Not reviewed after the date of publication - 22nd November 2021

Question:

Two murder suspects are in police custody and are failing to provide the pin code for the mobile phones. Can we charge them with an offence? 

Answer:

Assuming the phone has been lawfully seized, section 49 of RIPA provides that a written notice may be served on an individual, ordering them to disclose the ‘key’ to the protected information (pin codes for their phones). Section 53 of RIPA provides for the offence of failing to comply with such a notice. 

A key is defined under section 56 of RIPA as: 

‘in relation to any electronic data, means any key, code, password, algorithm or other data the use of which (with or without other keys) –
(a) allows access to the electronic data, or
(b) facilitates the putting of the data into an intelligible form’

The ‘RIPA - Investigation of Protected Electronic Information Revised Code of Practice (2018)’ provides further guidance on the scope of the above power.  
 

Paragraphs 3.18 and paragraphs 3.19 further define a ‘key’:

‘3.18 A key to data means any key, code, password, algorithm or other data (including any proprietary software or cryptographic process) the use of which, by itself or with another key or keys:
• allows protected electronic data to be accessed, or 
• facilitates putting protected electronic data into an intelligible form. 

3.19 All manner of material can constitute a key. A key can be a plain language password or pass-phrase. It can include, for example, words, phrases or numbers written on any form of paper, plastic cards bearing numbers, electronic chips or magnetic strips and all forms of removable or fixed media for storing electronic data. It can include intangible material, for example, sounds or movements or comprise biometric data derived from, for example, fingerprint readers or iris scanners. Equally key material can be retained in the memory of an individual.’

Therefore, where a person refuses to comply with a notice of this type, the police could take action and pursue a prosecution for that offence alone. It is not dependant on the original offence being investigated.

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