The Police have my phone. Do I have to give the Police my phone PIN, Passcode or Password?

If the police seize your phone or other devices, you might be asked to provide the password or PIN to enable officers to review the contents of your device. The police must follow strict processes in order to compel somebody to hand over access to their devices, including service of a section 49 RIPA Notice.

What does all of this mean for you, and do you need to give the police the password to your phone?

Our mobile devices are increasingly personal to us, often containing all of our most private and personal data. It is understandable that you might not feel comfortable with providing a police officer your password so that they may review, clone or extract your personal data. The relevant law which governs whether you are required to disclose your PIN is contained in sections 49 and 53 of the Regulation of Investigatory Powers Act 2000 (RIPA).

Although a request or demand for your PIN may sound serious or intimidating, you are generally under no obligation to provide the police with your passwords. You may be required to if the police obtain a Section 49 RIPA Notice from the Court and serve this on you. This can only arise in strict circumstances where the following applies:

1. The PIN is in your possession;

2. Obtaining the PIN and accessing the device is necessary for preventing or detecting crime;

3. Obtaining the PIN and accessing the device is proportional to the investigation;

4. The protected material cannot be obtained by other means.

The police often hand suspects notice setting out the powers that they have in compelling them to hand over passwords and PIN numbers. What is often overlooked is that, more often than not, this notice is not itself a s49 RIPA Notice. It is instead a document warning the suspect that the police may obtain a s49 RIPA Notice. As such, there is no legal requirement at this stage to provide the requested information, however, unrepresented suspects often feel intimidated into complying at this early stage.

To add to the ‘panic’ a suspect might feel when being handed a document such as this, the police may ask that they sign the document to confirm they have received and understood it. You do not need to sign this document. This is simply a warning and is not legally binding at this stage.  

 

I have been served with a full s49 RIPA Notice – what next?

The Notice will set out what information is being sought, the grounds for the request, the rank of the individual serving it, the rank or position of the person who granted permission for it to be served, and the time by which the Notice is to be complied with.

You do not have to comply with a RIPA Notice, but section 53 of RIPA makes failure to comply with a Section 49 Notice a criminal offence, which could result in prosecution. You could face a sentence of up 2 years’ imprisonment, or 5 years if the investigation concerns child indecency or national security.

Can the Police access my devices without my password or PIN being provided?

If you fail to comply with a Section 49 RIPA Notice and the police strongly believe that there is material on your device which is important in relation to a criminal offence, they can force entry into the device.  This may damage the device itself, and it is not always successful.  The police employ the services of specialist lab technicians to access the data held on the device, and when done by force this may result in the damage or complete loss of the data and even the device itself.

In some cases, the police may attempt to force access to the data without pursuing the RIPA Notice channels, as part of any investigation into alleged criminal offending.

I have been charged with failing to comply with a RIPA Notice. What should I do?

There are a number of defences available to those who have been served a RIPA Notice and your Solicitor can help you in advancing arguments against any allegation of failing to comply.

Not knowing the device PIN can be raised as a defence to the Notice. In addition, if the material could be obtained through other means, such as by downloading the complainant’s device, then you could argue that the grounds for the Notice are not satisfied.

It is always important to speak to a legal representative if the police ask you for the password to one of your devices to ensure you understand your rights and obligations. It is best to do this at the time the request is made by the police for your password or PIN, but you may (and should) still seek representation after you are charged with a criminal offence. At Hallinans, our Solicitors are experienced in dealing with these matters and are poised to assist should you require expert advice and representation.

Speak to a Legal Expert today

Legal disclaimer: Articles are intended as an introduction to the topic and do not constitute legal advice. The information contained herein is accurate at the date of publication but please note that the law is ever changing and evolving. If you require advice in relation to any matter raised in this article please contact a member of the team.