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 into an offence, police commonly seize the phone of an accused person. The police will then look through the phone for evidence relating to the offence that they are investigating. If a phone contains a large amount of material, the police will then use special software to download the entirety of the phone. This allows the police to retain a full copy of the phone, but also to search the contents of the phone more easily.

There is no clear answer to this question as 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.

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.

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 cannot 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 is unlikely to be returned to you as it 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.

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.

Conclusion

Generally, if police seize your phone, and download it and there’s no relevant evidence on it, you should be able to get your phone back before the conclusion of your case. 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.