Nowadays, our smartphones play an unprecedentedly important role in all of our lives. They contain a wide range of private and professional information, from family photos to our Google search history. As a result, it’s natural to be concerned at the prospect of someone else going through your phone, especially the police.
While we’re regularly exposed to scenes of phone hacking in popular culture, a lot of people may be wondering – can the police actually go into your phone and read your text messages? The answer is yes, but only in certain circumstances.
When can the police take my phone?
The police are allowed to take and keep a hold of any property that they believe may be relevant to an investigation, including a mobile phone, under the Police and Criminal Evidence Act 1984. The police merely need to believe that the phone contains information relevant to an investigation – if you’re a suspect, then it’s a reasonable assumption for the police to make. Your phone can also be taken from you if the police believe that there’s a direct connection to a crime, such as if it was used to commit a criminal offence.
Am I legally required to give the police my password?
While the police have the power to confiscate your phone from you, in most cases you are not legally required to provide them with your password. As a result, while they may have your phone, they won’t be able to read your text messages unless they can find another way of gaining access.
However, in certain cases, you can be legally required to provide your password. If the police can prove that they need the password in order to prevent a crime, or if it’s pertinent to national security, they can apply to a judge for written permission to serve you a notice under section 49 of the Regulation of Investigatory Powers Act 2000.
Failure to provide your password after being served a section 49 notice can result in a prison sentence of up to two years, however, it’s still your choice as to whether you provide it or not. This choice must be made based on certain details with the assistance of your criminal defence solicitor, details which we cover later on.
Can the police read my text messages if I don’t give them my password?
Even if you don’t give the police your password, there are still some other methods with which they can attempt to read your text messages and enter your phone.
Phone tapping
With an appropriate court warrant, police are able to remotely tap your phone, and intercept a wide range of data. This includes being able to listen to the calls you make, read your text messages, and analyse other data.
While the police can apply to get a court warrant to remotely access your phone, this is considered to be a major privacy infringement, and they must be able to show that they are able to justify the phone tapping. Such permission is generally only granted in the most serious of cases, such as in cases involving human trafficking, terrorism, or child sex offences.
Communication service providers
If they can get a warrant, the police can force your communication service provider to give them your phone data. This will generally include information related to your texts and calls. While it’s possible that the information is encrypted, the police will often be able to decrypt the information. The police can also demand access to more general information, such as the time and location of various calls and texts.
MPEDs
The police are also known to attempt to force entry into a phone using mobile phone extraction devices. The success of these attempts is varied, and it will depend on the security measures you have in place, and the kind of phone that you have. Iphones are notoriously tricky to hack, however, certain Androids may be easier. The police may try to do this themselves, or they may also outsource to an external tech firm.
Should I provide the police with access to my phone?
It is very rarely a good idea to provide the police with access to your phone. If you are the subject of a criminal investigation, whatever they find in your phone will be used to strengthen the existing evidence against you. This applies even if you’re innocent – something as seemingly innocuous as a text sent to a friend about an unrelated topic can be taken out of context and used as supporting evidence. The data they extract will provide them with insights that they would not have otherwise had access to, allowing them to strengthen their prosecution.
Even when served with a section 49 notice, it’s possible that it will still be in your interest to withhold your password if there is incriminating evidence in your phone. This will mostly be relevant if the police have a weak case against you without your text messages, and the result of being found guilty would mean that you faced a prison sentence in excess of 2 years.
In all cases, it will be necessary to seek the advice of a criminal defence solicitor, who can weigh up the positives and negatives to make an informed decision on which course of action is in your best interest.
Seeking legal advice
If you believe that the police may be accessing the content in your phone, then it’s likely that it’s in connection to potentially serious criminal activity. It’s important that you seek the legal advice of a qualified and experienced criminal defence solicitor at the earliest opportunity available, to ensure that you can develop a legal defence if necessary.
Your solicitor will also be able to ensure that the police have acted lawfully in attempting to gain access to your phone, and help to make sure that you have been treated justly by the legal system at all times.
Call us now on 0161 234 0020 (Manchester) /0203 053 8625 (London) / 07956 555979 (24 hour) if you require further advice or need to speak to a solicitor.
