Author: Adrian Ramdat BA Ed, PGCE – Specialist Trainer
Jun 2023
In this article, I wanted to look at a more recent case that relates to RIPA and mobile phones. The case was heard by the Investigatory Powers Tribunal (IPT) and therefore the judgement should be adhered to.
The case for consideration today is KJF v Surrey Police (2022)
This case examines a very interesting and important issue. Are the police permitted to ‘break into’ a mobile phone which has been lawfully seized under a search warrant issued under section 8 of the Police & Criminal Evidence Act 1984 (PACE)?
The argument raised by the complainant was that although the police are in lawful possession of the phone, as it was seized under the terms of the search warrant if they want to examine the contents of the device then they must obtain an authorisation under the Regulation of Investigatory Powers Act (RIPA) 2000 or the Investigatory Powers Act (IPA) 2016.
Their case was that if the police fail to obtain an authorisation, they will have acted unlawfully and potentially could expose themselves to criminal liability under the Computer Misuse Act 1990 or IPA 2016.
Interestingly during the investigation, the complainant, KJF was asked formally and informally for the PIN number to the device but refused to do so.
Without going into the depths of the case and the judgement I wanted to get to the part which will affect how investigators go about this in future.
The conclusion of the IPT was that the PACE power authorises the downloading of the phone… BUT the legal reasoning differs according to the precise circumstances in which the downloading takes place. I will summarise these below:
PACE permits the interrogation of a disconnected mobile phone in precisely the same way that it permits the seizure and removal of a locked safe or filing cabinet. In such a case the contents of the safe or filing cabinet be examined later at the police station once it has been opened and its contents removed. If we follow this analogy then the phone can lawfully be examined once it has been seized under the PACE power, as long as it is disconnected from the network.
Different statutory provisions apply where the mobile phone remains connected to the telecommunications system, because the interrogation of the device then constitutes interception, owing to the extended definition of “interception” in the IPA. However, it is rendered lawful without further authority by virtue of s. 6(1)(c)(ii) of IPA:“is in the exercise of any statutory power that is exercised for the purpose of obtaining information or taking possession of any document or other property”.
I think this case is extremely useful when law enforcement personnel across the spectrum are seizing mobile phones (or other devices) under various statutory powers as it gives a clear judgement from the IPT that as long as there is a clear lawful basis, there is no need for an authorisation under RIPA or IPA.
