Failure to comply with a digital evidence access order is an offence under section 76AO of the Law Enforcement (Powers and Responsibilities) Act 2002 which carries a maximum penalty of 5 years in prison.
To establish the offence, the prosecution must prove beyond reasonable doubt that:
A ‘specified person’ is a person to whom a digital evidence access order applies.
A digital evidence access order empowers an officer to whom it is granted to direct a specified person to give the officer any information or assistance that is reasonable and necessary to:
1. Enable the officer to access data held in or accessible from a computer specified in, or within the scope of, the order, or
2. Allow the officer to:
(i) copy data from a computer specified in, or within the scope of, the order to another computer, or
(ii) convert the data into a documentary form or another form intelligible to a computer used by the officer.
The order allows the officer to require the specified person to provide reasonable and necessary assistance in accessing data on a computer that is secured by biometric means, including fingerprints or retina scans.
The information accessed by way of the order may only be for the purpose of the order, and no other purpose.
A ‘reasonable excuse’ for not complying with a digital evidence access order does not include the fact that complying would tend to incriminate you or otherwise expose you to a penalty.
You are not guilty of the offence of failing to comply with a digital evidence access order if you establish, on the balance of probabilities, that you had a reasonable excuse for your conduct.
General legal defences to the offence include duress, necessity and self-defence.
If you are able to raise evidence of a general legal defence, the onus then shifts to the prosecution to prove beyond a reasonable doubt that the defence does not apply to the circumstances of the case.
You are entitled to an acquittal if the prosecution is unable to do this.