Police Scotland has sought to allay concerns ahead of the rollout of new cyber-kiosks which harvest mobile phone data.
It follows the introduction of digital consent forms in England and Wales which ask victims of crime – including rape victims – to submit their mobiles to police so that officers can search for evidence. If victims refuse, then prosecutions may not go ahead.
Amid concern from MSPs, Police Scotland has currently paused the introduction of cyber-kiosks, laptop-sized machines which allow officers to bypass encryption to read data such as text messages, e-mails and browsing histories from the phones of suspects, victims and witnesses.
The force has secured independent legal advice from Murdo MacLeod QC who has confirmed there is a “lawful basis” for the introduction of the technology.
However, Mr MacLeod said there was “no apparent basis” for the seizure and examination of electronic devices from complainers or witnesses other than by consent or warrant.
In an update to the Scottish Police Authority, Police Scotland said: “We are aware of recent media reporting regarding English police forces’ engagement with victims of sexual crime and, in particular, obtaining access to digital devices.
“Unfortunate language has been used in many media reports referencing ‘digital stop search’ and ‘digital strip search’. To be clear, there is no change in policy for Police Scotland.
“Triage of digital devices or indeed more detailed forensic examinations have and will only ever be undertaken in Police Scotland when there is a legal basis for the seizure and examination of that device, or where consent has been recorded.”
MSPs have previously accused Police Scotland of trialling the cyber-kiosks without undertaking the required governance, scrutiny and impact assessments.
The national force accessed hundreds of phones and SIM cards during a pilot in Edinburgh and Stirling between 2016 and 2018.
Assistant Chief Constable Steve Johnson said: “Digital devices can store important evidence for all types of crime and Police Scotland has a duty to pursue relevant lines of enquiry.
“Where examination of a device belonging to a witness or victim is identified as a proportionate, necessary and relevant line of enquiry, informed consent is sought and recorded in officer notebooks or witness statements.
“Should a witness or victim decline to give consent, this may impact on the ability of officers to gather all the relevant evidence.
“In all cases we will continue to complete a thorough investigation and, where criminality can be established, this will be reported to the Crown Office and Procurator Fiscal Service.”