Phone SeizedSituationsEmployer-owned phone: who is the user, who gets it back

Employer-owned phone: who is the user, who gets it back

Applies to: England & Wales. The law differs materially between jurisdictions this site covers — do not apply this page outside the one named here.

What you must do, what you can refuse, and what they can do

Every claim below links to the source it comes from, with the wording quoted so you can check it yourself.

You must

Refusing is a criminal offence.

Make the disclosure required by a section 49 notice given to you, in accordance with the notice — a person to whom a section 49 notice has been given is guilty of an offence if he knowingly fails, in accordance with the notice, to make the disclosure required by virtue of the giving of the notice.
Regulation of Investigatory Powers Act 2000, s.53(1)
“A person to whom a section 49 notice has been given is guilty of an offence if he knowingly fails, in accordance with the notice, to make the disclosure required by virtue of the giving of the notice.”
Read it at legislation.gov.ukquote checked 2026-09-08

What they can do

A power the law gives them over you or your device.

Under s.49(2), if a person with the appropriate permission under Schedule 2 believes, on reasonable grounds, that a key to the protected information is in the possession of any person, that a disclosure requirement is necessary on grounds falling within subsection (3) or for the purpose of securing the effective exercise or proper performance by any public authority of any statutory power or statutory duty, that imposing it is proportionate to what is sought to be achieved, and that it is not reasonably practicable for the person with the appropriate permission to obtain possession of the protected information in an intelligible form without the giving of a notice under that section, that person may by notice to the person he believes to have possession of the key impose a disclosure requirement in respect of the protected information.
Regulation of Investigatory Powers Act 2000, s.49(2)
“If any person with the appropriate permission under Schedule 2 believes, on reasonable grounds— that a key to the protected information is in the possession of any person,— that the imposition of a disclosure requirement in respect of the protected information is— necessary on grounds falling within subsection (3), or— necessary for the purpose of securing the effective exercise or proper performance by any public authority of any statutory power or statutory duty,— that the imposition of such a requirement is proportionate to what is sought to be achieved by its imposition, and— that it is not reasonably practicable for the person with the appropriate permission to obtain possession of the protected information in an intelligible form without the giving of a notice under this section,— the person with that permission may, by notice to the person whom he believes to have possession of the key, impose a disclosure requirement in respect of the protected information.”
Read it at legislation.gov.ukquote checked 2026-10-02
An authorised person may extract information stored on an electronic device from that device if a user of the device has voluntarily provided the device to an authorised person, and that user has agreed to the extraction of information from the device by an authorised person.
Police, Crime, Sentencing and Courts Act 2022, s.37(1)
“An authorised person may extract information stored on an electronic device from that device if— a user of the device has voluntarily provided the device to an authorised person, and— that user has agreed to the extraction of information from the device by an authorised person.”
Read it at legislation.gov.ukquote checked 2026-09-08

Limits on them

A rule that constrains them, or a remedy you can use.

Section 37(2) to (4) of the Police, Crime, Sentencing and Courts Act 2022 say that the power in subsection (1) may be exercised only for the purposes of preventing, detecting, investigating or prosecuting crime, helping to locate a missing person, or protecting a child or an at-risk adult from neglect or physical, mental or emotional harm. The reference in subsection (2) to crime is a reference to conduct which constitutes one or more criminal offences in any part of the United Kingdom, or conduct which, if it took place in any part of the United Kingdom, would constitute one or more criminal offences. For the purposes of subsection (2) an adult is an at-risk adult if the authorised person reasonably believes that the adult is experiencing, or at risk of, neglect or physical, mental or emotional harm, and is unable to protect themselves against the neglect or harm or the risk of it.
Police, Crime, Sentencing and Courts Act 2022, s.37(2) to (4)
“The power in subsection (1) may be exercised only for the purposes of— preventing, detecting, investigating or prosecuting crime, — helping to locate a missing person, or — protecting a child or an at-risk adult from neglect or physical, mental or emotional harm.—The reference in subsection (2) to crime is a reference to— conduct which constitutes one or more criminal offences in any part of the United Kingdom, or — conduct which, if it took place in any part of the United Kingdom, would constitute one or more criminal offences.—For the purposes of subsection (2) an adult is an at-risk adult if the authorised person reasonably believes that the adult— is experiencing, or at risk of, neglect or physical, mental or emotional harm, and — is unable to protect themselves against the neglect or harm or the risk of it.”
Read it at legislation.gov.ukquote checked 2026-10-04
Section 37(5) of the Police, Crime, Sentencing and Courts Act 2022 says that an authorised person may exercise the power in subsection (1) only if, in a case where the authorised person proposes to exercise the power for a purpose within subsection (2)(a), the authorised person reasonably believes that information stored on the electronic device is relevant to a reasonable line of enquiry which is being, or is to be, pursued by an authorised person; in a case where the authorised person proposes to exercise the power for a purpose within subsection (2)(b) or (c), the authorised person reasonably believes that information stored on the electronic device is relevant to that purpose; and in any case, the authorised person is satisfied that exercise of the power is necessary and proportionate to achieve the purpose within subsection (2) for which the person proposes to exercise the power.
Police, Crime, Sentencing and Courts Act 2022, s.37(5)
“An authorised person may exercise the power in subsection (1) only if— in a case where the authorised person proposes to exercise the power for a purpose within subsection (2)(a), the authorised person reasonably believes that information stored on the electronic device is relevant to a reasonable line of enquiry which is being, or is to be, pursued by an authorised person, — in a case where the authorised person proposes to exercise the power for a purpose within subsection (2)(b) or (c), the authorised person reasonably believes that information stored on the electronic device is relevant to that purpose, and — in any case, the authorised person is satisfied that exercise of the power is necessary and proportionate to achieve the purpose within subsection (2) for which the person proposes to exercise the power.”
Read it at legislation.gov.ukquote checked 2026-10-04
Section 49(5) of the Regulation of Investigatory Powers Act 2000 says that where it appears to a person with the appropriate permission that more than one person is in possession of the key to any protected information, that any of those persons is in possession of that key in his capacity as an officer or employee of any body corporate, and that another of those persons is the body corporate itself or another officer or employee of the body corporate, a notice under section 49 shall not be given, by reference to his possession of the key, to any officer or employee of the body corporate unless he is a senior officer of the body corporate or it appears to the person giving the notice that there is no senior officer of the body corporate and (in the case of an employee) no more senior employee of the body corporate to whom it is reasonably practicable to give the notice. Section 49(6) says that where it appears to a person with the appropriate permission that more than one person is in possession of the key to any protected information, that any of those persons is in possession of that key in his capacity as an employee of a firm, and that another of those persons is the firm itself or a partner of the firm, a notice under section 49 shall not be given, by reference to his possession of the key, to any employee of the firm unless it appears to the person giving the notice that there is neither a partner of the firm nor a more senior employee of the firm to whom it is reasonably practicable to give the notice. Section 49(7) says that subsections (5) and (6) shall not apply to the extent that there are special circumstances of the case that mean that the purposes for which the notice is given would be defeated, in whole or in part, if the notice were given to the person to whom it would otherwise be required to be given by those subsections. Section 49(10) says that in section 49 “senior officer”, in relation to a body corporate, means a director, manager, secretary or other similar officer of the body corporate; and for this purpose “director”, in relation to a body corporate whose affairs are managed by its members, means a member of the body corporate.
It is not, as quoted, a right to refuse a section 49 notice that has been given: s.53(1), above, is worded as an offence by a person to whom a section 49 notice has been given who knowingly fails, in accordance with the notice, to make the disclosure required.
Regulation of Investigatory Powers Act 2000, s.49(5) to (7) and (10)
“Where it appears to a person with the appropriate permission— that more than one person is in possession of the key to any protected information, — that any of those persons is in possession of that key in his capacity as an officer or employee of any body corporate, and — that another of those persons is the body corporate itself or another officer or employee of the body corporate, a notice under this section shall not be given, by reference to his possession of the key, to any officer or employee of the body corporate unless he is a senior officer of the body corporate or it appears to the person giving the notice that there is no senior officer of the body corporate and (in the case of an employee) no more senior employee of the body corporate to whom it is reasonably practicable to give the notice.—Where it appears to a person with the appropriate permission— (a)that more than one person is in possession of the key to any protected information, — that any of those persons is in possession of that key in his capacity as an employee of a firm, and — that another of those persons is the firm itself or a partner of the firm, a notice under this section shall not be given, by reference to his possession of the key, to any employee of the firm unless it appears to the person giving the notice that there is neither a partner of the firm nor a more senior employee of the firm to whom it is reasonably practicable to give the notice.—Subsections (5) and (6) shall not apply to the extent that there are special circumstances of the case that mean that the purposes for which the notice is given would be defeated, in whole or in part, if the notice were given to the person to whom it would otherwise be required to be given by those subsections.—In this section “ senior officer ”, in relation to a body corporate, means a director, manager, secretary or other similar officer of the body corporate; and for this purpose “ director ”, in relation to a body corporate whose affairs are managed by its members, means a member of the body corporate.”
Read it at legislation.gov.ukquote checked 2026-10-04
The extraction Code of Practice says that the device user, or the person who has voluntarily provided the device and agreed to the extraction of information from it in accordance with Section 38, has the right to withdraw their agreement for information to be extracted from the device; that it is that individual’s decision to give the authorised person the device and to agree to the extraction of information from it, and they can change their mind; and that in the case of a device that is used by multiple users, only the person who voluntarily provided the device and agreed to the extraction of information from it can withdraw that agreement.
Extraction of Information from Electronic Devices: Code of Practice (Oct 2022), para 158
“The device user, or the person who has voluntarily provided the device and agreed to the extraction of information from it in accordance with Section 38, has the right to withdraw their agreement for information to be extracted from the device. It is that individual’s decision to give the authorised person the device and to agree to the extraction of information from it, and they can change their mind. In the case of a device that is used by multiple users, only the person who voluntarily provided the device and agreed to the extraction of information from it can withdraw that agreement.”
Read it at assets.publishing.service.gov.ukquote checked 2026-10-04
Where anything has been seized in exercise of any power of seizure and there is an obligation under “this Part” of the Criminal Justice and Police Act 2001 for the whole or any part of the seized property to be returned, the obligation to return it is (subject to the following provisions of s.58) an obligation to return it to the person from whom it was seized (s.58(1)). Where the person under that obligation is satisfied that some other person has a better right to that thing than the person from whom it was seized, his duty to return it is instead a duty to return it to that other person or, as the case may be, to the person appearing to him to have the best right to the thing in question (s.58(2)). Where different persons claim to be entitled to the return of anything that is required to be returned under that Part, that thing may be retained for as long as is reasonably necessary for the determination in accordance with s.58(2) of the person to whom it must be returned (s.58(3)).
Criminal Justice and Police Act 2001, s.58(1)-(3)
“Where— anything has been seized in exercise of any power of seizure, and — there is an obligation under this Part for the whole or any part of the seized property to be returned, the obligation to return it shall (subject to the following provisions of this section) be an obligation to return it to the person from whom it was seized.—Where— any person is obliged under this Part to return anything that has been seized to the person from whom it was seized, and — the person under that obligation is satisfied that some other person has a better right to that thing than the person from whom it was seized, his duty to return it shall, instead, be a duty to return it to that other person or, as the case may be, to the person appearing to him to have the best right to the thing in question.—Where different persons claim to be entitled to the return of anything that is required to be returned under this Part, that thing may be retained for as long as is reasonably necessary for the determination in accordance with subsection (2) of the person to whom it must be returned.”
Read it at legislation.gov.ukquote checked 2026-10-04
Any person with a relevant interest in the seized property may apply to the appropriate judicial authority, on one or more of the grounds mentioned in s.59(3), for the return of the whole or a part of the seized property.
Criminal Justice and Police Act 2001, s.59(2)
“Any person with a relevant interest in the seized property may apply to the appropriate judicial authority, on one or more of the grounds mentioned in subsection (3), for the return of the whole or a part of the seized property.”
Read it at legislation.gov.ukquote checked 2026-09-08
Subject to s.21(8) of PACE, if a request for permission to be granted access to anything which has been seized by a constable and is retained by the police for the purpose of investigating an offence is made to the officer in charge of the investigation by a person who had custody or control of the thing immediately before it was so seized or by someone acting on behalf of such a person, the officer shall allow the person who made the request access to it under the supervision of a constable (s.21(3)). Subject to s.21(8), if a request for a photograph or copy of any such thing is made to the officer in charge of the investigation by a person who had custody or control of the thing immediately before it was so seized, or by someone acting on behalf of such a person, the officer shall allow the person who made the request access to it under the supervision of a constable for the purpose of photographing or copying it, or photograph or copy it, or cause it to be photographed or copied (s.21(4)). Under s.21(8), there is no duty under s.21 to grant access to, or to supply a photograph or copy of, anything if the officer in charge of the investigation for the purposes of which it was seized has reasonable grounds for believing that to do so would prejudice that investigation; the investigation of an offence other than the offence for the purposes of investigating which the thing was seized; or any criminal proceedings which may be brought as a result of the investigation of which he is in charge or of any such investigation as is mentioned in paragraph (b).
As quoted, s.21 is worded by who had custody or control of the thing, and does not mention ownership.
Police and Criminal Evidence Act 1984, s.21(3), (4) and (8)
“Subject to subsection (8) below, if a request for permission to be granted access to anything which— has been seized by a constable; and — is retained by the police for the purpose of investigating an offence, is made to the officer in charge of the investigation by a person who had custody or control of the thing immediately before it was so seized or by someone acting on behalf of such a person, the officer shall allow the person who made the request access to it under the supervision of a constable.—Subject to subsection (8) below, if a request for a photograph or copy of any such thing is made to the officer in charge of the investigation by a person who had custody or control of the thing immediately before it was so seized, or by someone acting on behalf of such a person, the officer shall— allow the person who made the request access to it under the supervision of a constable for the purpose of photographing or copying it; or — photograph or copy it, or cause it to be photographed or copied.—There is no duty under this section to grant access to, or to supply a photograph or copy of, anything if the officer in charge of the investigation for the purposes of which it was seized has reasonable grounds for believing that to do so would prejudice— that investigation; — the investigation of an offence other than the offence for the purposes of investigating which the thing was seized; or — any criminal proceedings which may be brought as a result of— the investigation of which he is in charge; or — any such investigation as is mentioned in paragraph (b) above.”
Read it at legislation.gov.ukquote checked 2026-10-04
PACE Code B para 7.17 says that “That person or their representative” must be allowed supervised access to the property to examine it or have it photographed or copied, or must be provided with a photograph or copy, in either case within a reasonable time of any request and at their own expense, unless the officer in charge of an investigation has reasonable grounds for believing this would prejudice the investigation of any offence or criminal proceedings, or lead to the commission of an offence by providing access to unlawful material such as pornography.
PACE Code B (2023), para 7.17
“That person or their representative must be allowed supervised access to the property to examine it or have it photographed or copied, or must be provided with a photograph or copy, in either case within a reasonable time of any request and at their own expense, unless the officer in charge of an investigation has reasonable grounds for believing this would:—prejudice the investigation of any offence or criminal proceedings; or—lead to the commission of an offence by providing access to unlawful material such as pornography;”
Read it at assets.publishing.service.gov.ukquote checked 2026-10-04
PACE Code B para 7.16 says that if property is retained, the person who had custody or control of it immediately before seizure must, on request, be provided with a list or description of the property within a reasonable time.
PACE Code B (2023), para 7.16
“If property is retained, the person who had custody or control of it immediately before seizure must, on request, be provided with a list or description of the property within a reasonable time.”
Read it at assets.publishing.service.gov.ukquote checked 2026-10-04
Under s.1(1) of the Police (Property) Act 1897, where any property has come into the possession of the police in connexion with their investigation of a suspected offence, a court of summary jurisdiction may, on application, either by an officer of police or by a claimant of the property, make an order for the delivery of the property to the person appearing to the magistrate or court to be the owner thereof, or, if the owner cannot be ascertained, make such order with respect to the property as to the magistrate or court may seem meet.
Police (Property) Act 1897, s.1(1)
“Where any property has come into the possession of the police in connexion with their investigation of a suspected offence — a court of summary jurisdiction may, on application, either by an officer of police or by a claimant of the property, make an order for the delivery of the property to the person appearing to the magistrate or court to be the owner thereof, or, if the owner cannot be ascertained, make such order with respect to the property as to the magistrate or court may seem meet.”
Read it at legislation.gov.ukquote checked 2026-10-04

What the sources say

What a document, a report, an agency publication or a provision says, quoted as it is worded.

PACE Code B para 2.2 says that the Notes for Guidance included are not provisions of that Code.
PACE Code B (2023), para 2.2
“The Notes for Guidance included are not provisions of this Code.”
Read it at assets.publishing.service.gov.ukquote checked 2026-10-04
PACE Code B Note for guidance 7A says any person claiming property seized by the police may apply to a magistrates’ court under the Police (Property) Act 1897 for its possession and should, if appropriate, be advised of this procedure.
PACE Code B (2023), Note for guidance 7A
“Any person claiming property seized by the police may apply to a magistrates' court under the Police (Property) Act 1897 for its possession and should, if appropriate, be advised of this procedure.”
Read it at assets.publishing.service.gov.ukquote checked 2026-10-04
In Chapter 3 of Part 2 of the Police, Crime, Sentencing and Courts Act 2022, “user”, in relation to an electronic device, means a person who ordinarily uses the device.
Police, Crime, Sentencing and Courts Act 2022, s.37(13) (interpretation: "user")
“In this Chapter—“ user ”, in relation to an electronic device, means a person who ordinarily uses the device.”
Read it at legislation.gov.ukquote checked 2026-10-04
References in s.59 of the Criminal Justice and Police Act 2001 to a person with a relevant interest in seized property are references to the person from whom it was seized; any person with an interest in the property; or any person, not falling within those two descriptions, who had custody or control of the property immediately before the seizure.
Criminal Justice and Police Act 2001, s.59(11)
“References in this section to a person with a relevant interest in seized property are references to— the person from whom it was seized; — any person with an interest in the property; or — any person, not falling within paragraph (a) or (b), who had custody or control of the property immediately before the seizure.”
Read it at legislation.gov.ukquote checked 2026-10-04
References in that Part of the Criminal Justice and Police Act 2001 to the person from whom something has been seized, in relation to a case in which the power of seizure was exercisable by reason of that thing’s having been found on any premises, are references to the occupier of the premises at the time of the seizure.
Criminal Justice and Police Act 2001, s.58(4)
“References in this Part to the person from whom something has been seized, in relation to a case in which the power of seizure was exercisable by reason of that thing’s having been found on any premises, are references to the occupier of the premises at the time of the seizure.”
Read it at legislation.gov.ukquote checked 2026-10-04
References in s.58 of the Criminal Justice and Police Act 2001 to the occupier of any premises at the time of a seizure, in relation to a case in which a notice in connection with the entry or search of the premises in question, or with the seizure, was given to a person appearing in the occupier’s absence to be in charge of the premises, and it is practicable, for the purpose of returning something that has been seized, to identify that person but not to identify the occupier of the premises, are references to that person.
Criminal Justice and Police Act 2001, s.58(5)
“References in this section to the occupier of any premises at the time of a seizure, in relation to a case in which— a notice in connection with the entry or search of the premises in question, or with the seizure, was given to a person appearing in the occupier’s absence to be in charge of the premises, and — it is practicable, for the purpose of returning something that has been seized, to identify that person but not to identify the occupier of the premises, are references to that person.”
Read it at legislation.gov.ukquote checked 2026-10-04
Under s.14(3) and (4) of PACE, where material is acquired by an employee from his employer and in the course of his employment, or by a company from an associated company, it is only special procedure material if it was special procedure material immediately before the acquisition; and where material is created by an employee in the course of his employment, it is only special procedure material if it would have been special procedure material had his employer created it.
Police and Criminal Evidence Act 1984, s.14(3) and (4)
“Where material is acquired— by an employee from his employer and in the course of his employment; or — by a company from an associated company, it is only special procedure material if it was special procedure material immediately before the acquisition.—Where material is created by an employee in the course of his employment, it is only special procedure material if it would have been special procedure material had his employer created it.”
Read it at legislation.gov.ukquote checked 2026-10-04
Section 37(12) of the Police, Crime, Sentencing and Courts Act 2022 says that the section does not affect any power relating to the extraction or production of information, or any power to seize any item or obtain any information, conferred by an enactment or rule of law.
Police, Crime, Sentencing and Courts Act 2022, s.37(12)
“This section does not affect any power relating to the extraction or production of information, or any power to seize any item or obtain any information, conferred by an enactment or rule of law.”
Read it at legislation.gov.ukquote checked 2026-10-04
The extraction Code of Practice says that if a device has multiple users, for example a shared laptop or tablet device, it is the responsibility of the authorised person to ensure that the person volunteering the device and agreeing to the extraction of information from it is a person who ordinarily uses the device; and that ‘ordinarily uses’ does not necessarily mean that this person was the original purchaser of the device or that they must own it outright — for example, a person may have a mobile phone or laptop that they regularly use which has been provided by their employer or other organisation.
Extraction of Information from Electronic Devices: Code of Practice (Oct 2022), paras 51 and 52
“If a device has multiple users, for example a shared laptop or tablet device, it is the responsibility of the authorised person to ensure that the person volunteering the device and agreeing to the extraction of information from it is a person who ordinarily uses the device.—‘Ordinarily uses’ does not necessarily mean that this person was the original purchaser of the device or that they must own it outright. For example, a person may have a mobile phone or laptop that they regularly use which has been provided by their employer or other organisation.”
Read it at assets.publishing.service.gov.ukquote checked 2026-10-04
The extraction Code of Practice says it should be made clear that withdrawal of agreement will mean that the device is returned, if the extraction has not already taken place, then the information will not be taken from the device. However, if agreement is withdrawn after the extraction of information has taken place, it may not be possible to delete or return it. This is because of the duties on investigating agencies and prosecution services to disclose information to the defence. In all cases, however, the extracted information and the device must only be retained where there is a lawful basis to do so and as long as necessary in line with each authority’s data retention policies and other relevant guidance.
Extraction of Information from Electronic Devices: Code of Practice (Oct 2022), para 159
“It should be made clear that withdrawal of agreement will mean that the device is returned, if the extraction has not already taken place, then the information will not be taken from the device. However, if agreement is withdrawn after the extraction of information has taken place, it may not be possible to delete or return it. This is because of the duties on investigating agencies and prosecution services to disclose information to the defence. In all cases, however, the extracted information and the device must only be retained where there is a lawful basis to do so and as long as necessary in line with each authority’s data retention policies and other relevant guidance.”
Read it at assets.publishing.service.gov.ukquote checked 2026-10-04
Section 1(2) of the Police (Property) Act 1897 says that an order under that section shall not affect the right of any person to take within six months from the date of the order legal proceedings against any person in possession of property delivered by virtue of the order for the recovery of the property, but on the expiration of those six months the right shall cease.
Police (Property) Act 1897, s.1(2)
“An order under this section shall not affect the right of any person to take within six months from the date of the order legal proceedings against any person in possession of property delivered by virtue of the order for the recovery of the property, but on the expiration of those six months the right shall cease.”
Read it at legislation.gov.ukquote checked 2026-10-04
PACE Code B Note for guidance 7D says that what constitutes a relevant interest in specific material may depend on the nature of that material and the circumstances in which it is seized, and that anyone with a reasonable claim to ownership of the material and anyone entrusted with its safe keeping by the owner should be considered.
PACE Code B (2023), Note for guidance 7D
“What constitutes a relevant interest in specific material may depend on the nature of that material and the circumstances in which it is seized. Anyone with a reasonable claim to ownership of the material and anyone entrusted with its safe keeping by the owner should be considered.”
Read it at assets.publishing.service.gov.ukquote checked 2026-10-04

Whose phone is it, for these purposes?

Some expressions in the law quoted on this page are defined in the statutes; these are set out here as worded.

Section 37(13) of the Police, Crime, Sentencing and Courts Act 2022 says that in Chapter 3 of Part 2 of that Act, “user”, in relation to an electronic device, means a person who ordinarily uses the device.

Section 58(4) of the Criminal Justice and Police Act 2001 says that references in that Part to the person from whom something has been seized, in relation to a case in which the power of seizure was exercisable by reason of that thing’s having been found on any premises, are references to the occupier of the premises at the time of the seizure.

Section 58(5) says that references in that section to the occupier of any premises at the time of a seizure, in relation to a case in which a notice in connection with the entry or search of the premises in question, or with the seizure, was given to a person appearing in the occupier’s absence to be in charge of the premises, and it is practicable, for the purpose of returning something that has been seized, to identify that person but not to identify the occupier of the premises, are references to that person.

Section 59(11) says that references in s.59 to a person with a relevant interest in seized property are references to the person from whom it was seized; any person with an interest in the property; or any person, not falling within those two descriptions, who had custody or control of the property immediately before the seizure.

Seizure from premises: what section 19 says

Section 19 says that the powers conferred by subsections (2), (3) and (4) are exercisable by a constable who is lawfully on any premises, and s.19(3) says the constable may seize anything which is on the premises if he has reasonable grounds for believing that it is evidence in relation to an offence which he is investigating or any other offence, and that it is necessary to seize it in order to prevent the evidence being concealed, lost, altered or destroyed (s.19). The quoted words speak of “anything which is on the premises”; they do not mention who owns it. Seizure under PACE is covered on the seizure page.

Extraction by agreement under section 37

Section 37(1) of the 2022 Act says an authorised person may extract information stored on an electronic device from that device if a user of the device has voluntarily provided the device to an authorised person, and that user has agreed to the extraction of information from the device by an authorised person. The Code of Practice says that in the case of a device that is used by multiple users, only the person who voluntarily provided the device and agreed to the extraction of information from it can withdraw that agreement (Code, para 158); the same paragraph says the device user, or the person who has voluntarily provided the device and agreed to the extraction of information from it in accordance with Section 38, has the right to withdraw their agreement for information to be extracted from the device. Paragraph 159 adds that it should be made clear that withdrawal of agreement will mean that the device is returned, if the extraction has not already taken place, then the information will not be taken from the device; however, if agreement is withdrawn after the extraction of information has taken place, it may not be possible to delete or return it. It says this is because of the duties on investigating agencies and prosecution services to disclose information to the defence, and that in all cases, however, the extracted information and the device must only be retained where there is a lawful basis to do so and as long as necessary in line with each authority’s data retention policies and other relevant guidance (Code, para 159).

Section 37(2) to (4) say that the power in subsection (1) may be exercised only for the purposes of preventing, detecting, investigating or prosecuting crime, helping to locate a missing person, or protecting a child or an at-risk adult from neglect or physical, mental or emotional harm; that the reference in subsection (2) to crime is a reference to conduct which constitutes one or more criminal offences in any part of the United Kingdom, or conduct which, if it took place in any part of the United Kingdom, would constitute one or more criminal offences; and that for the purposes of subsection (2) an adult is an at-risk adult if the authorised person reasonably believes that the adult is experiencing, or at risk of, neglect or physical, mental or emotional harm, and is unable to protect themselves against the neglect or harm or the risk of it. Section 37(5) says that an authorised person may exercise the power in subsection (1) only if, in a case where the authorised person proposes to exercise the power for a purpose within subsection (2)(a), the authorised person reasonably believes that information stored on the electronic device is relevant to a reasonable line of enquiry which is being, or is to be, pursued by an authorised person; in a case where the authorised person proposes to exercise the power for a purpose within subsection (2)(b) or (c), the authorised person reasonably believes that information stored on the electronic device is relevant to that purpose; and in any case, the authorised person is satisfied that exercise of the power is necessary and proportionate to achieve the purpose within subsection (2) for which the person proposes to exercise the power.

As quoted, s.37(1) is worded as “a user of the device”, and s.37(13) defines “user” as “a person who ordinarily uses the device”. Neither quotation mentions who owns the device, or an employer. The extraction Code says that if a device has multiple users, for example a shared laptop or tablet device, it is the responsibility of the authorised person to ensure that the person volunteering the device and agreeing to the extraction of information from it is a person who ordinarily uses the device; and that ‘ordinarily uses’ does not necessarily mean that this person was the original purchaser of the device or that they must own it outright — for example, a person may have a mobile phone or laptop that they regularly use which has been provided by their employer or other organisation (Code, paras 51 and 52). Section 37(12) says that the section does not affect any power relating to the extraction or production of information, or any power to seize any item or obtain any information, conferred by an enactment or rule of law (s.37(12)). Extraction by agreement is covered on the victims and witnesses page.

Passwords and keys held by a company

Section 53(1) of the Regulation of Investigatory Powers Act 2000 says that a person to whom a section 49 notice has been given is guilty of an offence if he knowingly fails, in accordance with the notice, to make the disclosure required by virtue of the giving of the notice (s.53(1)).

Section 49(2) says that if any person with the appropriate permission under Schedule 2 believes, on reasonable grounds, that a key to the protected information is in the possession of any person; that the imposition of a disclosure requirement in respect of the protected information is necessary on grounds falling within subsection (3), or necessary for the purpose of securing the effective exercise or proper performance by any public authority of any statutory power or statutory duty; that the imposition of such a requirement is proportionate to what is sought to be achieved by its imposition; and that it is not reasonably practicable for the person with the appropriate permission to obtain possession of the protected information in an intelligible form without the giving of a notice under that section, the person with that permission may, by notice to the person whom he believes to have possession of the key, impose a disclosure requirement in respect of the protected information (s.49(2)). The notice is covered on the RIPA notice page.

Section 49(5) says that where it appears to a person with the appropriate permission that more than one person is in possession of the key to any protected information, that any of those persons is in possession of that key in his capacity as an officer or employee of any body corporate, and that another of those persons is the body corporate itself or another officer or employee of the body corporate, a notice under section 49 shall not be given, by reference to his possession of the key, to any officer or employee of the body corporate unless he is a senior officer of the body corporate or it appears to the person giving the notice that there is no senior officer of the body corporate and (in the case of an employee) no more senior employee of the body corporate to whom it is reasonably practicable to give the notice. Section 49(6) says that where it appears to a person with the appropriate permission that more than one person is in possession of the key to any protected information, that any of those persons is in possession of that key in his capacity as an employee of a firm, and that another of those persons is the firm itself or a partner of the firm, a notice under section 49 shall not be given, by reference to his possession of the key, to any employee of the firm unless it appears to the person giving the notice that there is neither a partner of the firm nor a more senior employee of the firm to whom it is reasonably practicable to give the notice. Section 49(7) says that subsections (5) and (6) shall not apply to the extent that there are special circumstances of the case that mean that the purposes for which the notice is given would be defeated, in whole or in part, if the notice were given to the person to whom it would otherwise be required to be given by those subsections. Section 49(10) says that in section 49 “senior officer”, in relation to a body corporate, means a director, manager, secretary or other similar officer of the body corporate; and for this purpose “director”, in relation to a body corporate whose affairs are managed by its members, means a member of the body corporate.

Section 49(5) and (6) are worded as limits on to whom a notice shall not be given in the circumstances they describe. They are not, as quoted, a right to refuse a section 49 notice that has been given to you: s.53(1), above, is worded as an offence by a person to whom a section 49 notice has been given who knowingly fails, in accordance with the notice, to make the disclosure required. For how a notice differs from an informal request, see rightsandlimits.com’s phone passwords page.

Seeing it, copying it, getting a list

Section 21(3) of PACE says that, subject to subsection (8), if a request for permission to be granted access to anything which has been seized by a constable and is retained by the police for the purpose of investigating an offence is made to the officer in charge of the investigation by a person who had custody or control of the thing immediately before it was so seized or by someone acting on behalf of such a person, the officer shall allow the person who made the request access to it under the supervision of a constable. Section 21(4) says that, subject to subsection (8), if a request for a photograph or copy of any such thing is made to the officer in charge of the investigation by a person who had custody or control of the thing immediately before it was so seized, or by someone acting on behalf of such a person, the officer shall allow the person who made the request access to it under the supervision of a constable for the purpose of photographing or copying it, or photograph or copy it, or cause it to be photographed or copied. Section 21(8) says there is no duty under that section to grant access to, or to supply a photograph or copy of, anything if the officer in charge of the investigation for the purposes of which it was seized has reasonable grounds for believing that to do so would prejudice that investigation; the investigation of an offence other than the offence for the purposes of investigating which the thing was seized; or any criminal proceedings which may be brought as a result of the investigation of which he is in charge or of any such investigation as is mentioned in paragraph (b) (s.21(3), (4) and (8)). As quoted, s.21 is worded by who had custody or control of the thing, and does not mention ownership. The s.21(1) record of what was seized is on the seizure page.

PACE Code B para 7.16 says that if property is retained, the person who had custody or control of it immediately before seizure must, on request, be provided with a list or description of the property within a reasonable time (Code B). Para 7.17 opens “That person or their representative” and says they must be allowed supervised access to the property to examine it or have it photographed or copied, or must be provided with a photograph or copy, in either case within a reasonable time of any request and at their own expense, unless the officer in charge of an investigation has reasonable grounds for believing this would prejudice the investigation of any offence or criminal proceedings, or lead to the commission of an offence by providing access to unlawful material such as pornography (Code B).

Who gets it back

Section 58(1) of the Criminal Justice and Police Act 2001 says that where anything has been seized in exercise of any power of seizure, and there is an obligation under “this Part” for the whole or any part of the seized property to be returned, the obligation to return it shall (subject to the following provisions of that section) be an obligation to return it to the person from whom it was seized. Section 58(2) says that where any person is obliged under that Part to return anything that has been seized to the person from whom it was seized, and the person under that obligation is satisfied that some other person has a better right to that thing than the person from whom it was seized, his duty to return it shall, instead, be a duty to return it to that other person or, as the case may be, to the person appearing to him to have the best right to the thing in question. Section 58(3) says that where different persons claim to be entitled to the return of anything that is required to be returned under that Part, that thing may be retained for as long as is reasonably necessary for the determination in accordance with subsection (2) of the person to whom it must be returned (s.58(1) to (3)). As quoted, s.58(1) is worded as applying where there is an obligation under “this Part” for the whole or any part of the seized property to be returned; that Part is covered on the seize and sift page.

Section 59(2) says that any person with a relevant interest in the seized property may apply to the appropriate judicial authority, on one or more of the grounds mentioned in subsection (3), for the return of the whole or a part of the seized property (s.59(2)). Section 64(1) says that, subject to subsections (2) and (4), in that Part “appropriate judicial authority” means, in relation to England and Wales and Northern Ireland, a judge of the Crown Court, and, in relation to Scotland, a sheriff (s.64(1)). Section 59(10) says that the relevant powers of seizure for the purposes of that section are the powers of seizure conferred by sections 50 and 51; each of the powers of seizure specified in Parts 1 and 2 of Schedule 1; and any power of seizure (not falling within paragraph (a) or (b)) conferred on a constable by or under any enactment, including an enactment passed after that Act (s.59(10)). The grounds are in s.59(3), and are set out on the seize and sift page.

Section 1(1) of the Police (Property) Act 1897 says that where any property has come into the possession of the police in connexion with their investigation of a suspected offence, a court of summary jurisdiction may, on application, either by an officer of police or by a claimant of the property, make an order for the delivery of the property to the person appearing to the magistrate or court to be the owner thereof, or, if the owner cannot be ascertained, make such order with respect to the property as to the magistrate or court may seem meet (s.1(1)). Section 1(2) says that an order under that section shall not affect the right of any person to take within six months from the date of the order legal proceedings against any person in possession of property delivered by virtue of the order for the recovery of the property, but on the expiration of those six months the right shall cease (s.1(2)). PACE Code B para 2.2 says that the Notes for Guidance included are not provisions of that Code (Code B, para 2.2). PACE Code B Note for guidance 7A says any person claiming property seized by the police may apply to a magistrates’ court under the Police (Property) Act 1897 for its possession and should, if appropriate, be advised of this procedure (Code B, Note for guidance 7A). Note for guidance 7D says that what constitutes a relevant interest in specific material may depend on the nature of that material and the circumstances in which it is seized, and that anyone with a reasonable claim to ownership of the material and anyone entrusted with its safe keeping by the owner should be considered (Code B, Note for guidance 7D). Getting property back is compared on the get-it-back comparison.

Confidential business material

Section 14(3) of PACE says that where material is acquired by an employee from his employer and in the course of his employment, or by a company from an associated company, it is only special procedure material if it was special procedure material immediately before the acquisition. Section 14(4) says that where material is created by an employee in the course of his employment, it is only special procedure material if it would have been special procedure material had his employer created it (s.14(3) and (4)). The definition of special procedure material is set out on the journalist page; how the Schedule 7 Code treats confidential business material is covered on the work phone at a port page.