In Brief
If your phone has been seized by the Police as part of a criminal investigation, there is no time limit to how long they keep it. If, upon the conclusion of your case, it is determined that your phone contains criminal material, then the Police can also choose to destroy your phone. In some instances, you can request your phone to be returned early. Seeking advice from a criminal defence solicitor will ensure that you’re treated fairly throughout the Police’s investigation.
When can the Police seize your phone?
The Police are entitled to seize your phone in the following circumstances:
- Following an arrest. After being arrested, if the Police have reasonable ground to believe the device contains evidence of an offence or was used to commit one.
- With a search warrant. A warrant allows the Police to enter a property and seize relevant items in relation to a criminal investigation.
- Search without a warrant. When it comes to serious matters where immediate action is necessary, for example sexual or domestic offences, the Police may have the powers to enter a property and seize items without obtaining a warrant in advance.
- With your consent. The Police may ask you to hand your phone over voluntarily.
When the police have taken your phone the question everybody asks is how long can they actually hold on to it for? The honest answer is there’s no real limit. Depending on the case and how long it lasts it could be months, it genuinely could be years.
If you’ve been released on bail after an interview they can keep it until either charged or the case gets dropped and if you’re charged and the phone’s being used as evidence they can hang on to it right up until the conclusion of the trial, which could be a long way down the line. And in some cases, you might not get it back at all. And if they find illegal material on it or it’s been used to commit crime, they can actually destroy it instead.
So if your phone’s been taken and you’re not sure where you stand, that’s generally worth getting advice on quickly.
How long can the Police keep your phone for?
There is no limit to how long the Police can hold onto your phone for investigation, it depends on the duration of your case. If your case concludes at the Police Station, then it may only be a matter of weeks or months. However, if your case proceeds to Court it could be several years.
The length of time that the Police have your phone can depend on:
- The priority of your case
- Whether you provide passwords/PINs to access your phone
- The backlog of evidence to analyse
- The type and volume of evidence required
- Any requests to third parties to access the data on your phone
In some instances, the Police can choose not to return your phone. If they find illegal material on it, they may see fit to destroy your phone instead.
The Police are entitled to destroy your phone at the conclusion of a case if:
- Illegal material is found on it, for example indecent images of a child or any stolen data
- They believe that the phone was purchased using money which was acquired from criminal activity (proceeds of crime)
- It was used to commit or facilitate a crime
- The phone was stolen
Do you have to give the Police your phone password?
You are not necessarily obligated to provide your phone pin or password to the Police, however doing so may speed up the investigation process.
It is common for officers to request your PIN or password after you’ve been arrested which may be in the form of a written request. However, at this stage it is not a legal obligation to provide your password.
In some cases, the Police can serve a formal notice under Section 49 of the Regulation of Investigatory Powers Act 2000 (RIPA). This is a formal request for the PIN number, password or encryption key and permission to issue the Notice must be by an appropriately authorised person (in some cases this can include a Judge) which requires you to hand over your password or risk prosecution.
If a Section 49 has been served and you fail to provide the information without a lawful excuse, you could then be charged with an offence under section 53 of the Regulation of Investigatory Powers Act 2000. If convicted, the offence carries a prison sentence of either up to 2 years or potentially up to 5 years if the case involves national security or indecent images of a child.
Can you request to have your phone returned?
You may be able to request to have your phone returned to you but only in certain circumstances, for example:
- If you need it for personal or business reasons
- If the Police have completed their forensic analysis and it’s no longer necessary for them to keep it.
How can Lawtons help?
If you have been arrested and your phone has been seized by the Police, it is important to seek advice from a specialist solicitor. At Lawtons, we specialise in defending clients against criminal charges and will work tirelessly to ensure your rights are protected. Contact us today for expert help and advice.
