Is it a crime to withhold access?
Our phones contain communications and location data, and often are linked to our finances. Given this, accessing the contents of a suspect’s phone can often prove very useful for the police when investigating a person’s suspected involvement in a criminal offence.
But – must you give access?
The short answer is no. The police cannot make you disclose your PIN/password to them, however, under certain circumstances not disclosing it can become a criminal offence.
The Police Approach
The police can seize property from an individual and retain it for as long as it is of interest to them in an investigation, or in an on-going case. The police are entitled to attempt to access the contents once seized, and this can include employing PIN-cracking software.
Using such software can often take months, and so the police will routinely simply ask a suspect for their PIN. This will often happen during what can be a stressful interview under caution, for those unrepresented.
Increasingly, police officers warn suspects that failing to disclose their PIN at demand could mean that they are charged with a separate criminal offence and face imprisonment. In aid of this, the police will often ask suspects to sign a document to say that they understand this warning. This can understandably be quite alarming, particularly when a suspect is unfamiliar with the experience and the document they are presented with.
The reality is the document which police officers routinely present to suspects is often misleading and has no legal status.
The Law
Section 49 of the Regulation of Investigatory Powers Act 2000 (‘RIPA’) gives the police the power to issue a notice to a person requiring that they disclose their PIN or password, however, and crucially, they need permission from a judge.
Armed with this permission, the police can demand a person disclose their PIN, and section 53 makes it an offence for failing to comply with such a notice.
What happens if you don’t comply with a notice?
Being convicted of failing to comply with a notice could mean a custodial sentence of up to two years, or five years in circumstances connected with certain sexual offences.
How we can help?
If you are arrested, or invited to attend an interview at the police station, it is essential that you are represented. Your lawyer will be able to identify a ‘police warning notice’ from an authentic section 49 notice, and discuss with you your options.
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