Extraction of Information from Electronic Devices: Draft Code of Practice 2022

This response addresses JUSTICE’s concerns with the Home Office’s draft Code of Practice issued pursuant to the Police, Crime, Sentencing and Courts Act 2022, through its corresponding consultation. Section 37 of the Act allows authorised persons, chiefly police officers, to extract information stored on an electronic device if the device user has voluntarily provided it and agreed to the extraction. An extraction may only take place to prevent, detect, investigate or prosecute crime; help locate a missing person; or protect a child or an at-risk adult from neglect or physical, mental or emotional harm.

This response draws on JUSTICE’s previous work on the Act, which it opposed in its entirety. JUSTICE considers several of the Act’s key components both to threaten the UK’s adherence to its domestic and international human rights obligations, and to lack an evidential basis for their introduction. Moreover, we draw on evidence collated pursuant to our Working Party report, Prosecuting Sexual Offences (2019).

Extracting information from electronic devices has the potential to be a serious violation of privacy. Victims of sexual violence have reported that the process of having information extracted from the device, which usually takes weeks or months, as traumatising. It is no surprise the prospect of having information extracted from their devices has been cited by victims of sexual offences as a reason for being unwilling to proceed with police investigations.

JUSTICE’s recommendations for the Draft Code include:

  • making clear, in line with the Data Protection Act 2018, that extraction should only take place if, and to the degree, it is “strictly” necessary and proportionate.
  • ensuring that devices are usually be returned as soon as possible, with clarity as to the timeframe.
  • greater protections for those who cannot provide written agreement to extraction, so all users are making an informed choice to the extraction of information.
  • allowing device users to be present during the extraction unless that would be impracticable or inappropriate.
  • guaranteeing an independent review procedure for extraction requests to ensure authorised persons are accountable.

In sum, the Draft Code must ensure that extractions of information from electronic devices are always strictly necessary, proportionate, and expeditious, and take place in line with the user’s informed choice. This is essential for building victims’ confidence in the criminal justice system, thereby improving the prosecution process, not least for sexual offences.

For all JUSTICE’s briefings on the Police, Crime, Sentencing and Courts Act 2022 during its passage through Parliament, see here.

For JUSTICE’s response to the consultation see here.