The chances are that you are reading this article (unless out of pure curiosity) because:
- You have already been interviewed by the police and you have been asked to hand over your PIN number so that they can access the content of your phone, or
- You have been invited in for an interview and you are worried that the police will ask you when you get to the station to hand over your PIN number.
If you fall in to the first category, and you haven’t yet given the police an answer, or if you have already said no, you will have been given a document by the police advising you that you may be committing an offence if you refuse. This documentation is misleading and confusing and needs to be very carefully scrutinised. Closer inspection of the wording of the document reveals that a suspect is not being told that an offence has already been committed by the initial refusal, or by not giving any indication as to whether consent will be given, but simply that an offence ‘may’ be committed in the future if, upon a formal request being made (which needs to be authorised), you continue to refuse.
So what does this mean?
Well, the blunt answer is that you do not have to give your phone PIN number to the police but, in certain circumstances, any refusal ‘may’ result in criminal prosecution. If you have been asked to provide your phone PIN and you are yet to respond to the police on this, call us today to get some advice.
What is the law?
The law is contained in the Regulation of Investigatory Powers Act 2000 (RIPA) and gives the police the authority make the request.
However, it is a misconception that any early refusal to the police or a failure to answer the police on the request there and then is immediately a criminal offence. It is not. In the absence of consent, the police have the authority simply to give you notice that they require you to hand over the PIN or access code to allow them to access the material on your phone. It should be noted that the law is the same if a request is made concerning computers or tablets.
So what happens if I refuse or don’t answer the police?
If the police want to pursue their request in circumstances where there has been an early refusal or where no answer is given at all, the police are required to obtain permission from a judge to give the suspect a written notice formally requesting the suspect to hand over the PIN or code to allow access. The judge granting the permission would need to be satisfied that:
- that the key or PIN is in the suspects’s possession
- that the notice is necessary in the interests of justice, for the purpose of preventing or detecting crime, in the interests of the economic well-being of the UK or it is necessary for the purpose of securing the effective exercise or proper performance by any public authority of any statutory power or duty
- the notice is proportionate, and
- that it is not reasonably practicable for the person to obtain possession of the protected information without the giving of a notice.
Any notice needs to be in writing setting out the full details as to why the phone or device PIN or code is required. The notice will have to abide by other conditions concerning the information it must contain, and importantly must include a date by which time the request must be complied with.
What if I do not know the PIN or still don’t want to give it?
Any failure to comply with a properly given notice can result in criminal prosecution and can carries a maximum of 2 years imprisonment (5 years imprisonment for an offence involving national security or child indecency). If a suspect simply does not know the code or PIN, then they will have a defence, as you cannot hand over what you do not know or what you do not possess.
In any such case, we strongly advise seeking immediate legal advice, as the consequences of refusing can result in a prison sentence, and so it is very important that any requests are treated seriously and discussed with a qualified lawyer who understands the legislation and can properly advise you as to all relevant legal requirements and obligations.
For more information or to discuss your case with a specialist defence lawyer, please contact us in London (West Drayton) on 01895 449288 or in Hertfordshire (St Albans) on 01727 840900 or by email via our contact page.