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Prosecuted for your password

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The police in England and Wales have the power to demand the password to access your phone, laptop or any other electronic device. If you refuse to hand over this information then you could be committing a criminal offence.

The law which allows the police (or other authorities) to do this is the controversial Regulation of Investigatory Powers Act 2000 (RIPA). S.49 is the relevant section which came into force in 2007.

The police are able to request disclosure if the reason is to prevent or detect crime, if it's in the interests of national security or if it is in the interests of the economic wellbeing of the UK. This definition can be applied very widely to the extent that it can cover any crime, no matter how minor.

Refusal to comply with a notice served under s49 of RIPA can result in a maximum sentence of two years imprisonment, or five years in cases involving national security or child indecency.

Schedule 7 of the Terrorism Act 2000 has also been used by the police to compel the disclosure of passwords, such as in the recent case of Muhammed Rabbani who refused to hand over his passwords after being stopped at Heathrow Airport. This Act allows police and immigration officials to stop, search, question and detain anyone at British ports and airports to determine whether they were involved in the "commission, preparation or instigation of acts of terrorism" - with or without reasonable suspicion. Rabbani argued that his devices contained confidential information on an alleged victim of torture by American agencies, and that sharing it would breach "personal and professional" privacy. He stated that he had never been under suspicion of any kind of terrorist activity; he had simply been profiled whilst coming through the airport. However, he was found guilty and sentenced to a 12 month conditional discharge.

Although there have been a lot of stories in the press about this law, it does not seem to have been used frequently in the last few years. In the year 2014-2015, 37 s49 notices were served which resulted in only 3 convictions. However, use of the power is definitely on the rise.

In September 2017 a man was sentenced to 36 weeks in prison for failing to give the police his iPad password. He had originally been sentenced to 18 months for making indecent images of children and perverting the course of justice. Another man was sentenced to 8 months imprisonment in 2016 for refusing to hand over the passwords to his iPhone and iPad, he was initially arrested for supply of class A drugs and money laundering. Neither of these original offences resulted in a criminal conviction.

The law was originally intended as a counter-terrorism measure, however, it is now being applied very widely. We recently represented a client who was threatened with a s.49 notice in relation to an allegation of HMRC fraud. The problem with this is that there could be a completely disproportionate result if someone is imprisoned for not providing a password but not the crime they are originally under investigation for, of which they might be innocent.

Contact Saunders Law Solicitors London

The threat of a s.49 notice under RIPA can be sprung at you in the early stages of a criminal investigation which is why it is very important that you are being advised by a solicitor. It is often the case that the police will try to encourage you to hand over your passwords without serving the official notice. If you have any concerns about the effect of this law please contact our crime department on 02076324300 or complete our online enquiry form to see how we can assist.

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