The Implications of Being Served With a S49 RIPA Notice

Being Served With a S49 RIPA Notice

Originally introduced in 2000 as an anti-terror measure, the Regulation Investigatory Powers Act (RIPA)  has increasingly been used by Police investigating a broad range of criminal offences through compelling a suspect to disclose a password or key used to access a phone, computer or any service accessed through an electronic device.

What are the grounds which allow the Police to serve a notice?

Section 49 provides the power to serve a RIPA notice requiring a suspect to disclose a password or code allowing access to electronic data. This means the Police can serve a notice if:

• The key, password, code is in the possession of the person given notice.
• Disclosure is necessary in preventing or detecting crime.
• Disclosure is proportionate.
• The protected material cannot be obtained by other reasonable means.

Do you have to comply with a RIPA notice?

Having been served with a RIPA notice setting out the disclosure requirements, does a suspect have to provide their password, code, key allowing the Police access to their seized phone, computer or social media account such as facebook?

The answer in short is no. However, section 53 of RIPA makes it a criminal offence to not comply with the terms of the section 49 notice punishable with imprisonment of up to 2 years, up to 5 years in cases involving national security or child indecency. So, failing to comply could lead to a criminal conviction and imprisonment.

It is a defence for a person to show they are not in possession of the password, key or code or to argue that the statutory prescribed grounds in serving the notice are not satisfied, for example the disclosure request is not proportionate or the material could be obtained by other reasonable means.

A suspect must be advised that failure to comply with a s49 RIPA notice is a criminal offence which could result in imprisonment if convicted. However, deciding whether to comply may not be a straightforward. The suspect may be under investigation for a serious criminal offence, the punishment for which would exceed that available for not complying with the notice requirements. The suspect accordingly may elect not to assist the Police in securing evidence which could result in the Prosecution of a serious offence.

Choosing not to provide disclosure

No matter the crime, the suspect may choose not to provide disclosure, irrespective of the type of crime under investigation, with a view to the Police not securing evidence. The risk being taken in the hope the notice non-compliance is not prosecuted. This would be a significant risk, especially if a decision is taken to prosecute the non compliance and the Police in any event are able to access the password protected  data.

It is always important to seek legal advice when served with a s49 RIPA notice. It can be a difficult decision and the implications for the suspect must be carefully considered based on the circumstances of each case.

Contact our criminal defence solicitors

For any advice regarding RIPA notices, please get in touch with our team of criminal defence solicitors in by visiting one of our offices in Brighton, Horley or London or by filling in our online enquiry form.