Do I Have to Provide my PIN to the Police?

A S.49 RIPA Notice imposes a disclosure requirement on the person in possession of the relevant information. A person with the power to obtain the notice such as a police officer, National Crime Agency or other investigatory body must make an application to the court, and does so on the basis that it is one of more of the following: 

1. necessary on grounds that: 

(a)it is in the interests of national security;

(b)for the purpose of preventing or detecting crime; or

(c)in the interests of the economic well-being of the United Kingdom.

2. Necessary for the purpose of securing the effective exercise or proper performance by any public authority of any statutory power or statutory duty.

3. That the imposition of such a requirement is proportionate to what is sought to be achieved by its imposition, and

that it is not reasonably practicable for the person with the appropriate permission to obtain possession of the protected information in an intelligible form without the giving of a notice under this section, the person with that permission may, by notice to the person whom he believes to have possession of the key, impose a disclosure requirement in respect of the protected information.

The most common reason in cases concerning sexual offences, or domestic violence offences is for the purpose of preventing or detecting crime. 

Prior to the police obtaining an official notice from the court or Superintendent of the police, they may give a s.49 RIPA warning, this is most likely to be given in a police interview, or in writing to the accused. The warning has no legal effect without being made formal. 

If you have been served with a warning or an informal request for passcodes, you are not obliged to provide them. It is only important to consider the consequences when the request is made formal and a s.49 RIPA Notice is served upon you. 

Failing to comply with a formal notice could result in a prosecution for not only the original offence being investigated, but an additional offence of failure to comply with a notice contrary to S.53 of the Regulation of Investigatory Powers Act 2000. 

When prosecuting a individual for this offence the court or jury will have to be sure that the person accused was in possession of a passcode to any protected information at any time before the time of the giving of the S.49 notice, that person shall be taken for the purposes of those proceedings to have continued to be in possession of that key at all subsequent times, unless it is shown that the passcode was not in their possession after the giving of the notice and before the time by which he was required to disclose it. 

Therefore it a defendant can show that they did not know the password at any time, then it can be a defence. However, strong evidence would be required, it may be that the police have seized a very old device and it can be shown that the device has not been in use for a considerable period, and therefore it may be quite credible for the accused to say they no longer remember the passcode. 

There can be tactical reasons for your lawyers advising you not to provide the password, it could be that the original offence carries a much longer term of imprisonment than the offence of failing to adhere to the S.49 notice. It is important to discuss this with a lawyer should your case fall into this category as it must be a very carefully considered decision with reference to all legal implications that could arise for you.