Date lodged: 4 May 2018
To ask the Scottish Government which statutory powers permit the police to seize a phone and examine it for evidence, and whether witnesses can be compelled to hand over their phones for this purpose.
Answered by: Michael Matheson 17 May 2018
The police have a range of powers that allow them to seize a device and examine it for evidence, both within legislation and under common law. The powers used will depend upon the circumstances of the individual case. For example, if a person is searched under section 23 of the Misuse of Drugs Act 1971 then section 23(2)(c) would allow an officer to seize and detain a mobile phone found during the course of that search if it appeared to be potential evidence of an offence under the Act. Under common law, when the police lawfully seize an item in this way that carries with it the right to interrogate that item for evidence as required.
The police do not have the power to compel a witness to provide their phone to be examined for evidence. If the police suspected that a witness had relevant evidence on their phone, and the person did not choose to provide their phone voluntarily, the police would need to obtain a warrant from the Crown Office and Procurator Fiscal Service.