Police examination of mobile phone not unlawful?http://www.scottishlegal.com/inde...e=Criminal&newsID=62672#62672
Police examination of mobile phone following detention of accused ‘not unlawful’
An examination by police of an accused person’s mobile phone which uncovered a text conversation with a co-accused was not illegal, appeal judges have ruled.
The Criminal Appeal Court held that the police power of “search” in terms of section 14 of the Criminal Procedure (Scotland) Act 1995 included the power to “examine” and therefore the evidence obtained following the inspection of the accused’s iPhone was not inadmissible.
The appellants, JL and EI, challenged a decision made by the sheriff at Dundee at a first diet in a case where they had been indicted on a charge of assault to injury and permanent disfigurement, relating to the admissibility of evidence sought to be relied on by the Crown which had been obtained by police officers following upon the appellants’ detention in terms of section 14 of the 1995 Act.
Lord Brodie, Lord Bracadale and Lord Drummond Young heard that the ground of submission raised at the first diet was that police officers had “unlawfully accessed” a phone belonging to the first appellant and accessed a text conversation between the two accused, which was transcribed into a document and shown to the accused prior to her interview by officers.
It was submitted on behalf of the appellant that the police had “no lawful authority” to examine the contents of the mobile phone and accordingly, that the officers had acted unlawfully in so doing. It was also submitted that the interview conducted by police officers with the appellant should be held as “inadmissible” given that the “unlawfully obtained” material had been used in the course of the interview.
However, the challenge was dismissed and the appellants appealed to the High Court of Justiciary on the ground that the sheriff erred in refusing the minute. It was submitted that the police officers had no authority to allow them to examine the mobile telephone without either seeking the permission of the first appellant or seeking a warrant to allow them to do so. It was argued that there was “no power” in terms of section 14 of the 1995 Act which allowed a police officer to examine the contents of a mobile telephone.
However, the appeal court observed that a power of “search” of a person “comprehends looking for an item, seizing it and examining it”.
“Accordingly, if a police officer has lawfully arrested a person that officer may in exercise of the common law power of search following an arrest take possession of the person's jacket or handbag, look inside the jacket pocket or handbag and, on finding, for example, a diary, examine the entries made in that diary with a view to these entries forming a basis for a further inquiry or being admitted as evidence in future criminal proceedings,” Lord Brodie said.
Police officers had the same power following a detention by virtue of section 14(7) of the 1995 Act, the judges added.
Delivering the opinion of the court, Lord Brodie (pictured) said: “The section 14(7) power of search includes power to examine. What will be required for the effective examination of a particular item will depend on the nature of that item and what is the nature of the information which it is hoped to elicit from the examination.
“For all that we were told, in the present case, examining the iPhone 5 involved little more than connecting the device to a power supply, switching it on and touching the appropriate portions of the screen. In our opinion, so doing was clearly within the powers conferred by section 14(7).
“We are not satisfied that there was any illegality or irregularity in recovering the evidence objected to. In our opinion the evidence is admissible. We agree with the conclusion of the sheriff and accordingly refuse the appeal.”