21 June 2021
Not reviewed after the date of publication
Does asking a suspect for the PIN number to a mobile device during a search, constitute an interview in accordance with Code C 11.1A?
Unfortunately, the relevant legislation or guidance fails to provide any specifics regarding what is deemed to be 'good practice' regarding the request of a PIN numbers for suspect devices. In our opinion, whether the request for a PIN/passcode could constitute an interview will depend on the circumstances of each case and whether establishing knowledge of the PIN number could amount to evidence of involvement in an offence. However, we are unclear what other purpose the police would have for requesting the PIN numbers seized during a search in the circumstances you provide.
Officers need to be confident as to what constitutes an interview and when to administer the caution. PACE, Code C, paragraph 11.1A defines an interview as 'the questioning of a person regarding their involvement or suspected involvement in a criminal offence or offences which, under paragraph 10.1, must be carried out under caution.' If you are not asking questions in order to prove an offence, you don't need to caution at that stage and a recording will not be required.Should the decision be made to arrest the suspect, charge them or inform them that they may be prosecuted, then they must be cautioned. A caution is generally not required when questions are asked:
Solely to establish their identity.
To establish the owner of a vehicle.
To obtain information in accordance with a statutory requirement (e.g. the power to require a driver to state their date of birth).
To determine the need to search or to seek co-operation while carrying out a search.
To seek verification of a written record (e.g. notes taken by the officer).
In relation to procedures under section 7 of the Road Traffic Act 1988.
The case law surrounding this subject has highlighted the problems that have arisen when considering what is and what isn't an interview.
For example, in the case of Batley v DPP (1998) it was confirmed that in circumstances where an officer had asked a question with the clear intention of obtaining an admission, with the officer making notes in his pocket book – the courts would view this as constituting an interview.
In the case of CPS v O'Shea 1998, an officer asked 'An accident has just happened that is alleged to be your fault. Were you driving your vehicle at the time of the accident?' O'Shea replied 'Yes.' This was held to be an interview because the purpose was not just to identify the driver but to solicit a reply which could be incriminating.
Whereas, in other cases where an officer has been invited by a suspect to listen to his account, the court ruled this did not amount to an interview. The court implied that if the suspect had instead been invited by the police to give an account and had not volunteered to do so, subsequently making admissions, then such circumstances would likely constitute an interview.
On this basis, and taking into account how the courts have interpreted the case law, it is our view that in some circumstances, solely asking an individual to confirm their PIN number may not constitute an interview and this could be seen as a person complying with the officers during a search to achieve an administrative process. However, where establishing knowledge of the PIN number to a device could amount to evidence of involvement in an offence, as is likely to be the case in the circumstances you provide, we believe that asking for the PIN numbers could constitute an interview.
Therefore, whether this type of request constitutes an interview will be fact specific to each individual case and should any challenge be made, it would ultimately be for a court to decide.
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