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.