Obtaining data from digital devices – new guidance released

Police forces must take a consistent approach when examining data from mobile phones and other digital devices to balance the rights of individuals with the need to carry out thorough independent investigations, our new national guidance says.

The widespread use of digital devices, mainly mobile phones but also laptops and other computers, mean the materials they contain, including text messages and photos, can often provide crucial evidence in criminal investigations and prosecutions.

The College’s Authorised Professional Practice (APP) on the extraction of material from digital devices provides clear guidance for forces in England and Wales to ensure the way police obtain material from digital devices complies with legislation and balances people’s rights to privacy against the absolute right of all individuals to a fair trial.

The guidance is intended to provide a clear summary of the powers and obligations which police have under the Data Protection Act 2018 and how that should be used with other relevant legislation and case law.

It provides police officers and staff with a set of principles to inform how they obtain personal digital devices – most often mobile phones but also laptops and other computers – from victims, witnesses and suspects for the purpose of an investigation and how they then extract the digital material from those devices.

It will also help the public to understand the responsibilities of the police when gathering evidence, obtaining devices and accessing the material held on them.

In the case of victims and witnesses, the guidance aims to ensure that material from mobile phones and other devices is obtained with their informed agreement and with minimal intrusion to their private lives.

It is crucial that police investigators balance the need to follow all reasonable lines of enquiry to conduct fair and independent investigations, with the need to respect the privacy of individuals.

Our guidance has been developed to help ensure there is greater consistency in how police request and gather digital evidence in any investigation and that the needs and rights of victims and witnesses are at the heart of the criminal justice process.

This is an extremely complex issue, with police often having to review huge volumes of data, but it is vital officers only view information which is strictly necessary for the investigation and victims and witnesses understand the process and give fully informed permission.

We understand there are concerns from privacy groups and campaigners about the volume of data being extracted and the impact this intrusion could have on victims, particularly in cases involving allegations of serious sexual assault.

The College has worked with all parties to get this right and we carried out a detailed public consultation to develop new guidance which delivers fair and just criminal justice processes for everyone.

David Tucker, crime lead, College of Policing

The guidance has been developed following a 2020 report from the Information Commissioner’s Office (ICO), which recommended the creation of a better set of rules about when, why and how the police and other law enforcement agencies could use mobile phone extraction. The College has also published an equality impact assessment to help forces implement the new guidance.

The APP – to help ensure that there is a comprehensive understanding of the expectations on police when it comes to investigations involving data extraction – contains specific information and guidance for all policing roles that could have an involvement, from first responders through to chief officers.