Can I be forced to give police the password to my phone or laptop? Our crime team, takes a look at the police’s powers when accessing electronic devices.
Police in England and Wales can formally demand passwords and unlocking codes to phones, laptops or any other electronic devices they have seized as part of an investigation. Whilst these requests can be refused, in certain circumstances this can constitute an imprisonable offence.
Ordinarily, if you are being investigated by police and an electronic device has been seized, police will simply ask you to provide the password in the first instance. At this stage, the choice is yours as to whether or not you comply.
What happens if I refuse the police’s first request?
If you don’t provide the password or unlocking code in the first instance, police may then decide to make an application to the courts for a formal notice, using their powers under Section 49 of the Regulation of Investigatory Powers Act 2000 (RIPA).
Before a judge grants the Section 49 notice, they must be sure on reasonable grounds that:
The password or unlocking code is in your possession;
- The notice is ‘necessary’;
- The notice is proportionate; and
- That it is not reasonably practicable to obtain the password without the notice.
When is a notice ‘necessary’?
A notice is only necessary if it meets certain criteria. The ‘catch-all’ provision means a notice can be necessary if it is for the purpose of preventing or detecting crime, which is ordinarily applicable during a criminal investigation. However, other grounds are available to police when applying.
For a notice to be validly served, it must contain several key pieces of information, including what the police want you to provide and the time limit for doing so.
What if I ignore the notice?
If a notice has been validly served and you do not comply, you may be prosecuted. Failing to comply with a RIPA notice is a criminal offence, with a maximum sentence of two years’ imprisonment.
However, this is not the only factor which needs to be considered when deciding whether or not to comply with a notice. Ultimately a decision must be made, weighing up the risk of being prosecuted for failure to disclose the requested password against whether any evidence found as a consequence of disclosing the password could further implicate you in the original offence being investigated. It’s therefore crucial that expert advice is sought when dealing with this issue.
What if I don’t know the password?
If you do not know the requested password, you may have a defence. However, the defences for failing to comply with a RIPA notice are narrowly defined and it’s important that you seek specialist advice as soon as possible if you think you may have a defence.
I have received a Section 49 notice, what should I do?
Our specialist criminal defence team are experts in advising and representing clients who have been served with RIPA notices.
It is becoming far more common for police to use these notices when someone has refused their first request for the password. Recent years have seen an increase in people being prosecuted for failing to comply with RIPA notices and there have been cases in which people have been imprisoned for failing to provide their passwords.
If you are being investigated for a serious offence and have been served with a RIPA notice, do not hesitate to contact our specialist team for advice and representation regarding this complex area of law.