in some cases, failing to provide a PIN number or Password may result in a separate criminal offence and prosecution under the Regulation of Investigatory Powers Act 2000 (commonly referred to as RIPA). Section 49 of RIPA permits the police, security / intelligence agencies or other authorised law enforcement (e.g. the Serious Fraud Office or the Serious Organised Crime Agency) to serve a notice on a suspect requiring the disclosure of their PIN number or Password. After a s.49 notice has been served, it becomes a separate criminal offence to refuse to provide the information under Section 53 of RIPA. The maximum sentence for committing this offence is 2 years custody (unless the case concerns a matter of national security or child indecency, in which the maximum sentence is 5 years).

It is important to obtain legal advice as soon as possible when faced with a criminal investigation concerning potential mobile phone analysis. At Hodge Jones & Allen, our team of expert Crime Team are on hand to help and are experienced in dealing with these types of cases. Call our experts now on 0330 822 3451 or request a call back. 

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