1. XR has already provided advice and guidance regarding risks of rebels having smart phones on their person when participating in XR activities and protests. https://cloud.organise.earth/apps/onlyoffice/s/QMHTinJKr4TNNQP
2. This document sets out the police powers regarding seizure, retention and examination of a phone.
3. The police do not have a general power to seize or ask for access to or to inspect your phone. A phone is not a prohibited item and so you are entitled to carry one.
4. However, if you are arrested, the situation changes. A person who is arrested may have their phone seized and retained by the police if the custody officer “has reasonable grounds for believing that [it] may be evidence relating to an offence” (see section 54 Police and Criminal Evidence Act”).
5. The police have further powers when lawfully in a premises to seize anything which is on the premises if [the officer] has reasonable grounds for believing—
(a) that it is evidence in relation to an offence which he is investigating or any other offence; and
(b) that it is necessary to seize it in order to prevent the evidence being concealed, lost, altered or destroyed.
(see section 19 Police and Criminal Evidence Act)
6. A ‘premises’ includes a vehicle, a tent or a moveable structure (see section 23 PACE).
7. These powers mean that the police may justify the seizing of your phone on the grounds that they believe that it may contain for example:
a) Communications between you and others regarding participating in or the organising of illegal activities. This would include much of the activities being proposed for the October Rebellion such as obstruction of a highway etc.
b) Footage/photographs taken of such activity;
c) Details of planning for future or past activities.
8. In order to obtain the data from your phone the police would need to be able to access it. This may prove difficult (but not necessarily impossible) if your phone is password protected/encrypted.
9. In normal circumstances, there is no requirement for you to provide the password to the police. Accordingly, we strongly advise that you do not
provide your password if asked. Any suggestion (by an officer or anyone) to the contrary should be ignored.
10. However, the police can make a written request for you to provide your password under section 49 of the Regulation of Investigatory Powers Act . A refusal to comply with such an order can result in a criminal prosecution. However, you still cannot be compelled to provide the password.
11. There are various conditions that need to be met before the police can exercise this power and that includes permission being granted by a Magistrate, a District or a Circuit judge. Such orders are rarely made but the police are making applications more frequently (or at least threatening to). So it cannot be ruled out they seek to use section 49 to try and gain access to, for example, devices being used by the organisers of some XR activity.
12. There are further provisions regarding criminal sanctions for not disclosing your password for an electronic device. But these relate to “acts of terrorism” which we do not consider to be applicable to the activities being planned as part of the October rebellion.
13. It should also be noted that following arrest, the police may retain your phone until their investigations are concluded, and that may be several months.
14. Further, the fact that you have ‘deleted’ material on your phone does not mean it cannot be retrieved by the police, if they gain access to it. It all depends on the amount of data contained on your phone, as deleted data will only usually be removed when space is needed for other data to be uploaded.
15. We would therefore suggest you bear the following in mind:
· Think very carefully before deciding to take your phone to any activity that is part of the October rebellion. If you do need a phone then it may be more sensible not to take your usual phone/SIM card, and instead, take one that doesn’t contain data that you would not want the police to have access to, and one you can do without.
· Bear in mind that footage/photos of any activity could be used as evidence against you or the people filmed/photographed, of participation in a criminal offence.
· If you do take a phone with you, make sure it is password locked.
· You should not comply with a request by the police to provide your password.
· For further reading see: