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Criminal Defence Articles

Can Police track your phone in the UK?

With modern day advances in technology, sometimes it is hard to know if you are just being paranoid or if the police really can track your every move. It is true that smart phones capture a vast amount of data regarding our lives, and at the same time, the police’s technological capabilities to access data on mobile phones have also progressed. How much data are the police really able to obtain about you through tracking your phone? In this article, we answer this and several important related questions.

How much data can the police get from tracking your phone?

This depends on three main factors.

Firstly, have the police seized your phone or are you concerned that they may be tracking it remotely? Different types of data are available to the police in these different circumstances.

Secondly, how serious is the crime that is being investigated? In general, the police are only likely to intercept your communications remotely if you are suspected of a serious crime such as terrorism or child sexual abuse. However, if your phone is seized and may contain relevant evidence, it could be hacked by the police even if the crime is relatively minor.

Finally, what type of phone do you have? Modern iPhones are notoriously difficult for the police to hack, due to their advanced use of encryption. However older versions of iPhones and Android phones are typically easier for police to access.

Can the police access your phone remotely?

The police have access to technology that allows them to intercept your phone remotely, but they are not permitted to use it without a court warrant. In addition, the police can extract data that is being uploaded by your phone to the cloud. In some circumstances, they can access this information without your authorisation or knowledge. Alternatively, they can make a legal request to the cloud service provider.

The information stored by your phone in the cloud can be very revealing about your activities and movements. This is because it not only contains photographs, videos, and other important files that you may have chosen to back-up there. It could also contain metadata from the various different apps on your phone that, depending on your settings, could back up on the cloud automatically. An example of metadata is the information in respect of where a photograph was taken, and on what date and time.

Can the police hack your phone if it is seized in a search?

Where the police seize your mobile phone, they will often be able to use technology to extract its contents without you giving them your pin code. Whether this is possible depends on the type of phone that you have. New iPhones are difficult to hack, whereas older iPhones and Android phones are easier for the police to access. Mobile phones with SSD hard drives are more difficult for the police to hack because they regularly strip themselves of deleted data. Sometimes, the police outsource mobile phone extraction to private companies that then provide the extracted data to the police.

The Information Commissioner’s Office (ICO) has raised concerns that police forces are over-zealous in their approach to mobile phone extraction, leading to a situation where data is extracted unnecessarily. This impacts not only upon suspects, but also upon victims and witnesses. The ICO called for tighter regulation of mobile phone extraction.

A 2020 court case concerning mobile phone extraction relating to witnesses of sexual offences backed up the ICO’s position. Both cases concerned men convicted of sexual offences, who appealed on the basis of the way in which the disclosure obtained from mobile phone extraction was managed. The case highlights the huge volume of data that is produced as a result of mobile phone extraction – in one of the cases, there was over 40,000 pages worth of data extracted from the alleged victim’s phone. This then led to a challenge in respect of how to deal with this data in court. The police had conducted a key word search within the data to look for evidence of previous allegations of sexual assault made by the witness. However, the defence argued that the data should be disclosed in full. The court held that it was necessary to:

  • Identify circumstances in which it is necessary for investigators to seek details of a witness’s digital communications and clarify in what circumstances this information should be disclosed into criminal proceedings: The law says that the investigating officer must have ‘good cause’ to extract the data, and that it must be pursuant to a reasonable line of inquiry that is relevant either to the prosecution’s case or that of the defence. Investigators should not go on a fishing expedition for data. The examination of the mobile phone device belonging to a victim of a sexual offence is not always necessary in every case.
  • Determine how the disclosure should be reviewed: Where possible, the witness’ mobile phone should not be seized as this is an interference with their private life. If possible, the information should be downloaded or extracted from the suspect’s device instead. Search terms can be used to narrow down vast swathes of disclosure. The complainant should be kept informed with respect to the use that is proposed to be made of the mobile phone or other device and its contents.
  • Explain what should happen if the witness deletes information: If the witness refuses to allow the investigator access to their phone, the investigating officer should explore their reasons for this and explain the procedure that would be followed. If they maintain their opposition, the defence may make an application for a stay of proceedings on the basis that it is not possible to give the accused a fair trial. Similarly, if the witness has deleted data, depending on the timing and significance of the deletion, this could impact upon whether the defendant is capable of receiving a fair trial. However, sometimes the prosecution may be able continue with the case by using other evidence, such as witness evidence.

What are the police’s stop and search powers relating to your phone?

Contrary to what you may be led to believe, you are not obliged to hand over your phone during a routine stop and search. However, in spite of this, it is not unusual for individuals stopped by the police to be asked to present their phone. In some cases, a police officer might ask to see your phone or even take it without permission and start reading your messages. In those types of situations, it helps to know your rights. You are not obliged to hand your phone over unless you are arrested or the police officer produces a warrant. If a police officer asks for your pin code during a routine stop and search, you do not have to give it. There is an exception if you are suspected of terrorism offences, in which case the police have more extensive stop and search powers.

Is it a criminal offence to refuse to give your pin code?

It can be a criminal offence to refuse to give your pin code, but only where a Section 49 notice has been served. Under Section 49 of the Regulation of Investigatory Powers Act 2000, some branches of law enforcement can serve a notice upon you requiring you to disclose your pin code. Once the notice has been served, failure to provide the information requested can lead to you being prosecuted for a criminal offence. Where a Section 49 notice has been served, and you refuse to give your pin code, you could face a custodial sentence of up to two years. However this is only likely to take place where a serious crime is being investigated such as child sexual abuse, terrorism, or money laundering.

Local police forces such as the Metropolitan Police Service do not have the power to serve a Section 49 notice. You could receive one from one of the following law enforcement agencies:

  • The National Crime Agency
  • The Security Service (MI5 or MI6)
  • Her Majesty’s Revenue and Customs

If a Section 49 notice has not been served, you are not obliged to give the police any information including your pin code. This is part of your right to remain silent. In some circumstances, you may wish to grant police access to your mobile phone in order to exonerate yourself. In other cases, giving the police access to your mobile phone data could just add fuel to the fire. Your criminal defence solicitor will be able to advise you on the circumstances of your case.

Where to get further help?

If you are a suspect or a witness in a criminal case, and the police are seeking to extract data from your phone, make sure you know your rights. As a defendant, you are entitled to legal representation in your case. Your criminal defence solicitor can explain the rules surrounding disclosure and advise you on your options. Instructing a solicitor who understands the nuances of the system could make all the difference. Contact Stuart Miller Solicitors for a free no-obligation consultation today.

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