Crown Office and Procurator Fiscal Service

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Crown Office, 25 Chambers Street, Edinburgh, EH1 1LA

ACC Steve Johnson
Specialist Crime & Intelligence
Police Scotland
Gartcosh

Tel:
RNID Typetalk prefix: 18001
DX: 540310 Edinburgh 38
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By email:

LRM/GE

30 January 2019

Dear ACC Johnson
Police Scotland Digital Device Triage System (Cyber Kiosks)
Thank you for your letter of 12 October 2018 addressed to
for guidance on two points;

which asked

(1) What is the legal framework and considered common law view to allow Police
Scotland to take, seize and examine a digital device?
(2) In relation to identified legal framework what considerations should be given to
the ECHR?”
In terms of the Data Protection and Human Rights implications of processing
information whilst seizing and investigating digital devices that is a matter on which
Police Scotland as a public authority must satisfy themselves. The Crown Office and
Procurator Fiscal Service (COPFS) involvement relates to the admissibility in Court of
evidence secured in that manner.
I am aware that Police Scotland has sought advice from its own Legal Services on the
legal basis of the proposed facility and the powers available in terms of search and
seizure.
As the powers being discussed are Police powers it is appropriate that where Counsel’s
opinion is being sought it is facilitated through Police Scotland’s Legal Services. I am
aware that Counsel’s opinion has been sought on legal issues relating to Police powers
in the recent past, including in relation to the implementation of the Criminal Justice
(Scotland) Act 2016.
There seems to be a misunderstanding expressed in evidence given to the Justice Sub
Committee on policing that your letter has been passed to Crown Counsel for
consideration. The letter has not been passed to Crown Counsel for consideration as it
is not appropriate for COPFS to do that in relation to a request for broad guidance on
Police powers.

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www.copfs.gov.uk

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 -2I would highlight the following points in relation to the questions that you have raised
in your letter of 12 October 2018;
There are legal provisions which set out where authority is required for the Police to
overcome the physical security either of an individual or their property in order to
secure evidence which is admissible. There are also legal principles which allow the
Police to overcome the physical security of an individual or their property without
recourse to those legal provisions, again to secure evidence which is admissible. It
should be noted that the legal provisions and principles apply irrespective of the
technique deployed to secure the information.
The legal provisions and principles which allow Police Officers to seize an item can
broadly be categorised as follows;
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where an individual has been arrested (under sections 47 and 49 of the Criminal
Justice (Scotland) Act 2016 and JL and EI v HMA (2014 SCCR 253)),
where there is a statutory power of search of an individual or their property
without the need for a search warrant (for example section 23 of the Misuse of
Drugs Act 1971),
where a search warrant has been granted either under legislative powers or the
common law,
where the owner has given consent,
where there is a common law power or
where there is urgency.

The extent of any examination of an item will be dictated by the power or authorisation
under which the police officer is acting;
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Where an individual has been arrested the extent of the examination of any item
seized will depend on the nature of the item itself and of the information sought
(as per JL and EI v HMA (above)).
In the case of an article being seized with consent, the examination should be
consistent with the consent given.
Where seizure has been authorised by statutory power of search or a search
warrant then the courts would expect police officers to use such powers as have
been specified within the terms of the statute or the warrant.
Where acting under common law powers or in a situation of urgency, a court
would expect the examination of such an item to be proportionate and necessary
in the particular circumstances.

Where evidence is recovered from a digital device which has been seized by the Police
and that evidence is revealed to COPFS, Prosecutors will assess whether the evidence
is admissible. Where the evidence has been recovered as a result of actions for which
there was legal authority then the evidence will be admissible, subject to any other
legal rules which might apply to that evidence.
Where the information has been taken outside the terms of, or in the absence of, legal
authority then the evidence will not necessarily be inadmissible. In that instance the
fairness of the approach taken by the Police will be considered in assessing whether the
evidence will be admissible. Each case will be determined on its facts and
circumstances.

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www.copfs.gov.uk

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 -3The terms of the European Convention on Human Rights is a consideration which
underpins any decision made by COPFS or by the Court in establishing whether
evidence which is to be led in Court is admissible. To this end it should always be a
consideration when establishing what approach to take to the seizure of evidence.
I hope this information is of assistance to you.
Yours sincerely

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www.copfs.gov.uk

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