Request for phone code during police search not unfair
An occupier of a house being searched under a warrant, who has not been arrested, does not require to be given access to legal advice before responding to a request from the police to provide a PIN or password for electronic devices found during the search, the Criminal Appeal Court has held.
Lord Justice General Carloway, Lord Pentland and Lord Matthews gave the decision in refusing an appeal by Barry McLean against a sheriff's decision to repel an objection to evidence of images found on a Samsung phone being led at the appellant's trial.
Police had obtained a warrant to search the house occupied by the appellant and others, on a narrative of suspected offences under the Civic Government (Scotland) Act 1982. Officers attending at the house included two from the cybercrime unit, whose task was to triage any electronic devices found, i.e. decide whether they should be retained, or if no incriminating material was found, to return them to their owner.
The appellant and two others present were cautioned. The search proceeded and the phone was found under his bed. He admitted it was his. He was asked for the PIN and provided it. Graphic moving images of child abuse were found on it. The police retained the phone. The sheriff found that provision of the PIN had not been critical to the inquiry and the cybercrime unit could probably have got past its security.
The basis for the objection, and the argument on appeal, was that the appellant had been a suspect, had not been free to leave the premises, and was being questioned with a view to eliciting an incriminating reply. In these circumstances, he had been entitled to access to legal advice.
Giving the opinion of the court, Lord Carloway said that the Criminal Justice (Scotland) Act 2016, s 44 made it clear that the point at which a suspect is entitled to access to legal advice is when that person is “in police custody”; i.e. after their arrest. "There is no right to be informed of any right to access legal advice unless a person is in police custody. A suspect who is not in custody, and who is thus at liberty, is already able to access that advice."
After noting that while the appellant was a suspect in a general sense, he could not have been charged without evidence of possession of the relevant images, he continued: "The police are entitled to make requests outwith the confines of the police office which are designed, not to elicit an incriminating reply to a charge, but to progress their inquiries. In the context of a search under warrant, that will include being able to ask persons to open lockfast places or to provide the necessary keys or combinations to do so or, as in this case, to provide PINs or pass codes to enable access to devices which fall within the scope of the search warrant."
If legal advice had been obtained, it would likely have been that if the appellant did not provide the PIN, the phone would be seized and its security probably be overcome at the laboratory, failing which a notice might have been served to require disclosure of the PIN. "In these circumstance, the court is not persuaded that the result of obtaining legal advice would have been that the images would not have been recovered. In the event, none of this arises since the appellant volunteered his PIN when he was not under any coercive circumstances."
No unfairness arose and the appeal was refused.