When can the police keep your personal electronic devices during an investigation?

Mobile phones, laptops and other electronic devices can contain important evidence in a criminal investigation. Messages, photographs, emails, documents, location data and browsing history may all be relevant to an alleged offence.

However, the police do not have an unfettered right to seize and retain your electronic devices. They must have a lawful power to seize the device and a separate legal basis for continuing to retain it.

The main provisions governing these powers are found in the Police and Criminal Evidence Act 1984 (PACE).

When can the police seize an electronic device?

Under section 19 of PACE, a police officer who is lawfully on a premises may seize an item if they have reasonable grounds for believing that it is, or may contain, evidence relating to an offence and that seizure is necessary to prevent it from being concealed, lost, altered or destroyed.

This could include a mobile phone or laptop which officers reasonably believe contains evidence relevant to an investigation.

Section 19 does not, however, give the police a general power to enter premises. The officer must already be lawfully on the premises, for example under a search warrant, with consent, or using another lawful power.

Do the police always need to take the whole device?

Where relevant information can be copied or forensically imaged, it may not always be necessary to remove the physical device. PACE Code B provides that officers should consider whether a copy or image is sufficient and should retain the original only where this is necessary.

This can be particularly important where possession of the device is necessary for work or contains large amounts of personal information.

There will, however, be circumstances where the police need to take the device away for forensic examination, particularly where it is not reasonably practicable to identify or copy the relevant material at the scene. The reality in most cases is that, certainly initially, the device will be seized and an assessment will be made as to whether copies would suffice or whether the device is to be retained.

How long can the police keep your device for?

This is governed principally by section 22 of PACE.

Property seized under sections 19 or 20 can generally be retained only for as long as is necessary. This may include retaining it for forensic examination, investigation or use as evidence in criminal proceedings.

There is no fixed period for which the police are automatically entitled to keep an electronic device. The fact that an investigation is taking a long time does not, by itself, mean that the police can continue to retain your device indefinitely.

If a forensic image or copy is sufficient, there may come a point when retaining the physical device is no longer necessary.

Often, if proceedings are brought, the police will retain the device in case there is any dispute as to what is contained on it. If the defence require access to the device itself, this is usually facilitated by the device being released to a defence expert and then being returned directly to the police.

What if the police have taken your device after your arrest?

Section 32 of PACE gives the police powers to search an arrested person for evidence relating to an offence. Where the offence is indictable, it can also allow officers to enter and search premises where the arrested person was, or was immediately before their arrest, for evidence relating to that offence.

Section 32 is principally a search power. Any subsequent seizure of an electronic device must be supported by the relevant seizure power, such as section 19.

What happens if the police no longer need the device?

Where there is no longer a lawful basis for retaining the device, it should ordinarily be returned as soon as reasonably practicable.

PACE Code B states that property should not be retained where a copy or image is sufficient and that material which there is no power to retain should be returned after examination, subject to limited exceptions.

If the police have retained your phone, computer or another electronic device for a significant period, it may be appropriate to ask:
– Why was the device seized?
– What evidence is it believed to contain?
– Has it been forensically imaged?
– Why is it still necessary to retain the physical device?
– When is the examination expected to be completed?
– Could the device be returned while the police retain a forensic copy?

In some circumstances, there may also be legal routes available to seek the return of seized property.

Can the police access everything on your device?

Not necessarily. Electronic devices often contain highly private information, and there may also be material which is subject to legal professional privilege or other protections. Section 19(6) of PACE, for example, does not authorise seizure of an item which the officer has reasonable grounds for believing is legally privileged.

The scope of any examination will depend on the circumstances of the investigation and the relevant legal powers.

If the police have seized your phone, laptop or another electronic device as part of a criminal investigation, it is important to understand why it was seized and whether its continued retention is necessary.

Digital evidence can be highly significant in a criminal case, but the police must exercise their powers within the limits imposed by PACE and the relevant codes of practice.

If you are under investigation or have had an electronic device seized, specialist criminal defence advice can help you understand your position and, where appropriate, challenge the continued retention of your property.

At Old Bailey Solicitors, we are ranked Band 1 by Chambers and Partners for criminal defence. Our solicitors have extensive experience advising clients under investigation and dealing with issues surrounding the seizure, examination and retention of electronic devices. We can advise you on the circumstances in which the police can lawfully retain your property and, where appropriate, take steps to secure its return.

Whether the police have recently seized your phone, laptop or another electronic device, or have retained it for a significant period, our specialist criminal defence solicitors can advise on the police’s powers and whether there may be grounds to seek its return.

Contact our team of specialist solicitors today to discuss your situation in confidence, or call 020 7846 4999.