It is not uncommon for us to place protective passcodes on our electronic devices, the main purpose is to ensure our information is safe and to stop others gaining access to it. However, when we are under police investigation and a forensic examination of our devices is required the police can request for passwords to be provided to allow them access to the device. This blog intends to provide advice on the grounds which allow the police to request such information and the implications of not providing access.
The police require access to a suspects device when investigating a broad range of criminal offences. PCD Solicitors often see that phones, iPads, laptops and even Kindles are seized by police who are investigating a sexual offence. This offence maybe indecent images, rape, sexual communications with a child or grooming offences.
The powers that are given to police are under the Regulation Investigatory Powers Act 2000 (RIPA). This piece of legislation was originally introduced as an anti-terror measure but the scope for its use has widened particularly over recent years.
The grounds which allow the police to serve a notice under RIPA
Section 49 of the act provides the police with the power to serve a suspect with a notice. This notice requires a suspect to disclose a password or code allowing access to the device. The following circumstances may warrant a Section 49 notice being issues:
1. The key, password, code is in the possession of the person given notice.
2. Disclosure is necessary in preventing or detecting crime.
3. Disclosure is proportionate to the investigating of the offence.
4. The protected material cannot be obtained by other reasonable means.
Do you have to comply with a RIPA notice?
The answer in short to this question is no. However, by failing to comply with a police officers request could result in a prosecution.
Section 53 of RIPA makes it a criminal offence to not comply with the terms of the section 49 RIPA notice. Failure to comply with a police officer notice could result in a person being sentenced to a term of imprisonment of up to two years and up to five years in cases involving national security or child indecency. So, failing to comply could lead to a criminal conviction and lengthy term of imprisonment.
Many suspects of an offence may be confused as to whether there are any consequences of refusing to give the police passwords to their devices. It is important that you discuss any RIPA notice with a solicitor who can advise you based on the particular facts of your case.
What happens if I don't know my pin when the police ask for it?
It may still be possible for the police to access your phone without the passcode. Unless the data on the phone is encrypted the police can still access the information lawfully with specialist software. However, the police would usually warn a suspect that they could potentially damage the device in doing this.
Would I have a defence to not complying with a RIPA notice?
There are defences available to a person made subject to a section 49 RIPA notice. If that person can show they are not in possession of the password, key or code this could be a defence.
It would also be a defence if a person could successfully argue that the statutory prescribed grounds listed above in serving the notice are not satisfied, for example; the material could be obtained by reasonable alternative means.
A suspect's solicitor should always consider the suspect's legal interests and the potential benefits of not complying with a section 49 RIPA notice. The suspect may be under investigation for a serious criminal offence, the punishment of which could exceed that available for not complying with the RIPA notice requirements. It may be in their best interests to therefore not assist the police in potentially obtaining evidence which could result in a prosecution and conviction for a much more serious offence.
It may be that the suspect irrespective of the crime, does not want to assist the police, taking the risk that potential evidence would not be recovered and therefore, a prosecution avoided. This is a considerable risk to take especially if the police are eventually able to access the material on the device. The suspect could be then facing charges for failing to comply with the notice and the charges relating to the substantive offence, the one which the suspect is being investigated for.
It is important you discuss any RIPA notice with a solicitor who can advise you in detail of how any failure to comply would specifically affect your case. PCD Solicitors are dealing with the forensic examinations of devices on a daily basis. If you require any advice as to how providing the police with passwords or PIN numbers could affect you, please get in contact with one of our lawyer for a free initial consultation.