What If The Police Request My Phone PIN?
Do I HAVE to give the police my phone PIN?
To put it simply, no you don’t. But in certain circumstances, there are potential consequences to saying no.
When can they ask?
It could be argued that the police could ask you at any given time for your PIN, but you can always say no. The most important issue is whether or not they can take further action if you say no.
When can they take further action?
Section 49 of the Regulation of Investigatory Powers Act 2000 contains the relevant power.
If your phone has been seized, or the police wish to inspect it, then they can give you notice that they require you to provide the PIN or “encryption key” to allow them access. The same rule applies to computers, tablets and other such devices.
Written permission must be obtained from a Judge or a District Judge for the giving of a notice under section 49, this then provides “appropriate permission”.
The person with “appropriate permission” requesting the information must believe, on reasonable grounds:
(1) that the key or PIN is in your possession;
(2) that the notice is necessary for the grounds listed below, 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
(3) the notice is proportionate; and
(4) that it is not reasonably practicable for the person to obtain possession of the protected information without the giving of a notice.
A notice is necessary (as in (2) above) if it is necessary:
(1) in the interests of national security;
(2) for the purpose of preventing or detecting crime or
(3) it is in the interests of the economic well-being of the UK.
What would “notice” be?
A notice must be in writing (or otherwise recorded), state what protected information it relates to, set out the grounds for requiring it (as above), specify the office, rank or position of the person giving it, specify the office, rank or position of the person granting permission for it to be given, specify the time by which the notice is to be complied with, and finally, what disclosure is required and how it is to be provided.
It is worrying how often people are given documents that leave the impression that they have no choice in giving over the passcode, when in fact the letters are nothing more than requests not authorised by any higher body – It is important to always seek the advice of a solicitor before complying with any request.
What if I do not know the PIN or still don’t want to give it?
Not complying with a properly given notice can lead to prosecution. If you know the information required, yet you refuse to provide it, the punishment may be a sentence of up to 2 years imprisonment or 5 years imprisonment for an offence involving national security or child indecency.
If you genuinely do not know the information you can put this forward as a defence to the offence.
The legislation says that a person will be taken as not being in possession of a key (or PIN) if “sufficient evidence of that fact is adduced to raise an issue with respect to it and the contrary is not proved beyond a reasonable doubt”.
What sentences have been given?
Andrew Garner failed to comply with a notice, he said that he had forgotten the PIN but was found guilty and given eighteen months imprisonment. Tajan Spaulding pleaded guilty after refusing to provide the PIN for his iPhones and was given eight months imprisonment. Stephen Nicholson was given 14 months imprisonment for failing to provide his Facebook password to the police during the investigation into the murder of Lucy McHugh.
How can we help?
Our expert and knowledgeable team are on hand to assist you should you wish to discuss any aspect of your case, we deal with all aspects of criminal and regulatory law. Please contact 0161 477 1121 or contact us for more info.
