3 September 2020
Wanting unrestricted access to search mobiles the Police appealed the CFI’s decision.
The Police argued when someone was lawfully arrested that the power to conduct a search of them and all material in their possession was a power incidental to an arrest in all circumstances and all cases as a matter of common law so the right to search a mobile existed at all times and not just in an emergency situation as the CFI had held earlier.
To support their arguments the Police stated delays to obtain a search warrant to review a mobile may compromise their ability to follow up leads which could be identified from information obtained from the search: particularly because modern technology means that there is often a very short window after someone’s arrest before their mobile automatically locks.
The point was raised that the law should recognize new challenges presented by the use of mobiles as instruments of crime and therefore the legitimate needs of all law enforcement officers to be able to combat such crime by searches of mobiles.
Scope of Police’s power
While numerous arguments for unrestricted searches were made, the Court of Appeal was however concerned to protect a suspect against the risk of a wholesale invasion of their privacy.
There would be little to stop this from happening if the search of a mobile was constrained only by the requirements that the arrest be lawful, that the search be truly incidental to it and reasonably conducted.
Balancing the privacy rights protected by Article 14 2 of the Bill of Rights and Article 30 3 of the Basic Law, the Court of Appeal held the power to search a mobile seized on a person’s arrest can be exercised by the Police if:
(i) It is pursuant to a search warrant obtained under section 50(7) PFO; or
(ii) The search happens when it is not reasonably practicable to obtain a warrant beforehand and the Police officer concerned must also have a reasonable basis for having to conduct the search on an immediate basis, namely it being necessary:
(a) for the investigation of the offence for which the person’s involvement was suspected, including the preservation of information or evidence connected with such offences; or
(b) for the protection of the safety of persons (including the victim(s) of the crime, members of the public in the vicinity, the arrested person and the Police officers at the scene);
(iii) For a warrantless search conducted under (ii) above, other than a cursory examination for filtering purposes, the Court of Appeal held the scope of any detailed examination of the mobile should be limited to items relevant to objectives set out in sub-paragraph (ii)(b): so for safety
reasons; and
(iv) A Police officer should make an adequate written record of the purpose and scope of the warrantless search as soon as reasonably practicable after the search and a copy of the written record should be supplied forthwith to the arrested person.
For further information, please contact:
Katherine Liu, Partner, Stephenson Harwood
katherine.liu@shlegal.com