It is not uncommon for us to place protective passcodes on our electronic devices to ensure our information is safe and to stop others from gaining access to it. However, when we are under police investigation and a forensic examination of our devices is required, the police can request passwords to be provided to allow access to the device. This blog explains the grounds which allow the police to request such information and the implications of not providing access.
The police are likely to require access to a suspect’s device when investigating a broad range of criminal offences in the UK. PCD Solicitors often see that phones, iPads, laptops, and even e-readers are seized by police who are investigating a sexual offence. This offence may involve indecent images,rape,sexual communications with a child, orgrooming offences.
Under theRegulation of Investigatory Powers Act 2000 (RIPA), police can compel suspects to disclose their password or PIN code to access the data on their phone or another electronic device. This legislation was originally introduced as an anti-terrorism measure, but the scope for its use has widened in recent years to include a variety of criminal offence investigations.
Read on to learn what you should know about providing your phone password to the police if they request it, and what could happen if you do not comply.
Which grounds allow the police to serve a notice under RIPA?
Section 49 of the Act provides the police and other law enforcement bodies with the investigatory power to serve a suspect with a legal notice.
This notice requires the suspect to disclose a password or code allowing access to the device they have seized and the electronic data stored on it.
If the suspect refuses to disclose the password or access code when requested by police in the first instance, they are likely to apply to a judge to serve an RIPA notice.
The following circ*mstances may warrant the issuing of a Section 49 notice:
- The key, password, or code is in the possession of the person given notice.
- Disclosure is necessary to prevent or detect criminal activity.
- Disclosure is proportionate to the investigation of the offence.
- The protected material cannot be obtained by other reasonable means.
For a judge to grant the serving of a Section 29 RIPA notice, the notice must meet these conditions, and explain in writing which information the police require access to and the time limit for the suspect to provide the requested password or code.
Do you have to comply with a RIPA notice?
In short, the answer to this question is no. You have the right to not provide your phone password or device access code to the police even after receiving a RIPA notice. However, failing to comply with a police officer’s request could result in prosecution.
While there may be no immediate legal consequences for failing to provide a password at the interview stage, Section 53 of RIPA makes it a criminal offence to not comply with the terms of a valid Section 49 RIPA notice once it has been served.
Failure to comply with a police officer notice could result in a person being sentenced to a term of imprisonment of up to 2 years, and up to 5 years in cases involving national security or child indecency. RIPA non-compliance could therefore lead to a criminal conviction and a lengthy prison sentence.
Many suspects of a criminal offence may be confused as to whether there are any consequences of refusing to give the police passwords to their devices – especially when disclosing passwords could give police access to evidence that implicates them.
It is therefore extremely important that you discuss any RIPA notice you receive with a solicitor, who can advise you based on the particular facts of your case to ensure that your choices do not harm your potential future defence.
What happens if I don't know my password when the police ask for it?
Since you have the choice to not provide requested passwords or PIN codes to the police, you may decide to deny that you have knowledge of this information.
If you genuinely do not know or remember the password, you could use this as a legal defence for not complying with a RIPA notice, though you should seek specialist advice.
However, even if you are unable to provide the password, modern technology means it may still be possible for the police to access your phone without your co-operation.
Can police get into a locked phone?
Unless the data on the phone is encrypted, the police can still access the information lawfully using specialist software. However, the police would usually warn a suspect that they could potentially damage the device in doing this.
If you back up your phone data through cloud storage, the police may also be able to access this remotely without needing to unlock your device physically.
In cases where there is a serious risk to national security or child safety, for example, the police may also be granted powers to use digital forensics procedures to extract even encrypted data. This could include messages, contact details, photographs and videos, and more.
Any incriminating data extracted from your phone during the investigation may be used as evidence against you if you are charged with a crime and taken to court.
Is there a defence for 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 prove that they are not in possession of the password, key, or code, then this could be presented as a defence.
It would also be a defence if a person could successfully argue that the statutory prescribed grounds in serving the notice are not satisfied. For example, if the material could be obtained by reasonable alternative means or the disclosure request was not proportionate.
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 for which could exceed that for not complying with the RIPA notice requirements. Therefore, it may be in their best interests not to 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 alleged crime, does not want to assist the police – taking the risk that potential evidence would not be recovered and a prosecution avoided. This is a considerable risk to take, especially if the police are eventually able to access the material on the device anyway.
The suspect could then face separate charges for failing to comply with the notice in addition to the charges relating to the substantive offence that the suspect was originally being investigated for.
What to do if you are served a RIPA notice
If you receive a RIPA notice, it is essential that you discuss the matter with a solicitor who can advise you in detail of how any failure to comply would specifically affect your case.
At PCD Solicitors, we deal 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 contact one of our lawyers for a free initial consultation.
It is in your best interest to secure expert legal representation as soon as possible, so you may want to call us if you have been arrested or invited for a police interview before a Section 49 notice becomes a possibility, as decisions taken at this stage can affect the eventual outcome of your case.
For advice on police powers to unlock your phone and your rights to refuse access, get in touch with PCD Solicitors by calling 0151 705 8488 or emailing [email protected].
