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28/02/24

Extraction of Information from Electronic Devices in Criminal Proceedings

Extraction of Information from Electronic Devices in Criminal Proceedings
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The developing reliance of Society upon the use of digital devices such as mobile phones, laptops and computers generally, has resulted in a great volume of material being stored in such devices by way of, for example, text messages and pictures, becoming available to potentially provide evidence in Criminal Investigations and Prosecutions.

Amid a range of additional provisions, The Police, Crime, Sentencing and Courts Act 2022 (‘the Act’) introduces clear guidelines for circumstances where authorised persons may obtain and extract information from electronic devices which is relevant to the investigation being undertaken.

It is recognised that victims and witnesses must feel confident, when reporting crimes and assisting the police, that their privacy will be protected, and they will be treated with sensitivity and dignity.

The Court of Appeal judgment in R v. Bater-James [2020] EWCA Crim 790, recognised the need to avoid unjustifiable invasion of an individual’s privacy while also achieving the overriding aims of the Criminal Justice System.

In recent years, the enormous volume of material that has fallen to be examined and disclosed, arising from extraction from digital appliances, has created problems with the ‘Disclosure’ process during criminal prosecutions, particularly in relation to fraud investigations. Major Trials have been abandoned because of the process not being conducted fairly, including the manner in which material has been extracted from devices.

Within the realm of unacceptable conduct has been, for instance, prosecution evidence containing a mass of data which has not been properly examined, if examined at all, containing details of personal information and conduct, that has no relevance to the prosecution of the alleged criminal offence.

John Veale delineates several of the provisions of the Act providing the new regime for extracting information in criminal investigations.

The Relevant Law

An Authorised Person is entitled to exercise the extraction of information designed to:

  • prevent crime
  • detect crime
  • investigate crime
  • prosecute crime
  • locate a missing person
  • protect a child or an at-risk adult from neglect or physical, mental, or emotional harm

An Authorised person is defined in Schedule 3, Part 1 of the Act and includes a:

  • constable of a police force in England and Wales
  • member of staff appointed by the chief officer of police of a police force in England and Wales
  • National Crime Agency Officer
  • person who has been engaged to provide services consisting of or including the extraction of information from electronic devices

The Act provides:

Section 37 – Extraction of information from electronic devices: investigations of crime etc.

An authorised person may extract information stored on an electronic device from that device if:

  • a user of the device has voluntarily provided the device to an authorised person, and
  • that user has agreed to the extraction of information from the device

The power can only be exercised for the purposes of:

  • preventing, detecting, investigating, or prosecuting crime,
  • helping to locate a missing person, or
  • protecting a child or an at-risk adult from neglect or physical, mental, or emotional harm.

The Section provides guidance to the authorised person which includes:

  • for criminal investigations:
    the authorised person must reasonably believe that information stored on the device is relevant to a reasonable line of enquiry which is being or is to be pursued.
  • when locating missing persons or protecting a child or vulnerable person from harm:
    the authorised person must reasonably believe that that the information stored on the device is relevant to that purpose.
  • in any case:
    the authorised person must be satisfied that exercise of the power is necessary and proportionate to achieve the desired purpose.

The Section also provides guidance for when the authorised person believes that, in exercising the power, there is a risk of obtaining information other than that required.

Section 38 Application of section 37 to children and adults without capacity

Children.

A child is not to be treated as being capable of:

  • voluntarily providing an electronic device
  • agreeing to extraction of information from the device.

In such cases, a parent or guardian of the child or, if the child is in the care of a relevant authority or voluntary organisation, a person representing that authority or organisation may voluntarily provide the device and the agreement to the extraction of information from it.

The authorised person must still ascertain the views of child, taking into consideration the child’s age and maturity.

Adults without capacity.

Similar guidelines to the above apply, although voluntary production of a device, coupled with agreement to extract information, may also be provided by:

  • a registered social worker,
  • someone with a Power of Attorney or
  • another user of the device who has capacity.

Section 40 Application of section 37 where user has died etc.

An authorised person may exercise the power in section 37 to extract information stored on an electronic device even though:

  • the device has not been voluntarily provided or
  • no user has agreed to the extraction

in circumstances where any of the following conditions is met:

  • a person who was a user of the electronic device has died, and the person was a user of the device immediately before their death or
  • a user of the electronic device is a child or an adult without capacity, and an authorised person reasonably believes that the user’s life is at risk or there is a risk of serious harm to the user or
  • a person who was a user of the electronic device is missing, the person was a user of the device immediately before they went missing , and an authorised person reasonably believes that the person’s life is at risk or there is a risk of serious harm to the person.

Who Can I Contact for Advice & Help?

The KANGS team offer an enormous wealth of experience concerning extraction of material from electronic devices, its relevance in the pursuit of Criminal Prosecutions and the extent to which it may be presented before any Criminal Court.

KANGS has represented clients involved in some of the major White-Collar Criminal Prosecutions where the Trial has been abandoned through failure in the Disclosure Process.

We welcome enquiries as follows:

Telephone: 0333 370 4333
Email: info@kangssolicitors.co.uk

We provide an initial consultation at our offices in London, Birmingham, or Manchester.

Hamraj Kang

Hamraj Kang
Senior Partner

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John Veale

John Veale
Partner

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