Phone extraction under the PCSC Act 2022: ss.37, 39 and 40

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 that user has agreed to the extraction of information from the device by an authorised person.

Section 37(13) says “electronic device” means any device on which information is capable of being stored electronically and includes any component of such a device, so the definition is not limited to phones.

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 37(5) says an authorised person may exercise the power only if satisfied that exercise of the power is necessary and proportionate to achieve the purpose for which they propose to exercise it. The Code says an authorised person “must only exercise the Section 37 power for the purposes of preventing, detecting, investigating, or prosecuting crime if they reasonably believe that information on the device is relevant to a reasonable line of enquiry”, and that the authorised person “will have to be satisfied that the information sought is required to achieve the relevant purpose, e.g., preventing crime, and that the purpose cannot be achieved by other less intrusive means”.

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.

See also rightsandlimits.com’s page on victim phone extraction. Related situations are covered on the page on a complainant who is asked for a phone and the page on the phone of someone who has died.

The Code says it “only applies as regards the powers in Chapter 3 of Part 2 of the Act” and that “If another power is being used as the basis for extracting information from an electronic device, the guidance/code for that power will apply.” It also says: “Information which is extracted and deemed not relevant must be deleted unless there is a lawful basis to retain it.”