Policy background Extraction of information from electronic devices for purposes of a criminal investigation etc
With so much more of individuals’ lives being lived online, important information for the prevention, detection, investigation or prosecution of crime is now held on digital devices, such as mobile phones. This includes information from complainants and witnesses in criminal proceedings. The arrangements by which such information is made available to law enforcement agencies, prosecutors and the defence are critical to confidence in the criminal justice system and to meeting the right to a fair trial. Extraction of information from electronic devices has therefore become a more frequent and routine part of criminal investigations.
	In June 2020, the Information Commissioner’s Office published a report on police practice in England and Wales around the extraction and analysis of data from mobile phones and other electronic communication devices of victims, witnesses and suspects during a criminal investigation. The report identified inconsistencies in the approach taken by police forces to extract digital data and the complex legal framework that governs this practice. It recommended clarifying the lawful basis for data extraction and introducing a code of practice to guide this activity in order to increase consistency and ensure that any data taken is strictly necessary for the purpose of the investigation.
	Chapter 3 of Part 2 introduce a specific legal basis for the extraction of information from complainants’, witnesses’ and others’ digital devices. This will be a non-coercive power based on the agreement of the routine user of the device. It will be applicable to specified law enforcement and regulatory agencies, such as the police, who extract information to support investigations or to protect vulnerable people from harm. This will provide a nationally consistent legal basis for the purpose of preventing, detecting, investigating or prosecuting criminal offences and for safeguarding and preventing serious harm.
	These provisions also include sections to ensure authorised persons have proper regard for confidential information that may be on a device and how to deal appropriately with that possibility. Confidential information includes legally privileged material, journalistic material and protected material as defined in section 43. The confidential information sections require that authorized persons use the facts of the case insofar as they have them to assess the likelihood that the device will contain confidential information. This requires the authorised person to give separate consideration to the potential volume of confidential information held on the device, and its potential relevance to the purposes of the investigation, before taking a view as to whether to rely on these powers to extract information. This is intended to strike an appropriate balance between safeguarding against improper access of confidential information, and enabling information to be extracted where it is appropriate to do so.