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Section 19 of PACE (the Police and Criminal Evidence Act 1984) states:

(3) The constable may seize anything which is on the premises if he 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.

It has been suggested by officers on YouTube videos that the person recording the video has evidence of a crime on their mobile, that they've recorded; thus they're seizing their phone under PACE. But section 19.6 states:

(6) No power of seizure conferred on a constable under any enactment (including an enactment contained in an Act passed after this Act) is to be taken to authorise the seizure of an item which the constable exercising the power has reasonable grounds for believing to be subject to legal privilege.

So my question is: what stops someone about to have their mobile seized from telling the police officer that there is legally privileged information on their phone? They could even keep an email from a solicitor on it, which would fulfil the requirement.

Would this legally prevent them from seizing the phone?

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    @Chad Why would the carrier have access to a phone? The device manufacturer and OS supplier might technically have access (e.g. by deploying a malicious update), but I'm not sure that'd count as having access in a legal context. – CodesInChaos May 27 '15 at 7:00
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    @CodesInChaos is right: the carrier doesn't have direct access to things stored on a phone just by virtue of them being your carrier. – Flup May 27 '15 at 8:47
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    @Chad You missed out the OS with 82% of the market share... Android! So maybe the NSA has a backdoor in it, but this is outside the spectrum of 'legal', especially since the question pertains to the UK. Regardless, Google has said before that a pattern lock is impossible for them to crack. They've had subpoenas for it in the past and have denied them. – Danny Beckett May 27 '15 at 17:46
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    @Chad citation needed – o0'. May 29 '15 at 19:40
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    @Chad you've taken this in a direction that veers away from the question being asked. The question is about asserting a protection in the field to prevent a phone from being seized, not about what might happen to it after it has been seized. – Jason Aller Jul 23 '15 at 18:17
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I am not very familiar with UK statutory law, however I read the the statute a bit differently. The operative terms are reasonable grounds for believing to be subject to legal privilege.

Reasonable grounds does not mean that the perpetrator says there are privileged materials on the phone. It means independent grounds, like finding a letter with the letterhead of a lawyer; if a constable see's this letterhead and they are seizing all documents from a premises, that would need to be left behind. Even in the event the constable believes there are, for instance, emails that are privileged on the phone, but also has reasonable grounds to believe the phone contains crucial evidence, they can just not seize the privileged materials.

So, sticking with the attorney-client privilege for the purposes of the answer (despite there being others), the constable would not be able to view those communications, but would be able to view, say photographs, if there was information that there were photographs of stolen goods or a drug lab on the phone. Seizure of a thing can occur without seizure of the entire thing.

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    How would a constable seize a thing, without seizing the entire thing, when that thing is a phone? – Dan Henderson Oct 16 '18 at 22:13
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I'm not going to comment on the specifics of this law; rather, I think this question shows a misconception of the way the legal system works in general.

Here's the question: do you actually have "legally privileged" material on your phone? If not, what's keeping you from claiming that is that it's not true, and lying to a police officer is a bad idea.

And just putting a letter from your lawyer on the phone doesn't mean you've established a legal privilege--attorney-client privilege is not a magic spell, it's a reasonable system of protection that only covers certain communications.

The bottom line is: the statute in general, and that clause in particular, were included in the law to protect real, important, and substantial legal right. The courts interpret the law in light of that purpose. If the police officer finds a solution that protects your rights while still carrying out the purpose of the statute, the court will be unlikely to fault him or her. In this case, if you tell the officer that there is a letter from your attorney in a particular folder, the obvious solution is for the officer not to open that folder. Problem solved.

In practice, in the United States at least, these cases are dealt with routinely; computers are seized, and attorneys and judges work together to ensure that privilege is protected while still allowing reasonable access to seized materials. I would imagine the same is true in the U.K.

The bottom line is: the law is not a game, and technical "gotchas" are rarely effective. Common law systems allow judges enough leeway to avoid this sort of pointless technicality.

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    Technical gotchas are effective, but they are far more complicated than just putting a file on a computer or phone. The Dutch Sandwich would be an example of a technical gotcha that is effective. – Chad May 27 '15 at 16:13

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