How Do Police Use Cellular Telephone Proof in Possession with Intent to Provide Instances?

September 1, 2023by Naomi Cramer


Possession with intent to provide a managed drug is a prison offence below part 5(3) of the Misuse of drugs Act 1971. The offence will be damaged up into 4 elements:

  1. Possession
  2. with intent
  3. to provide
  4. a managed drug

Possession – For the needs of this offence, possession means to knowingly have drugs in your custody or below your management. Possession shouldn’t be the identical as possession; an individual who’s taking care of drugs for another person nonetheless has possession of the drugs regardless that they don’t personal them.

An individual can possess drugs even when they aren’t holding them on the time, as long as the drugs are below their management (e.g. if they’re being saved again on the individual’s handle).

Multiple individual can have possession of a amount of drugs on the identical time if these individuals all have management of the drugs. This is called “joint possession”.

Possession requires data that the drugs are below an individual’s custody or management. For instance, if an individual places on a good friend’s coat which has a amount of drugs within the pocket, however the individual was unaware there have been drugs within the pocket, then the individual shouldn’t be in possession of the drugs. The individual lacks data of the drugs and so they aren’t in possession of them.

Intent – The offence doesn’t require an precise provide of drugs to happen. It’s sufficient if the one that has possession of the drugs intends to provide the drugs to another person sooner or later.

The offence doesn’t require a plan to provide the drugs to a particular individual at a particular time. Reasonably, a common intent to provide the drugs to another individual in some unspecified time in the future sooner or later is sufficient.

Provide – Provide means to offer the drugs to a different individual. Provide doesn’t require cash to change palms; it nonetheless quantities to provide if the drugs are given to a different individual freed from cost.

It nonetheless quantities to provide even when an individual offers the drugs again to their proprietor. If an individual is taking care of a amount of drugs quickly for a good friend after which offers the drugs again to the good friend at a later date, that might nonetheless quantity to provide.

Managed drugs – All managed drugs are listed within the Schedule 2 of the Misuse of Medicine Act 1971. Managed drugs are divided into three lessons: A, B and C. Class A drugs offences carry essentially the most extreme penalties, then class B, then class C carry the bottom penalties.

The most typical drugs which fall into class A are heroin and cocaine, however class A additionally contains drugs similar to LSD, magic mushrooms, crystal meth, morphine and different opiates.

The most typical drug which falls into class B is hashish, however class B additionally contains drugs similar to artificial cannabinoids (like “Spice”) and ketamine.

Class C drugs are typically weaker managed drugs. They’re typically drugs that may be lawfully possessed if obtained from a physician with a prescription, similar to diazepam (also referred to as Valium).

The police have seized my cellphone, do I’ve to offer them my pin code?

The straightforward reply is “no”, however there could also be penalties if you happen to don’t.

Usually, there isn’t any requirement on somebody who’s arrested by the police to actively help the police with their inquiries. Which means that there isn’t any common requirement for an individual at hand over their PIN code if the police seize their cell phone.

Nevertheless, there’s a particular police energy below part 49 of the Regulation of Investigatory Powers Act 2000 which can apply in your case.

S.49 permits police to serve a discover on an individual requiring that individual to supply a “key” to any “protected info” which the police have seized. This might embody requiring an individual at hand over a PIN code to a cell phone which has been seized by the police.

There are a selection of limitations on the ability below s.49. A police officer giving a s.49 discover should:

  • Get written permission to offer a s.49 discover from a District Decide or Circuit Decide.
  • Be of at the very least the rank of Superintendent, or be a police officer who has been particularly authorised by an officer of at the very least the rank of Superintendent.
  • Fairly imagine that the individual receiving the discover is aware of the PIN, that the discover is important for the needs of stopping or detecting crime, and that the necessities within the discover are proportionate.

The s.49 discover itself should:

  • Be given to the recipient in writing, or in any other case in a fashion the place a file of the discover will be made (e.g. orally, throughout a tape recorded interview).
  • Describe the “protected info” (e.g. a PIN locked cell phone) to which it relates.
  • Describe what info the recipient of the discover is required to supply (e.g. a PIN code), how the data must be offered (e.g. orally or in writing) and the time by which it should be offered.

If the above situations are glad and a s.49 discover is served on an individual, then it’s a prison offence for the individual to not hand over the PIN.

I’ve personal pictures on my cellphone, so I don’t want to give the police the pin code. What are the results?

If no s.49 discover has been served on you then there isn’t any requirement at hand over your PIN. Nevertheless, if you’re subsequently dropped at trial for possession with intent to provide a managed drug, or every other offence, then the truth that you did not disclose your PIN when requested to take action might be introduced up as proof at your trial that you have to have had one thing to cover.

You additionally could not have your cell phone returned to you by police if you happen to fail at hand over your PIN when requested, because the police might argue that there might be necessary proof or illicit materials on the cellphone which they haven’t been capable of study.

Breaching the necessities of a s.49 discover is a crime. So, if a sound s.49 discover has been served on you requiring you to reveal your PIN and also you fail to take action, you’ll probably have dedicated an offence.

The utmost sentence for that offence is 2 years’ imprisonment. Latest circumstances involving individuals failing to adjust to s.49 notices issued in prison investigations have resulted in sentences of round eight to 18 months’ imprisonment.

Can the police hack an iPhone?

Trendy iPhones have very excessive ranges of safety. The knowledge on them is encrypted so it’s virtually unattainable to entry the data saved in iPhones with out the related PIN or password.

Nevertheless, there are two potential ways in which the police can attempt to “hack” into an iPhone in the event that they don’t have a PIN or password.

The primary is called “brute-force” hacking. This includes making an attempt to guess the PIN by a technique of trial and error. The police have entry to software program which might cycle by each attainable mixture of numbers, making an attempt every mixture as a attainable PIN.

This can be a very sluggish course of and can usually solely achieve success if the PIN is comparatively easy (e.g. a four-digit PIN with repeated numbers). In an effort to pace up this course of, the police typically strive to determine extra probably PIN potentialities from any private info they’ve concerning the proprietor of the cellphone. For instance, necessary dates such because the proprietor’s birthday or birthdays of family members, if they’re identified to the police, will probably be tried first as PINs.

One of the best ways to guard towards brute-force hacking is to make use of longer PINs or passwords (at the very least six digits) and to not use any apparent mixtures of numbers.

Secondly, safety or know-how corporations typically declare to have recognized a weak point in iPhone safety software program. Some such corporations have offered software program to police and intelligence providers which allegedly exploits these weaknesses in order to permit the person to “hack” iPhones.

Nevertheless, these weaknesses are often recognized and corrected by Apple in future software program updates. Which means that the effectiveness of any such safety software program is short-lived. Additionally, such software program is invariably extraordinarily costly. Which means that most police forces should not have entry to the software program, and it’s unlikely it will be utilised in a “easy” case of possession with intent to provide drugs because of the prices concerned.

The top result’s that, as long as you don’t use a easy of apparent PIN or password to your iPhone, it is extremely unlikely that the police can hack into it.

How can the police show a cellphone belongs to me?

The police will have a look at a spread of things and circumstances to be able to attribute possession or use of a selected cell phone to a selected particular person. This will embody the next:

  • The place the cellphone was discovered – was it discovered on a selected individual or at a selected handle?
  • Subscriber particulars – is the cellphone quantity attributed to the cell phone registered in anybody’s title?
  • Contact particulars –contacts saved on the cellphone could help with attribution, e.g. if there’s a quantity saved on the cellphone below the title “Mum” which the police know is your mom’s quantity, then that might help attributing the cellphone to you.
  • Name patterns – the sample of calls and messages on the cellphone could help with attribution, e.g. if the cellphone is principally contacting different numbers which the police know belong to your family and friends, that might help attributing the cellphone to you.
  • Message content material – the content material of textual content messages, WhatsApp messages, Fb messages and many others will be downloaded from cell phone handsets. These messages could help attribution e.g. in the event that they consult with the title of the cellphone person.
  • Social media/electronic mail accounts – quite a few social media, electronic mail and different private accounts will be linked to fashionable good telephones, which can help attribution of the cellphone to the proprietor of these accounts.
  • Cell-site – cell phones hook up with radio masts known as “cell-sites” each time a name or textual content is made or acquired, or knowledge is used. Telephone corporations hold a file of each cellphone quantity’s cell-site connections over the past 12 months. Police can use these information to find out the final location of a cellphone at a selected time by analyzing the situation of the cell-site mast it related to at the moment. Cell-site proof can’t place a cellphone at a precise location, however it may be used to show that the cellphone was within the common space of a selected mast at a selected time, or to indicate common patterns of motion of the cellphone. Cell-site knowledge can be utilized to help attributing a cellphone quantity to an individual. For instance, if a selected cellphone quantity may be very steadily connecting to cell-sites close to an individual’s house, that might help attributing the cellphone quantity to that individual.

 What info is held on my SIM card?

A SIM card shops the precise cell phone quantity and particulars of the community supplier which that quantity is linked to e.g. EE, Vodafone, O2.

Utilizing this info, the police can contact the related community supplier and request the registered particulars of the cellphone quantity’s person (often called “subscriber particulars”) and the decision information and cell-site knowledge of the cellphone quantity for the final 12 months.

If in case you have a pay month-to-month contract cellphone, or in case you have a Pay As You Go cellphone and have registered the cellphone quantity in your title, then the subscriber particulars will embody your title and different private info which you offered to the community supplier whenever you signed the contract or registered the SIM.

If in case you have a Pay As You Go cellphone and you’ve got by no means registered the SIM in your title, then the subscriber particulars will most definitely be empty.

A SIM card may also be used to retailer further info similar to cellphone contacts, textual content messages or name historical past. Whether or not or not a SIM card incorporates this sort of info will rely upon the settings of the cell phone handset wherein the SIM card was used.

As an example, cell phone handsets have settings choices that enable acquired and despatched textual content messages to be saved on the SIM card as a substitute of, or along with, the handset’s inner reminiscence. Equally when saving new contacts, cell phone handsets give the choice of saving the contact to the handset itself or the SIM.

What info is held on my precise system?

The quantity of knowledge saved on a cell phone handset will depend on the way it has been used. Nevertheless, fashionable smartphones, together with iPhones, can retailer an enormous quantity of non-public info. This contains:

  • Textual content messages
  • Name historical past
  • Saved contacts
  • Social media accounts and usernames (if linked to the handset)
  • E-mail accounts (if linked to the handset)
  • WhatsApp messages (if WhatsApp is put in)
  • Fb Messenger messages (if Fb Messenger is put in)
  • Location knowledge historical past
  • Pictures and movies taken on the system, or acquired through electronic mail of social media accounts
  • Internet use historical past
  • Any info in cloud-based storage services that are linked to the handset

Police have specialist software program which might obtain the saved info from a cell phone handset and SIM card. The software program could even be capable to recuperate deleted messages and knowledge, though the power to retrieve deleted info depends on components such because the size of time which has handed because the info was deleted.

What sort of proof are the police searching for on my cellphone? And the way is it utilized in proof towards me?

If in case you have been arrested on suspicion of possession with intent to provide a managed drug, the police might be searching for proof that you’ve been concerned in supplying drugs. This might embody the next:


If an individual has been arrested for suspected involvement in avenue dealing of a managed drug – what could be known as a “regular” investigation for possession with intent to provide – then the police will primarily be searching for proof of drug dealing contained in messages on the individual’s cellphone.

Police typically search for “promoting messages”; messages despatched to a lot of contacts promoting the kind of drugs on the market.

Additionally they search for incoming messages which look like from potential prospects, similar to messages asking if the cellphone person is “on” or “about”, or asking for portions and kinds of drugs.

Such messages are sometimes written in slang or code. For instance, cocaine is typically marketed as “white” or simply “w”. Police forces have specialist officers who’re conversant in such slang who will analyse the messages on a cellphone.


The police could search for proof of who owns a cell phone. This is called “attribution”. If an arrested individual admits {that a} cellphone is theirs, then attribution is easy. Nevertheless, if nobody has admitted {that a} explicit cellphone belongs to them, or if an individual is discovered with a cellphone however denies it’s theirs, then the police will search for proof of attribution similar to these classes of proof listed above within the part on “How can the police show a cellphone belongs to me?

Contacts and cellphone use

The police could search for proof of who the person of a cell phone has contacted. This can be related in bigger drugs investigations, similar to these involving alleged conspiracies to provide drugs.

For instance, if the police have arrested a number of people who’re suspected to be a part of a conspiracy to provide drugs, then the police could search for proof that the assorted people’ cell phones have been involved.

Isn’t proof obtained from my cellphone rumour and thus inadmissible in court?

Most likely not.

Rumour guidelines solely apply to proof that incorporates statements of truth or opinion. A lot of the proof which will be obtained from cell phones doesn’t fall into this class. For instance, pictures and different pictures, name historical past, cell-site knowledge and contacts info won’t usually be thought of rumour proof as a result of they comprise no assertion of information or opinion.

The one class of proof the place rumour is more likely to come up as a difficulty are messages, similar to texts and WhatsApp. Whether or not or not such proof quantities to rumour requires cautious consideration, however typically such proof won’t be rumour. The Court of Enchantment gave fairly detailed steerage on the way to method the contents of messages and whether or not they quantity to rumour within the case of Twist [2011] 2 Cr App R 17.

If you’re the individual arrested, then any messages despatched by you don’t quantity to rumour, as rumour guidelines don’t apply to statements made by a defendant themselves.

Messages acquired to your cellphone from others could quantity to rumour proof, however will accomplish that provided that the next situations are met:

  1. the sender of the message shouldn’t be a witness within the proceedings,
  2. the message incorporates a press release of truth or opinion which the prosecution want to show to be true, and
  • the sender of the message supposed you to imagine the assertion or act upon it as if it had been true.

This may increasingly sound fairly sophisticated, and it’s. Skilled lawyers and judges typically have prolonged arguments and disagreements about whether or not a bit of proof quantities to rumour. Nevertheless, it’s value noting that quite a lot of messages which the police depend on as proof in drugs circumstances don’t meet these standards, and so don’t quantity to rumour. For instance, a message despatched by a possible buyer asking to be provided a amount of a managed drug wouldn’t quantity to rumour as a result of it’s merely a query and incorporates no assertion of truth or opinion. Such a message might nonetheless be relied on as proof that the recipient of the message was concerned in supplying drugs.

Additionally it is value noting that, even when a message does quantity to rumour, that doesn’t essentially imply it’s inadmissible in court. The prosecution can apply to confess rumour materials as proof in a trial if it meets sure standards. The related standards are contained in sections 114 and 116 of the Criminal Justice Act 2003. They embody it being within the pursuits of justice to confess the fabric as proof on the trial, and that the maker of the rumour assertion can’t be discovered regardless of all moderately practicable efforts being made to search out them.

What’s the process the police should comply with when downloading the contents of a cellphone?

There are some procedures that apply to all gadgets seized by police as potential proof. One such necessary precept is called “continuity”. Which means that a cellphone handset should be correctly seized and exhibited by the police, and {that a} correct file should be saved of any dealings with the cellphone.

A cellphone handset will usually be exhibited by whichever police officer initially takes possession of a cellphone. That officer ought to give the cellphone an exhibit quantity, which is often the police officer’s initials adopted by a quantity. The method of seizing and exhibiting the cellphone ought to then be recorded in writing, often in a witness assertion.

The police should then hold a paper path of each particular person – whether or not a police officer or different individual concerned within the investigation – who subsequently handles the seized cellphone. Once more, that is usually completed by anybody who handles the cellphone writing a witness assertion to explain when, the place, how and why they dealt with the cellphone, and what they did with it afterwards.

Along with the procedures that apply to all displays, there’s additionally particular police steerage and procedures which apply to telephones and different digital proof. The Affiliation of Chief Police Officers has issued a Good Apply Information for Digital Proof. This contains 4 key ideas:

  1. No motion taken when coping with digital proof ought to in any method alter the proof which can subsequently be relied upon at court.
  2. The place a police officer or different investigator has to entry the unique digital knowledge, that individual should be competent to take action and be capable to give proof explaining the relevance and the implications of their actions.
  • An audit path of all dealings with the digital proof must be created and preserved.
  1. The individual answerable for the investigation has general accountability for guaranteeing that the legislation and these ideas are adopted.

Many investigating officers now have coaching in coping with digital proof similar to the fabric contained on cellphone handsets. In an effort to obtain the contents of a cellphone handset, an officer can use specialist software program which mechanically downloads a cellphone handset’s contents into an simply readable report with little further motion required by the officer.

What are the results if the police fail to adjust to these procedures?

If the police fail to file correctly the continuity of a seized cellphone handset, it could imply that any proof arising from the handset is dominated inadmissible. That is probably provided that the break in continuity is such that it’s not clear whether or not the cellphone in query is identical one which was initially seized.

The results of different procedural failures rely upon the severity of the failure. If the failure causes a big prejudice to a defendant such that it will not be truthful to depend on proof obtained from the cellphone, then a decide might exclude the proof at a subsequent trial. For instance, if a police officer unintentionally deleted the unique knowledge from a cellphone and it couldn’t be examined by the defence, then any materials which had been extracted from the cellphone by the police would probably be excluded as proof.

In apply, these varieties of considerable errors are uncommon on condition that a lot of the work concerned in extracting knowledge from telephones is automated, and so the potential of human error is minimised.

I’ve been arrested and launched below investigation; how lengthy can the police hold my cellphone?

After a cell phone has been seized, part 22 of the Police and Criminal Proof Act 1984 permits the police to retain it for sure functions, together with:

  • to be used as proof at a trial for an offence, or
  • for forensic investigation in reference to an offence.

There isn’t any particular restrict on the size of time the police can retain a seized cellphone for these functions. In apply, how lengthy they maintain it can rely upon what was causing seizing it within the first place.

If in case you have been arrested on suspicion of involvement within the provide of drugs, and the cellphone was seized as a result of the police believed it could comprise proof, then it is going to be retained for at the very least so long as it takes for them to hold out evaluation of the cellphone and obtain its contents. Technical evaluation of telephones can take a number of months as there’s a important back-log with most police forces for finishing up evaluation of digital gadgets.

If, following evaluation, it’s confirmed that the cellphone doesn’t comprise any related proof, then it must be returned to you. If, nevertheless, the police resolve that the cellphone incorporates proof related to a suspected offence with which you’re charged, then the cellphone will be retained till the conclusion of any trial for that offence.

If you’re convicted at that trial or plead responsible to an offence, then your cellphone could also be forfeited below part 27 of the Misuse of Medicine Act 1971 and you could by no means get it again.

One consequence of the police energy to retain a cellphone as suspected proof is that, if you happen to refuse at hand over your PIN, then your cellphone could by no means be returned because the police can argue that they’ve been unable to evaluate whether or not it incorporates something of evidential worth.

Creator: Michael Goold – Backyard Court Chambers


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by Naomi Cramer

Auckland Lawyer for FIRST TIME Offenders Seeking to Avoid a Conviction. Family Law Expert in Child Care Custody Disputes. If you are facing Court Naomi will make you feel comfortable every step of the way.  As a consummate professional your goals become hers, with customer service as our top priority. It has always been Naomi’s philosophy to approach whatever you do in life with bold enthusiasm and pure dedication. Complement this with her genuine passion for equal justice and rights for all and you have the formula for success. Naomi is a highly skilled Court lawyer having practised for more than 20 years. She serves the greater Auckland region and can travel to represent clients throughout NZ With extensive experience, an analytical eye for detail, and continuing legal education Naomi’s skill set will maximise your legal rights whilst offering a holistic approach that best fits your individual needs. This is further enhanced with her high level of support and understanding. Naomi will redefine what you expect from your legal professional, facilitating a seamless experience from start to finish.   Her approachable and adaptive demeanor serves her well when working with the diverse cultures that make up the Auckland region. Blend her open and honest approach to her transparent process and you can see why she routinely delivers the satisfying results her clients deserve. If you want to maximise your legal rights, we recommend you book an appointment with Naomi today so she can detail the steps for you to achieve your goals. 

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