What Happens If The Police Ask Me To Provide Them With My Mobile Phone PIN?

This question can arise at any stage of the criminal proceedings, often as early as at the police station, before or after interview.

As smartphones hold all our personal data, conversations, photos, financial records, and even location history, it’s no surprise that they can become crucial evidence in criminal investigations. This brings up the critical question of if the police ask for you phone’s PIN or passcode, are you legally required to provide it? Here is a look at the legal standpoint around your privacy rights and potential consequences.

The Legal Landscape

The relevant legislation is found in the Regulation of Investigatory Powers Act 2000. The starting point is that suspects/defendants are not under any obligation to provide the PIN for their devices. That is until a proper, effective Notice satisfying the elements under s49 RIPA 2000 is obtained from the Court and is properly served on the suspect/defendant.

Regulation of Investigatory Powers Act 2000 (RIPA), specifically Part III grants the police (and others) authority to request your data/ protected information when:

• It’s necessary for national security
• It’s needed to prevent or detect crime, or
• It’s in the interest of the economic well-being of the requiring the disclosure of protected information which they hold.

In this instance protected information in practical terms means evidence which we reasonably believe to be on a device which is protected by a PIN number, password or other (including biometric) lock.

In practice, if law enforcement have a reasonable suspicion that your phone contains information relevant to a crime, they can issue a formal notice compelling you to reveal your PIN or decrypt your device. This section 49 notice is a formal demand, and failure to comply with such a lawful notice can amount to an offence in itself for which a convicted suspect could be imprisoned.

If you are under a criminal investigation, especially whilst at the police station, the police serve a ‘warning notice’, not a proper s.49 Notice. Whilst it may be labelled as s.49 Notice, it may not necessarily amount to the notice that is required to trigger the risk of prosecution under for failing to comply with the request for information.

Whilst at the police station, it is normally an ‘advisory’ document which the police may ask you to sign. Signing the document confirms you received and acknowledge the notice, and it does not make them any more liable to prosecution. However, always seek legal advice on the effect of signing this document.

For police to compel you to hand over your PIN, several conditions must be met:

• Authority: A high-ranking officer must authorise the s.49 notice, and it must have approval from a Judge
• Clear Justification: they must demonstrate that there is a legitimate need for the information to be disclosed to proceed with their investigation
• Proportionality and Necessity: the request for your PIN must be proportionate to the investigation, meaning it should be a last resort if other methods have failed.

If these conditions are met, a s.49 Notice will specify the requested information (such as your PIN) and a timeframe for compliance.

Refusing to Provide your PIN: Legal Consequences

Refusal to comply with a s.49 notice can result in criminal charges under s.53 RIPA. Non-compliance can lead to:

• Imprisonment: you could face up to two years in prison, or up to five years if the case concerns issues of national security or child exploitation
• Financial penalty: You may also have fine imposed against you

There have been occasions where a suspect who is under investigation for a serious crime may elect not to assist the police in securing evidence which could potentially implicate themselves. The reason for this being that the potential sentence if convicted for the serious crime they are under investigation for, may exceed the one for failing to comply.

Defence

There are defences available for failing to provide your passcode, for example if a person can show that they are not in possession of the passcode to a device. Alternatively, they may argue that the statutory grounds in serving the notice are not satisfied. Such as the disclosure was not proportionate, or the police could go about obtaining the information in question by other means.

You may also be concerned about your rights to privacy. While the law allows police to access your device in certain cases, there are protections to prevent this being abused. Under Article 8 of the European Convention on Human Rights your rights to privacy is protected. Although this right can be limited if it’s deemed necessary to protect public safety or prevent crime.

When the Police Can Access Your Devices Without Consent

Under the Police and Criminal Evidence Act 1984, police are authorised to seize mobile phones during an investigation if they believe the phone contains evidence or has been used in a crime. Upon seizing a phone, police must:

• Issue a written receipt
• Inform the owner of the seizure reason
• Advise them of their rights to a receipt copy
• Advise them of their rights to have the phone returned after the investigation.

The police can hold onto a phone for the duration necessary for the investigation, which may include:

• Cloning or imaging the data
• Analysing the data
• Extracting evidence
• Returning the device to its owner

However, it’s important to remember that you have the right to legal representation during this process.

Conclusion

Ultimately, no matter the crime a suspect can choose not to comply with a s.49 notice. Many take this risk in the hope that the non-compliance will not be prosecuted. However, it is possible that the police may decide to prosecute the non-compliance and are still able to gain access to the material on the device using other avenues.

The legal requirement to provide your mobile phone PIN is conditional but strict under RIPA. If police have a legitimate need to access your device, you may be compelled to provide your PIN. Non-compliance is taken seriously, particularly in cases involving national security and child exploitation. Balancing your rights with compliance is crucial to understanding the law and seeking legal advice when faced with a s.49 notice is essential.

Remember, the law requires that investigatory powers be exercised in a legal, necessary, and proportionate manner. So if you are arrested and asked to disclose your PIN or passcode always seek legal advice first.

How can Hodge Jones & Allen Solicitors help?

Our criminal defence solicitors have dealt with a number of police station matters and complex cases. If you would like our team to represent you, please call 0330 822 3451 to discuss your case with one of our experts or request a callback.