In criminal cases, a commonly asked question is when an accused person can get their phone back after it has been seized by police. As part of an investigation, police almost always seize an accused person’s phone. They then search the phone for evidence relating to the offence that they are investigating. If a phone contains a large amount of material, the police use special software to download the phone contents. This allows the police to retain a full copy of the phone, but also to search the phone more easily.

There is no clear answer to the question of when you may get your phone back. It depends upon a number of factors, outlined below.

Factors relevant to when you may get your phone back from police

1. Have the police completed their analysis of the phone?

The police have broad powers to seize things relevant to an offence, such as a phone, and to then do a forensic examination on the phone. Under the relevant legislation, namely the Criminal and Found Property Disposal Act 2006, police are allowed to retain your seized phone for as long as it takes to do a forensic examination on it, meaning as long as it takes to download the phone and determine if it has any relevant evidence on it. As long as the police are progressing an analysis of your phone, generally they can hold onto it for as long as it takes.

Accordingly, the first thing you must determine when trying to figure out when you can get your phone back, is whether police have downloaded and analysed the phone. If they haven’t, it could take a significant amount of time for this to occur, particularly given the backlog with the number of phones that are seized by police.

The police must progress the analysis however and the firm has had success in having a phone returned via court proceedings when it took over 18 months to analyse a phone without charges being laid.

2. Does the phone have any relevant evidence on it?

If the phone has nothing relevant on it, police should release it to you after they have completed their analysis of the phone. The police can’t just hold onto seized items of no evidentiary value. If the police refuse to provide your phone back after confirming there’s nothing relevant on it, you can make an application to the court for return of the phone.

If your phone has relevant evidence on it, then the police are entitled to hold onto the phone until the completion of your matter. That is, until you are either acquitted of the charge or found guilty and sentenced. If acquitted, you are entitled to have your phone returned to you. If you are found guilty and sentenced, the phone may be retained to preserve its evidentiary value in the event of an appeal or retrial. There is also the further risk that an order for forfeiture or destruction of the phone may be made at sentencing, even if it has no real evidentiary value, and this would result in the phone not being returned to you.

However, if no order for forfeiture or destruction is made at sentencing, and the appeal period has passed, the police should then return your phone to you. Failure to do so would necessitate making an application to the court for return of the phone.

3. Is there a risk of the phone being used in the commission of an offence?

Police can refuse to return your phone, even if there’s no relevant evidence on it, if there is evidence it may be used in the commission of an offence. For example, if it is a Cyphr phone suspected of being used in drug dealing offending, or if a phone is suspected to have been used in an extortion or threats case.

4. Are there any criminal property confiscation proceedings on foot?

Even if the phone has no evidentiary value, police can refuse to return it if, for example, you are liable to be declared a drug trafficker, or if the phone may be confiscated for other reasons under the confiscations legislation. In these situations the phone would be confiscated as criminal property notwithstanding that it didn’t contain evidence of a specific offence.

Conclusion

Generally, if police seize your phone, download it and find no relevant evidence on it, you should be able to get your phone back before the conclusion of your case. When you will get it back depends on how long it takes to download it, which can be a significant period depending on the police backlog of phones to analyse.

However, there are a variety of different reasons why police may hold onto your phone either until the end of your matter, or permanently. If you require expert advice concerning the return of your phone in your case, don’t hesitate to contact James Jackson Criminal Defence today.