When the Mackenzie Cuthbertson team was asked about the most commonly asked question we get during the late-night phone calls or visits to arrested clients, there was a simple answer. Director and our lead Barrister & Solicitor, Tom Cuthbertson, said:
The police have just asked me to give them my password to my phone, or my computer. Do I have to unlock my phone for the police? Can the police get my password or pin? That’s very common and something you see in drug trafficking, child pornography, theft, dishonesty and assaults.
The short answer is no. With some qualification, and you should definitely ring a lawyer, unlocking your phone, computer or iPad for the police is not required and unlikely to help you at all. At the stage the police seize your phone, they aren’t “clearing things up” or hearing “your side of the story”, they are most likely going to arrest you whether you give them a password or not.
When you arrive at that point of the inquiry, it’s essential to bear in mind your right to silence and right to legal representation. Rarely have I come across a case where a client helped himself by saying anything at all to the police.
Research associate and law clerk, Nick Murphy, explained that mobile phones in this age are more than just phones. Nick has had experience in cases where Instagram, Snapchat and email all played a role. He said:
When you give someone access to your mobile, it will give the police access to your Snapchat, your iCloud, e-mail your metadata about where you took photos, it’ll show your emails, who you correspond with. I’ve helped Tom in a case where Snapchat messages were able to be recovered by police long after they expired..
What if you already gave your password or pin-code to police? Can the police get into an iPhone without your pin or password? Can the police get into an android without your pin? Mr Cuthbertston noted these were common questions from clients after they’d been arrested:
In my experience, if you have the latest iPhone with a six-digit pin, it’s pretty much impenetrable. I’ve worked with experts before who have told me iCloud is very secure and hard to breach without the password. Android is very difficult, I’ve been involved in cases where apparently police have managed to get into android phones and in cases where they have seized phones but not managed to get into them.
If you’ve already given the code to your phone to police, you can, in certain circumstances, attempt to have any evidence or material gathered from that phone thrown out of court on the basis that you were under an apprehension you were required to provide it.
While it’s not common, I’ve certainly seen cases where notwithstanding a client not wanting to answer questions and ‘pleading the fifth’ so to speak, they are asked for a phone code in the context of say, a DNA test, which is in fact mandatory. There’s a lot of law that says that the police ought not do that sort of thing and, that when they do, they shouldn’t be allowed to use it.
It’s a tricky area, but Mackenzie Cuthbertson, experts in drug law, child pornography law and criminal law experts take a professional and meticulous approach to any case involving mobile telephones. We’re unashamed of protecting the privacy of our client’s and don’t believe that the police ever have a right to scrutinise one’s personal messages without the permission of one of the parties.
We’re experts in criminal law, drug law and unlawful search experts. You can book an appointment with one of our team now for a review of your case, without charge. Alternatively, if you want to have a chat, you can call Alexia ( 0431743812), Tom (0423534621 ) or Nick (0405088357) to discuss your case, or email us. We’re always happy to have a chat with you for free to determine whether we can help you.
*Any advice is general in nature and ought not to be relied on as bespoke advice. If you’ve been charged, or there’s an action against you, relying on blogs is plain silly. Call us, legal aid or anyone, but don’t rely on blogs for defence, just give us (or any lawyer specialising in criminal law) a call.