The Police Won’t Return My Devices

As all of our lives become more heavily digitised, we depend on our devices to an unprecedented extent. It is often said that a search of somebody’s mobile phone is more intrusive than a search of their house. For this reason, law enforcement (police) see electronic devices as a goldmine. While this risks the privacy of those involved in investigations, it creates an even more significant problem for those of us who depend on electronic devices to live our lives. Even if you have not been charged with a criminal offence, police have a broad power to seize electronic devices as evidence, and don’t appear to be giving them back without a fight.

As anybody who has lost a phone or had a laptop stolen can attest, ordinary life is, for better or worse, significantly more difficult without electronic devices. Our relationships with friends and family live on smartphones. Our livelihoods often reside on hard drives. So when police hold onto them for too long, even if there is some reason for doing so, it can be hugely disruptive. But can you do anything about it?

What is the law?

Police are entitled to seize devices (and other property) in connection with investigations, under section 19 of the Police and Criminal Evidence Act 1984 (PACE). For this to be lawful, the officer seizing the device must believe honestly and reasonably that it contains evidence relating to a criminal offence, or has been obtained in the process of committing an offence. If they do this without a good reason, or hold onto the equipment unnecessarily, then this may amount to wrongful interference with goods.

However, even if the police do have a good reason for seizing the device, you may still have a claim for its speedy return to avoid further interruption to your life whilst an investigation is pending. This is because section 22(5) PACE explicitly bars the retention of property for investigation where a copy would be sufficient. The police’s awareness or compliance with this rule appears unreliable, so it could be highly worthwhile to bring to their attention.

This is where electronic devices are slightly different to other property. Where the information on the device is the concern, rather than the device itself, it will generally be the case that a copy of this information would be sufficient. It is arguable that only where forensic analysis of the device itself was required (such as needing to conduct DNA testing to try to determine who has physically used the device) would the police have a genuine interest in retaining it.

It is unclear exactly what currently technology allows police officers to do when trying to sweep files off of a device. But where this is possible, then it avoids the need for retention of that device. This may vary depending on what the device is. For example, only rarely will there be a legitimate interest in retaining any part of a computer beyond the hard drive. Mobile phones and tablets are slightly more difficult, as extraction software is a fairly recent development and it may not be possible to ‘sweep’ specific data from a mobile device. However, in principle, if the data can be removed and copied then you are entitled to the return of your device.

What can you do?

Informal

Start by contacting the head investigating officer on the case. You can emphasise their obligations under PACE, and emphasise your willingness to cooperate in providing the files, media or data they need. Often, demonstrating awareness of your rights can help to secure the return of your property.

If this is insufficient, then you can file an official complaint with the relevant police force: details of police forces are available here. You can do this online or in writing, and must generally complain within 12 months to guarantee that it is considered.

Apply to magistrates’ court

You can also apply to a magistrates’ court for the return of the property under section 1 of the Police (Property) Act 1897. The procedure for doing so is found in the Criminal Procedure Rules (rule 47.37).

You must apply in writing. You need to serve the application on the court officer of the magistrates’ court and the officer who has the property. You need to explain that:

  1. You are the owner
  2. You want the device to be returned to you
  3. The reason for this is that there is no need to retain your property in the circumstances (provided that you are satisfied with a copy being made)

You also need to attach a list of all the people on whom you have served the notice. You can do this provided there are no disputes as to who owns the device – proof of purchase may help you if this appears relevant.

Claim compensation

If the police retain property unnecessarily, you may have a civil claim for wrongful interference with goods which could entitle you to claim compensation. This could include where the police have held on to your devices for an excessive amount of time, as well where it was unnecessary to retain them in the first place.

If considering a civil claim, please obtain full advice from a solicitor: the directory of solicitors in England and Wales can be found on the Law Society’s website – you would need a Consumer & civil rights solicitor. Generally, this will highly difficult without you having first filed a complaint as detailed above.

Trials, Tribulations and Transcripts

The problem

Access to transcripts of criminal trials is sorely lacking in England and Wales. A de facto monopoly of private sector transcript providers for each Crown court means that defendants hoping to scrutinise the proceedings that led to their ending up in prison are left at the mercy of the market.

Worse still, in magistrates’ courts trials, no formal records are kept. Over 95% of criminal cases are dealt with in the magistrates’ court. They need not have a legally trained member of the judicial bench: while some cases are presided over by district judges, magistrates receive advice on the law from a legal advisor. While magistrates are trained, they are essentially voluntary members of the public. They work part-time. In 2013/14, the average amount spent on training a magistrate was £26.

There is certainly an argument to be made that such proceedings deserve more scrutiny: particularly given that magistrates proceedings can be the start of a cycle of low-level offending and imprisonment. Anecdotally, many practitioners despair at their experiences before these courts. For some examples, see this Twitter thread. But while these stories may provide dinner-party fodder for some, this is of little consolation to those whose liberty depends on accountability in the criminal justice system.

Transcription software and the way forward

So then, how to reconcile the fact that the justice sector continues to be savaged by cuts, with the need for accurate, full, and accessible reporting of proceedings? In my view, transcription software using voice-to-text technology, offers a valuable path forward.

The key to the potential of this idea is that better transcription software does not only benefit poor defendants. It is a somewhat trite observation to say that access to justice solutions can only succeed with private sector backing. ‘Lawtech’ in England and Wales, it is fair to say, has not been hugely successful to date, lacking investment and staying power.

Reliable voice-to-text software, however, if rolled out across the legal and advice sectors, could be transformative. Savings on overheads throughout public, private and the third sectors could be enormous. Whether streamlining detailed note-taking of interviews for auditing purposes, producing minutes of board meetings, or ensuring accurate logs of phone calls are available, voice-to-text offers a credible solution.

In crime, lawyers need access to transcripts to be able to challenge unsafe convictions. Further, juries could potentially have access to transcript material to refer back to in their decision making processes, rather than needing to recall testimony and rely on judges’ summaries. Granted, there is still a considerable way to go for transcription software to be considered a failsafe option. But the alternative – nothing at all – is unpalatable. Voice-to-text software should be endorsed in reducing the resource burden in providing access to justice for all, and closing the accountability gap throughout the criminal justice system.

Granted, there is still a considerable way to go for transcription software to be considered a failsafe option. But the alternative – nothing at all – is unpalatable. Voice-to-text software should be endorsed in reducing the resource burden in providing access to justice for all, and closing the accountability gap throughout the criminal justice system.

Welcome to Rights Bites

Rights Bites was born in April 2019 for two reasons.

First, to make a small contribution to access to justice by providing concrete information on the everyday rights of ordinary people. Resources are notoriously scarce; violations of rights in the UK, sadly, are not. While several UK charities contribute importantly to making rights public by providing information (see, for example, Citizens Advice and Liberty), no fully comprehensive resource is likely to be available in the near future. This blog aims to fill in some of the gaps.

Second, Rights Bites also provides a platform for young human rights and social justice lawyers to publish short, snappy pieces responding to current issues. Allowing for quick reactions and creative formats without the constraints of Twitter or a significant commitment, the platform aims to foster debate and encourage young lawyers to contribute to a more positive rights dialogue. Any issues engaging rights in the UK or international sphere are welcome – the blog will span from access to justice, criminal law, and general human rights, to equality law, international law and general human rights.

We welcome enthusiastic new contributors: to discuss any ideas, contact rightsbites@pm.me