Can a special warning be given for the contents of a mobile phone?

26 July 2017

Not reviewed after the date of publication

Question:

Can we deliver a section 36 special warning in relation to the specific contents of a digital device recovered from a suspect's possession? For example, if a person has been arrested with a mobile phone containing incriminating text or social media messages, can a special warning be given in relation to the messages themselves if no account has been given?

Answer:

In our opinion a special warning would not apply in relation to messages/texts found on a mobile phone or other electronic devices, as they are only the contents of such a device, and as such the contents could not be considered to be a physical 'object' for the purposes of giving a section 36 'special warning'.

Depending on the circumstances, a mobile phone could be an object for the purposes of section 36 of the Criminal Justice and Public Order Act 1994, which puts an onus on a suspect to account for objects, marks or substances found on them at the time of arrest. But as stated, the contents of a mobile phone could not be considered to be an object.

Furthermore, under section 36(1)(b), the police officer must reasonably believe that the presence of the object (phone – not contents) may be attributable to the participation of the person arrested in the commission of an offence specified by the constable.

Therefore, when they are asked to account for the presence of the object (mobile phone in this case) they will account for the presence of the phone by stating that it is their phone. However, this would obviously be different if the object that they were in possession of was a stolen phone – in that case this would apply for the purposes of section 36.

Ultimately it would be for the court to decide as to what is an 'object' for the purposes of section 36. However, until a court provides further clarification on this matter, it would be wise to err on the side of caution and give the special warning in circumstances where objects, which are the subject of questioning, are in the 'possession' of the suspect. A Court will be much more critical if a special caution/warning is not given than in circumstances where it may be given unnecessarily.

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