Can the police access deleted mobile phone data?

Mobile phones play a central and crucial role in our modern-day lives and as a result, they contain a significant amount of information about our personal and business lives. It is not therefore surprising that the police will seek to seize a mobile phone as part of the evidence-gathering exercise. They have the power to seize a person’s phone under certain circumstances and may be able to retrieve data from the device, even after it has been deleted, that could be used as part of the prosecution case.

Can the police seize my mobile phone?

Under Section 22 of the Police & Criminal Evidence Act 1984 (PACE), the police have the legal power to seize property, including a mobile phone, if they think it may contain evidence relevant to an investigation such as text messages, call logs, photographs or videos. The police have the power to access the data contrary to the Regulation of Investigatory Powers Act 2000 (RIPA).

This would be relevant if you were a suspect or if they believed that information on the phone could be connected to another investigation. The police only need to establish a ‘reasonable belief’ that there is a connection between the information on your phone and the crime.

If you are stopped and searched on the street but not arrested, the police have no right to confiscate or seize your mobile phone.

How long can the police keep my phone?

The police will not return the phone to you until they conclude that it is no longer needed for the investigation (if it does not contain any evidence) or the investigation concludes (where no further action is taken).

If material is found on the phone, it is likely that the phone will likely never be returned to you and it will be destroyed.

Do I have to supply the police with my phone password/pin code?

Whilst there is an expectation, you do not have to provide the password to the police to allow them to access your phone. But refusing (or if you are unable to provide the password), does not mean that the police will not be able to access information on your device. The police will rely on digital forensic technology and RIPA powers to force access and may be successful in recovering information.

If you refuse to provide the password, the police could serve you with a Notice contrary to section 49 of the Regulation of Investigatory Powers Act 2000. This normally starts with a Warning Notice and could result in the police making an application to a Judge for permission to give Notice under section 49.

If you’re served with a Notice under section 49, you are then legally obliged to provide the information. Failure to hand over information, such as your phone password, could then result in criminal proceedings and up to two years in prison, or more if the case involves child indecency or issues of national security.

It is a defence for a person to show that they are not in possession of the password or to argue that the statutory prescribed grounds in serving the Notice are not satisfied, for example the disclosure request is not proportionate or the material could be obtained by other reasonable means.

Deciding whether to comply may not be straightforward. The suspect may be under investigation for a serious criminal offence, the punishment for which would exceed that available for not complying with the Notice requirements, weighed against the possibility that the police may gain access to the phone anyway and the additional delay this will add to the investigation process.

Can the police extract deleted messages from my phone?

Even if you delete text messages, the police may be able to retrieve them as part of a digital forensic examination.

Text messages can be stored on a phone’s memory and/or the SIM card. When you delete text messages from your phone/SIM, whilst it will disappear from your messages, your phone will store the message data elsewhere in your phone which could be accessed by digital forensic software used by the police. When you delete a message, it is technically removed from sight and hidden within the software. Text messages are never truly deleted which is why the police digital forensic equipment may find messages that have been deleted.

It is not possible to say for sure whether the police will or will not find deleted messages. This will depend on a number of factors such as: the type of mobile phone; the phone’s storage and data capacity; whether it had been backed-up and whether mobile providers have stored your data.

Can the police access WhatsApp messages from my phone?

WhatsApp messages are “end-to-end encrypted” which means that the police cannot easily intercept them. End-to-end encryption is a security method that keeps your communications secure. With end-to-end encryption, no one, including Google and third-parties, can read eligible messages as they travel between your phone and the phone that you message. 

But, even if deleted, it is possible that the police could still retrieve messages, particular where the messages are saved as a backup on a Google account.  The messages saved to the Google account are not end-to-end encrypted, which is why digital forensic examinations could retrieve those messages.

This would require WhatsApp Inc’s cooperation, who are notorious for being difficult when it comes to engagement with international police.

Are there any other steps the police could take to access material from your phone?

The police could approach your service provider and request data from your phone.

As an example, WhatsApp Privacy Policy states: “they preserve and share user information if they have a good faith belief that it is reasonable necessary to detect, investigate, and prevent illegal activity and respond to legal process or to government requests”

If service providers do not cooperate, the police could apply to the court for a warrant to force service providers to provide data contrary to the Digital Economy Act 2017. This would request encrypted data that can be decrypted.

Remember that it is possible that the police are looking for communication between you and another person (such as a complainant, witness or co-accused), which means they may be able to see messages that you sent to that other person.

The police may also carry out cell-site analysis work which is a record of the cell or as commonly referred to, the mast, to determine your phones location at a particular point in time.

How far back can messages be retrieved from your phone?

Text messages are typically stored by phone service providers from between three days up to three months. What is retrieved will also depend upon the type of phone you have and how full its storage was at the time of seizure. If the storage is full, it is possible that the phone had not backed-up messages which means that the period of time messages will be retrievable will be reduced.

Can the police access photographs and videos from your phone?

The answers above relating to messages also apply to photographs and videos. It is possible to retrieve deleted images as they are never truly deleted but remain hidden in a different location on the memory card and are only truly deleted if the memory card is overwritten with new data. The police have software that can recover evidence of images (partial or thumbnail) or data connected to an image from the phone’s memory.

Whether images are recoverable will also depend upon whether your memory card was full, how often you deleted images and added new photos that could have resulted in overwriting the photo memory.

How can Olliers help you if you have had electronic devices including your phone seized for forensic analysis?

It is likely that the police will want to seize your phone following arrest and will request your password during the police interview. It is imperative that you have legal advice and ensure that your phone is returned to you as soon as possible.

Olliers have a highly skilled pro-active criminal defence team who will provide you with expert legal advice throughout the pre-charge investigation process and ensure your rights are protected.

If you would like to discuss how we can proactively assist you in relation to your case please contact our new enquiry team by email to info@olliers.com, by telephone on 020 3883 6790 (London) or 0161 834 1515 (Manchester) or by completing the form below and our new enquiry team will contact you.