Do I Have to Provide my PIN to the Police?

Do I have to provide my Pin to the police?

A close up of a cell phone with a lot of apps on it.

You have been arrested, the police have attended your home or place of work with a search warrant allowing them to enter the relevant premises, search for potential evidence and to seize it for examination. If the commission of sexual offences is suspected, then it can be almost guaranteed that some if not all of the items seized will be electronic such as; phones, tablets, computers, hard drives, cameras and USB devices, all of which may be password protected. You can then be faced with the dilemma of whether or not you provide your passwords/PIN to the police, and if you even have to by law.

During the search or upon arrest the police may casually ask you for the PIN or passcode to a device, but it is important that you understand your rights and entitlements surrounding this area of police investigation.

When might the police want my PIN or passwords?

Common sexual offences that warrant the need for access to electronic devices for examination include:

Obtaining the PIN or passcode from you may make it easier and much quicker for the police to gain access to any relevant evidential material, it may also prove your innocence much quicker too. It is therefore important the decision as to whether to provide your PIN is carefully considered with the involvement of your lawyers.

Providing your PIN to the police will allow them access to the device for them to search the content and recover any incriminating evidence.

There is no guarantee that the police would be able to override the PIN to a device, at Eventum Legal we have dealt with many cases where the police haven't had the most up to date technology to break into certain devices.

Do I have to Provide My Pin to the Police

In short the answer to this question is no, unless the police have obtained an order from the court under s.49 of the Regulation of Investigatory Powers Act 2000. Therefore, when the police arrest you, execute a warrant or request the password from you in police interview you do not have to provide it, you are under no obligation to assist the police in their investigation by providing potential evidence against yourself.

If you are certain that there may be evidence on the device that assists your defence, then discuss this with a lawyer. This can arise for example in a case of rape whereby there may be text message evidence which supports your defence of consensual sexual intercourse, or no intercourse at all took place.

What is a S.49 RIPA Notice?

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.

What happens if I do not give my PIN or password to police?

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.

Sentence for Failing to Adhere to a Court Order

A defendant convicted for an offence of failing to provide the required information and therefore, failing to comply with the S.49 Notice could be liable to a prison sentence of up to five years where the original offence concerns allegations of child sexual abuse, or national security threats. This therefore applies to offences such as possession, making, distributing of indecent images of children, sexual communications with a child, inciting a child to engage in sexual activity and grooming to name a few.

How can Eventum Legal help you

At Eventum Legal we practice solely in defending allegations of a sexual nature, and domestic violence allegations which often intertwine with each other. Almost all of our clients at some stage in their case will have a device seized with the intention of the police or NCA being to forensically examine it. We therefore understand and continuously develop our knowledge of the intricacies in this area of law, the rights of the police and most importantly the rights and entitlements to our clients.

If you have had an electronic device seized contact us today to discuss what steps the police may take, and whether at this stage you are required to consider providing your passcode or PIN to the police.

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