Phone analysed for evidence in a different offence to the one originally seized

05 April 2021

Not reviewed after the date of publication

Question: 

A male is arrested for burglary and in the process a mobile phone is seized that belongs to him. He is charged to court and then we find out that the male is a suspect for an offence of handling stolen goods.

Can we analyse the phone for handling stolen goods even though the phone was not seized for that offence but was seized for the burglary?

Answer:

If the phone is lawfully in police possession having been lawfully seized as part of the investigation into the burglary offence then we are of the opinion that it is liable to interrogation if the police are now going to conduct an investigation into the suspect for handling stolen property.

Section 22(2)(a)(ii) of PACE  allows for the retention of property for the forensic examination or for investigation in connection with an offence:

"22(2) Without prejudice to the generality of subsection (1) above -

(a) anything seized for the purposes of a criminal investigation may be retained, except as provided by subsection (4) below -

(i) for use as evidence at a trial for an offence; or

(ii) for forensic examination or for investigation in connection with an offence;"

If the phone has been lawfully seized and is lawfully in police possession then an examination would be possible, without consent, under section 22 for forensic examination or for investigation in connection with the handling offence. If it is possible to download the contents of the mobile phone and use that copy as evidence, without needing to retain the phone itself, the phone will need to be returned to the owner (section 22(4) of PACE).

Even though the phone may have been seized during an investigation into one offence, this does not prevent it from being interrogated as part of an investigation into another offence where the phone has been lawfully seized and is lawfully in the possession of the police.

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