Seizure and cyber kiosks in Scotland

Police Scotland’s cyber kiosks page says: “We will only examine a digital device where there is a legal basis and where it is necessary, justified and proportionate to the incident or crime under investigation.” It also says that “all information is securely deleted from the cyber kiosk at the end of each examination”.

Section 120(1) of the Police and Criminal Evidence Act 1984 says: “Subject to the following provisions of this section, this Act extends to England and Wales only.” The provisions below are the ones this site has sourced for Scotland.

Section 34(1) of the Criminal Justice (Scotland) Act 2016 says that subsections (2) and (4) apply where a person is in police custody in relation to an offence, and the person has not been officially accused of committing the offence or an offence arising from the same circumstances as the offence. Section 34(4) then says: “The person is under no obligation to answer any question, other than to give the following information” — the person’s name, address, date of birth, place of birth (in such detail as a constable considers necessary or expedient for the purpose of establishing the person’s identity) and nationality. Section 34 is about answering questions; the RIPA and Schedule 7 provisions below are separate provisions.

This page is about what happens to a seized phone. For the fuller picture of what you must and do not have to answer in a Scottish police interview, see rights and limits’ guide to what you must answer in Scotland.

Section 49 notices under the Regulation of Investigatory Powers Act 2000 and Schedule 7 to the Terrorism Act 2000 are covered here.

Section 53(1) of the Regulation of Investigatory Powers Act 2000 says 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. Section 53(5) says a person guilty of an offence under that section is liable, on conviction on indictment, to imprisonment for a term not exceeding “the appropriate maximum term” or to a fine, or to both; and, on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both. Section 53(5A) defines “the appropriate maximum term” as five years in a national security case or a child indecency case, and two years in any other case. Schedule 2 to that Act says that, subject to the other provisions of that Schedule, a person has the appropriate permission in relation to any protected information “if, and only if, written permission for the giving of section 49 notices in relation to that information has been granted” — in England and Wales, by a Circuit judge; in Scotland, by a sheriff; or in Northern Ireland, by a county court judge. Paragraph 4 of that Schedule applies to protected information falling within section 49(1)(a), (b) or (c) which is not information in the case of which paragraph 2 or 3 applies; paragraph 4(2) says that, subject to paragraph 6, where the statutory power was exercised, or is likely to be exercised, by the police, the police have the appropriate permission in relation to the protected information, without any grant of permission under paragraph 1. Paragraph 2 of that Schedule applies in the case of protected information falling within section 49(1)(a), (b) or (c) where the statutory power in question is one exercised, or to be exercised, in accordance with a warrant issued by the Secretary of State or a person holding judicial office, an authorisation under Part III of the Police Act 1997, or a targeted equipment interference warrant issued under section 106 of the Investigatory Powers Act 2016; paragraph 2(2) says that, subject to sub-paragraphs (3) to (5) and paragraph 6(1), a person has the appropriate permission in relation to that protected information (without any grant of permission under paragraph 1) if the warrant or authorisation contained the relevant authority’s permission for the giving of section 49 notices in relation to protected information to be obtained under the warrant or authorisation, or if, since the issue of the warrant or authorisation, written permission has been granted by the relevant authority for the giving of such notices in relation to protected information obtained under the warrant or authorisation. Paragraph 2(9) says that protected information that comes into a person’s possession by means of the exercise of any statutory power which is exercisable without a warrant, but is so exercisable in the course of, or in connection with, the exercise of another statutory power for which a warrant is required, shall not be taken, by reason only of the warrant required for the exercise of that other statutory power, to be information in the case of which paragraph 2 applies. Paragraph 6(2) of that Schedule says that, subject to sub-paragraph (3), a constable does not by virtue of paragraph 1, 4 or 5 have the appropriate permission in relation to any protected information unless he is of or above the rank of superintendent, or permission to give a section 49 notice in relation to that information has been granted by a person holding the rank of superintendent, or any higher rank.

Schedule 7 to the Terrorism Act 2000 is a separate power. Section 130(1) of that Act says that, subject to subsections (2) to (6), the Act extends to the whole of the United Kingdom. Paragraph 5(a) says a person questioned under paragraph 2 or 3 must give the examining officer any information in his possession which the officer requests. The Schedule 7 Code of Practice says information requested under paragraph 5(a) may include passwords to electronic devices; the same paragraph says an examining officer may not, however, compel a person to disclose or confirm the identity of a source of journalistic information or disclose information subject to legal privilege. That is a rule for the examining officer. As quoted, it does not give the person a right to refuse any Schedule 7 duty. The Code also says that the person must provide access to any electronic device to allow for a search to be undertaken, including where that requires the person to unlock a device through application of their thumb or finger, or any other form of access control. Paragraph 18(1) says a person commits an offence if he wilfully fails to comply with a duty imposed under or by virtue of the Schedule, wilfully contravenes a prohibition imposed under or by virtue of that Schedule, or wilfully obstructs, or seeks to frustrate, a search or examination under or by virtue of that Schedule; paragraph 18(2) says a person guilty of an offence under that paragraph is liable on summary conviction to imprisonment for a term not exceeding three months, a fine not exceeding level 4 on the standard scale, or both. This power is covered at ports and Schedule 7, and Scotland’s wider encounter rights are covered at rights and limits’ guide to what you must answer in Scotland.

Section 207(2) of the Police, Crime, Sentencing and Courts Act 2022 says that sections 37 to 44 (and Schedule 3) extend to England and Wales, Scotland and Northern Ireland.

Section 37(1) of the Police, Crime, Sentencing and Courts Act 2022 says an authorised person may extract information stored on an electronic device from that device if a user of the device has voluntarily provided it to an authorised person and has agreed to the extraction. Section 39(1) says a person (‘P’) is treated for the purposes of section 37 or 38 as having voluntarily provided an electronic device to an authorised person and agreed to the extraction of information from it only if the requirements of section 39 have been met. Under s.39(3)(d), an authorised person must have given P notice in writing stating that P may refuse to provide the device or agree to the extraction of information from it. Under s.39(3)(e), the notice in writing that an authorised person must have given to P must state that the investigation or enquiry for the purposes of which the information is sought will not be brought to an end merely because P refuses to provide the device or agree to the extraction of information from it. Section 40(1) says that, if any of conditions A to C is met, an authorised person may exercise the power in section 37(1) to extract information stored on an electronic device from that device even though the device has not been voluntarily provided to an authorised person by a user of the device, or no user of the device has agreed to the extraction of information from the device by an authorised person. Section 40(2) says Condition A is that a person who was a user of the electronic device has died, and the person was a user of the device immediately before their death. Section 40(3) says Condition B is that a user of the electronic device is a child or an adult without capacity, and an authorised person reasonably believes that the user’s life is at risk or there is a risk of serious harm to the user. Section 40(4) says Condition C is that a person who was a user of the electronic device is missing, the person was a user of the device immediately before they went missing, and an authorised person reasonably believes that the person’s life is at risk or there is a risk of serious harm to the person. Section 40(5) says the exercise of the power in subsection (1) of section 37 by virtue of this section is subject to that section.

Section 47(1) of the Criminal Justice (Scotland) Act 2016 says that nothing in that Part affects any rule of law by virtue of which a constable may exercise a power of the type described in subsection (2) — a power exercised in relation to a person by reason of the person’s having been arrested and charged with an offence by a constable. Section 47(3) says powers of that type include the power to seize any item in the person’s possession.