This must be one of the most common questions we are asked as Lawyers. More and more often the police are asking people to hand over their electronic devices and individuals are perhaps left with the impression that they are under an obligation to do so.
When the police suspect someone is involved in a crime, whether they’ve arrested this person or not, they’ll sometimes ask the individual to hand over their electronic devices such as phones, tablets and even laptops. In some cases, police officers will simply take the individual’s phone without their permission and look through it in search of any evidence they can use to incriminate them.
Can the police stop me and ask to look through my phone?
The police have a right to stop and question you at any time. However, in most cases you don’t actually have to stop or answer any questions. Providing there’s no actual reason for the police to think you’ve committed a crime, your refusal to answer questions can’t be used as a reason to search or arrest you.
Police officers have the power to stop and search you if they have ‘reasonable grounds’ to suspect you’re in possession of illegal drugs, a weapon, stolen property or something which can be used to commit a crime.
Whether the police have ‘reasonable grounds’ to suspect you’re involved in a crime or carrying any of the above items or not, they aren’t legally allowed to look through your phone unless you give them permission or they have obtained necessary legal documents relating to terrorism or child sex offences.
Can the police force me to give them my password?
If your phone is password protected, this gives you somewhat of a protective barrier in the event of your arrest or police questioning.
During your arrest, the police will caution you and say “you do not have to say anything”. Not only does this protect you from having to answer police officers’ questions, it also means that you don’t have to disclose your phone’s password or any social media login details if requested.
However, problems could arise if you’re being investigated for terrorist activity or sexual offences against children.
If served with a S49 Regulation of Investigatory Powers Act 200 (S49 RIPA Notice), you’ll be legally required to provide passwords to open electronic devices. Failure to do so is a criminal offence that can result in between two to five years imprisonment for cases involving national security or child indecency. This type of notice cannot be issued by regular police officers and must be given by specialist officers.
According to schedule 7 of the Terrorism Act 2000, police, immigration and customs officials have the power to detain people at borders and request any information they wish. They can do this even if they have no proof that the individual is involved in a crime.
What type of data can be used against me?
You may be surprised by the sheer amount of data that you have on your phone, laptop and social media accounts. Modern mobile phones are not just phones, they’re also mini computers, cameras, calendars, recorders, diaries and albums.
Once the police have access to these devices, they can learn everything about you from the videos you’ve been watching online to the things that made you argue with your ex partners.
This information could be used to incriminate you. For example, the police might use your GPS data to determine how fast you were travelling before a collision. They might use location data to identify whether or not you were at the scene of a crime when it happened. They can even retrieve deleted photos from years ago.
In a post called Electronic Devices and Law Enforcement: What You Need To Know, one of our lawyers, Jonathan Wall explained that people often assume that there’s nothing incriminating on their phone, only to find that there is information relating to different crimes than they’re initially being investigated for. He wrote: “A person might be arrested for a drugs offence and the police discover other data such as video or GPS data showing that they have driven dangerously and vice versa somebody may have been arrested following a road traffic collision and police discover an involvement in drugs.”
If I am a victim of crime can the police take my telephone?
We are also regularly asked whether the police can take a mobile phone if someone is the victim of crime.
Similarly the answer is not without your permission however if the police believe that the phone or other device may contain evidence to support your allegations they may seek your permission to examine it to support your assertions.
What should I do if the police are trying to access my phone?
The fact you’re reading this post is a great start. We often speak to clients who have already handed their devices and login details over to police officers because they thought that they had to. Rather than automatically complying with the police officers’ demands without question, we’d advise getting in touch with one of our lawyers so you have access to the best legal representation.