27 August 2019
Written by: Ruth Hartley, PNLD Legal Adviser
Not reviewed after the date of publication
Forensic examination of mobile telephone data has played a fundamental role in criminal investigations for many years. However, steady developments in technology combined with privacy concerns have meant that this particular area of policing has become increasingly complicated. Despite such complications, mobile data examinations are still, and are likely to remain, a vital investigative tool.
In this article, PNLD Legal Adviser, Ruth Hartley, answers questions regularly posed by officers, clarifying the extent of and restrictions to the powers available for the seizure and subsequent examination of mobile phones.
Can mobile devices be examined as part of a stop and search?
There is a common misconception that mobile devices may be examined by officers during a stop and search, however that is incorrect. If a mobile device is located during a lawful stop and search, it is open to officers to ask an individual to prove ownership of the device – however that is the extent of their power. Officers should only be examining mobile devices that have been lawfully seized.
Whilst an individual may not have any issue with an examination taking place, even providing their consent for the examination to take place, carrying out such an examination without a power but with consent is problematic in many ways. Not only is this is acting against the safeguards and principals that have been put in place to regulate the examination of digital evidence, any material generated through this form of examination is at risk of being excluded on the grounds of fairness under section 78 of the Police and Criminal Evidence Act 1984 (PACE).
Additionally, if an officer wishes to examine communication data held on a device, an authority must be in place under section 22 of the Regulation of Investigatory Powers Act 2000. Obtaining an authority is a lengthy process and not something that can be achieved during a stop and search, with most forces requiring the completion of a document by a specialist department and subsequent endorsement by an Inspector.
Can mobile devices be seized during a stop and search?
This depends on the relevant circumstances and the power being relied upon to conduct the stop and search.
For example, if an officer stops an individual under section 23(2) of the Misuse of Drugs Act 1971, due to suspicions that an individual is in possession of a controlled drug, they have the power to seize anything that appears to be evidence of such an offence under the Act. If drugs are found, it may be that it is appropriate to seize any phones also found as there is likelihood that the items could be linked. In the absence of drugs, we would suggest that officers should exercise caution in relying on this provision to seize mobile devices.
A similar rationale should be applied when conducting a stop and search under section 1 of PACE, where an officer has reasonable grounds to suspect that an individual has obtained or is in possession of a stolen article. Whilst there is nothing preventing officers from seizing a mobile device under this provision, they must have formed a genuine suspicion that that the phone is stolen before seizing it.
Do officers have the power to seize devices from witnesses?
The common law power of seizure cannot be used to seize a phone from a witness, as this may only be exercised when an individual is suspected of committing the offence or is implicated by some manner in the offending, as outlined in the case of Ghani v Jones (1969).
A witness may consent to you viewing the phone, but if he or she refuses to let you take the phone, or to transfer any evidence from it, it is unlikely that an officer would be able to seize it at that time and they would have to apply for a warrant.
If a warrant cannot be obtained, section 19 of PACE may be considered, but only as a last resort. This is due to communications issued by the National Police Chief’s Council who have stated that section 19 cannot be used to seize a witness’ mobile phone, unless it is absolutely essential and a consent form is completed. This was due to concerns that the section was being overused and it is now advised that the section should only be used when all other avenues for seizing the device have been exhausted and failing to seize a device would mean that offending was likely to go unpunished. In addition, it should be noted that the use of section 19 will only be available in scenarios where the officer is lawfully on premises and it does not provide any power to search.
Do officers have to return devices when requested to do so by their owner?
Where a mobile device has been seized from an individual who is not suspected of criminal wrongdoing (such as a witness or victim) retention of the phone for examination could be justifiable due to paragraph 5.7 of the Code of Practice for the Criminal Procedure and Investigations Act 1996, which states that:
‘all material which may be relevant to the investigation must be retained until a decision is taken whether to institute proceedings against a person for an offence.’
In our view, this could cover the retention of a phone owned by an innocent individual (such as a witness), for the purpose of convicting a separate individual (the suspect).
In the same way, section 22(2) of PACE states that an item may be retained for use as evidence at a trial for an offence, or to be forensically examined in relation to an offence – again, there is no mention that the owner of the item must be the suspect in relation to the offence, and so this could justify the retention of a phone belonging to an individual who is not suspected of any criminal involvement in the matter.
However, where a copy can be made of any item that has been seized, section 22(4) of PACE requires the return of the original material to its owner. Mobile phones are not excluded from this requirement.
Do all phones seized as part of an investigation have to be examined?
Guidance issued by the Crown Prosecution Service (CPS) and guidance by the Association of Chief Police Officers state when a mobile device is seized as part of an investigation it does not have to be examined as a matter of course.
This guidance was recently approved and endorsed in the case of R v E (2018), where proceedings had originally been stayed, after a failure to seize and examine a mobile belonging to one of the complainants was deemed a loss of material so serious, that it undermined the entire proceedings. CPS sought to appeal against the decision, pointing out that the guidelines for dealing with electronic devices / digital material state that even where devices have been seized, there does not exist an automatic assumption that they must be downloaded and examined.
Instead, whether to download an item is a decision that must be made on a fact-specific basis, based on a consideration of whether it would be viewed as a reasonable line of enquiry in the context of the relevant case. The Court of Appeal agreed with this, overturning the decision and approving the CPS guidelines.
Therefore, a record detailing the justifications made surrounding the download and examination of mobile devices should always be completed by the officer in the case, with assistance from the designated Digital Media Investigator. This record will act as a safeguard in case any decisions made during an investigation are questioned.
What action can officers take when a device has been seized, but an individual refuses to provide their password for examination?
Even in circumstances where a phone has been lawfully seized and forensic examination is due to take place, an individual may still frustrate the investigation by refusing to provide their password. In a practical sense, most forces have a digital forensics or a high tech crime unit that will be able to assist in bypassing any password restrictions. There are also specialists in the field who are able to provide advice and practical assistance regarding access.
Many forces are now also choosing (with the support of the CPS) to prosecute individuals who attempt to frustrate the criminal justice process. The most commonly prosecuted offences are:
Obstructing a constable - section 89 of the Police Act 1996
The offence of obstructing a constable is committed when a person prevents a constable from carrying out his duties or makes it more difficult for him to do so. Whilst the motive for such action is not relevant to the offence being made out, any obstruction must be willful, imposing a requirement that the accused must have been acting in a deliberate manner.
Arguably, a deliberate obstruction can easily be made out through a refusal to unlock or provide a password for a phone, especially where in circumstances where it is likely to contain evidence that is relevant to the offence.
The case of Rabbani v DPP (2018) provides an example of an individual being convicted of the offence where they refused to provide the password for their device. Although Rabbini sought to appeal against his conviction, the case has since been to the Supreme Court and the conviction upheld, which is likely to encourage further prosecutions of the offence in these circumstances.
Failure to disclose an encryption key – section 49 of the Regulation of Investigatory Powers Act 2000 (RIPA)
In circumstances where an individual is refusing to provide their password, this may amount to a failure to disclose an encryption key under RIPA.
Section 49 provides that a written notice may be served on that individual, ordering them to disclose the ‘key’. This power is exercisable when there is protected information (i.e. electronic data that cannot be accessed). Notices must be authorised by the National Technical Assistance Centre and are likely to be deemed unlawful if not authorised.
If an individual fails to comply with a notice, they will have committed an offence under section 53 of RIPA. This is an indictable offence, whereas obstructing a police officer is a summary only offence.
Mobile devices should not be examined during a stop and search.
Officers may however be permitted to seize mobile devices during a stop and search.
Phones can be seized from witnesses but the specific power relied upon to do so will be dependent on the circumstances.
A consent form should be completed if phones are submitted as evidence voluntarily by victims or witnesses.
Officers may be able to justify the retention of mobile devices if they are relevant for a future trial.
However, if a copy can be made, the phone may need to be returned to the owner.
There is no obligation on officers to examine all phones seized during an examination.
Criminal offences may be committed in circumstances where an individual purposely impedes a criminal examination by failing to provide the password for their mobile device.
What is clear following an examination of the law relating to the seizing and examining of mobile phones, is that with the development of technology and an increase in information being stored digitally, the current legislative framework is unlikely to stay static for long.