Do I have to give police access to my phone?
For many of us mobile phones have become an essential tool that we rely upon on a daily basis for tasks including storing information, keeping our schedules, providing us with directions, accessing the internet and allowing us to communicate with others via calls, messages and emails. For this reason, phones have increasingly become a common source of evidence for police investigating criminal matters.
Our lawyers commonly receive questions from clients regarding in what circumstances police can require a person to allow access to their phone, just how far these powers stretch and what rights people have to refuse access.
When can police take possession of mobile phones?
There are a number of circumstances in which police are lawfully able to take possession of a person’s mobile phone.
One common circumstance where this occurs is when this is done with consent of the owner of the phone. It is not uncommon to have police simply ask a person if they can have a look at their phone without giving a formal direction or requirement. If a phone is provided to police voluntarily, often this will remove any question of whether police have acted lawfully in accessing information contained in the phone.
This also extends to a circumstance where police request a person provide them with ‘access information’ such as a pin code or password to access the information within the mobile phone.
Another circumstance where police can take possession of a mobile phone is when a person is arrested. Police have the power to search a person when they arrest them and to confiscate property the person has with them at the time. This can include a mobile phone that a person has with them at the time of their arrest.
Police also commonly take possession of mobile phones when the phone is located during the execution of a search. View more information on police search powers.
Can police require me to provide them with access to the information stored in my phone?
There are some circumstances where police are given the power to require a person to provide access to their mobile phone and information or assistance necessary to access the information within the mobile phone.
Section 154 of the Police Powers and Responsibilities Act states that when a search warrant is issued by a Judge or Magistrate, the issuer may include an order in the warrant requiring a specified person to do any of the following in relation to a digital device:-
(a) give a police officer access to the device;
(b) give a police officer access information for the device or any assistance necessary for the officer to gain access to device information from the device;
(c) allow a police officer to—
(i) use access information for the device to gain access to device information from the device; or
(ii) examine device information from the device to find out whether the information may be relevant evidence; or
(iii) make a copy of device information from the device that may be relevant evidence, including by using another digital device; or
(iv) convert device information from the device that may be relevant evidence into documentary form, or another form, that enables the information to be understood by a police officer.
The order can also state that a specified person is required to do anything mentioned in subsection (1)(b) or (c) in relation to a device removed from the place, after the device has been removed.
The order must state:-
- The time at or by which the specified person must give a police officer the assistance or information;
- The place where the specified person must provide the information or assistance;
- Any conditions to which the provision of the information or assistance is subject; and
- That failure to comply with the order may be dealt with under the Criminal Code section 205A.
Section 154A allows for a Magistrate or Judge to make a similar order in relation to a device that has been seized under a search warrant after the device has been seized. However a Magistrate or Judge can only make an order under section 154A if satisfied there are reasonable grounds for suspecting that device information from the digital device may be relevant evidence.
Section 178A of the Police Powers and Responsibilities Act and sections 88A and 88B of the Crime and Corruption Act allow for similar orders to be made in relation to devices seized from a crime scene and searches carried out by officers of the Crime and Corruption Commission.
What can happen if I fail to comply with an order to provide access to my phone?
A person who fails to comply with an order to provide information or assistance in respect of a digital device risks being charged with an offence under section 205A of the Criminal Code.
Section 205A creates the offence of contravening order about device information from digital device.
This section makes it an offence for a person to, without ‘reasonable excuse’, contravene an order made under section 154, 154A or 178A of the Police Powers and Responsibilities Act, or section 88A or 88B of the Crime and Corruption Act.
This offence is punishable by a maximum penalty of 5 years imprisonment.
Subsection (2) states that it is not a reasonable excuse to contravene the order on the basis that complying with the order might tend to incriminate the person or expose the person to a penalty.
What is a ‘reasonable excuse’ for failing to comply?
Section 205A itself is largely silent on what constitutes a ‘reasonable excuse’ for failing to provide the information or assistance sought by the order. The only guidance provided in this section is that not providing the information or assistance on the basis that doing so could see a person incriminate themselves does not constitute a ‘reasonable excuse’.
This issue was considered by the Queensland Court of Appeal in the decision of Commissioner of Police v Barbaro. In that decision the court made the following comments about the concept of a ‘reasonable excuse’ for section 205A:-
- The excuse must be objectively reasonable (that is, the average person would consider it reasonable);
- Whether an excuse is reasonable will depend upon the particular facts of the case and the statutory context in which the word reasonable is used; and
- Although it doesn’t need to be the only reason why the person did not comply with the order to provide information or assistance, the asserted ‘reasonable excuse’ must actually be the reason a person withheld the information or assistance.
Ultimately in Barbaro the Court of Appeal found that the fact that the device in question contained privileged legal communications was a ‘reasonable excuse’ for the purposes of section 205A. However the court was careful to point out this will not always be the case and every situation must be considered on its facts.
So what does this all mean?
The law around mobile phones and the powers of police to seize and require access to them is complicated.
To ensure that you are enforcing your rights while not exposing yourself to prosecution for a criminal offence you should seek legal advice from a criminal defence lawyer when requested to provide your phone or access information to police.
Contact us immediately to discuss your rights
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