Can I be prosecuted for failing to provide my password to the police?

Posted: 27 October 2022

The police are entitled to seize and retain property for no set period of time during their investigation. They are also permitted to attempt to access the contents of a device they have seized which may include using a PIN cracking software. This software often takes months and is ultimately unsuccessful. Therefore, the police may routinely ask the suspect for their PIN to the device. A suspect is within their rights to refuse this request but should be aware of the potential consequences of doing so.

Regulation of Investigatory Powers Act 2000

The Regulation of Investigatory Powers Act (RIPA) was originally introduced in 2000 as an anti-terrorism measure but has increasingly been used in the investigation of a variety of criminal offences. Section 49 of RIPA affords the power to serve a RIPA notice which compels a suspect to disclose their password, allowing the police to access any electronic device and potential evidence within.

When can the police serve the notice?

If a suspect was to refuse to provide their PIN in interview, then section 49 of RIPA gives the police the power to issue a notice which requires the suspect to disclose their PIN or password if necessary.

The police must obtain appropriate permission from a judge to obtain a s.49 RIPA notice.

Before a judge grants the notice, they must be satisfied that:

1. The key to the protected information is in the possession of the person given notice.
2. Disclosure is necessary in the interest of national security, in preventing or detecting crime or in the interests of the economic wellbeing of the UK.
3. Disclosure is proportionate.
4. If the protected information cannot be obtained by reasonable means.

Do I have to comply with the notice?

You are not compelled to provide your password to the police in any instance.

However, section 53 of RIPA makes it a criminal offence not to comply with the terms of a s.49 notice which is punishable by up to two years imprisonment and up to 5 years imprisonment in cases involving national security and child indecency. Therefore, failing to comply could lead to a criminal conviction and imprisonment.

There have been occasions where a suspect who is under investigation for a serious crime may elect not to assist the police in securing evidence which could potentially implicate themselves. The reason for this being that the potential sentence if convicted for the serious crime they are under investigation for, may exceed the one for failing to comply.

Cases of prosecution for non-compliance.

Although prosecutions for failure to comply with a s.49 notice are rare, they do occur. Stephen Nicholson was sentenced to 18 months imprisonment for failing to provide his Facebook password to the police during a murder investigation of a schoolgirl. Tajan Spalding was sentenced to 8 months imprisonment for failure to provide his password during a drug investigation, the police ultimately took no further action in the drug investigation.

Defence

There are defences available for failing to provide your passcode, for example if a person can show that they are not in possession of the passcode to a device. Alternatively, they may argue that the statutory grounds in serving the notice are not satisfied. Such as the disclosure was not proportionate, or the police could go about obtaining the information in question by other means.

Advice

Ultimately, no matter the crime a suspect can choose not to comply with a s.49 notice. Many take this risk in the hope that the non-compliance will not be prosecuted. However, it is possible that the police may decide to prosecute the non-compliance and are still able to gain access to the material on the device using other avenues.

If you are arrested, invited to attend an interview or served with a section 49 RIPA notice it is important that you seek legal representation or advice. THB Solicitors will be able to ensure you make an informed decision based on the circumstances of your case. For advice or representation, please contact us on 01268 792994 or 01245 493959 or make an enquiry here.