New Year Digital Clear-Out: Why Deleting Images or Messages During an Investigation is a Crime

When Deleting Digital Material May Become a Criminal Offence

Deleting or concealing evidence can amount to perverting the course of justice, a common law offence in England and Wales. The prosecution must establish that a person carried out an act which had a tendency to interfere with the course of justice and was intended to do so.

The offence does not require the interference to succeed. Someone may still face prosecution where their actions were intended to frustrate an investigation, even if police had already obtained copies of the deleted material.

However, not every deletion during an investigation meets this test. The prosecution must establish the necessary act and intention, rather than relying on the timing of deletion alone.

The course of justice can exist before criminal proceedings begin. It may arise where an incident has occurred from which a police investigation can reasonably be expected, or where an investigation is already underway.

This means that deleting relevant conversations after learning that a complaint may be made to police can raise concerns, even if officers have not yet contacted you.

Intent is the central question

The reason for deleting material is central to whether an offence has been committed.

Prosecutors must establish that the person intended to interfere with the course of justice. It is not enough simply to show that messages or images were deleted while an investigation was ongoing.

For example, someone who routinely clears storage space without knowing that their material may be relevant to an investigation is in a different position from someone who deliberately removes messages to prevent police from examining them.

Timing, knowledge and the surrounding circumstances may all help establish what the person intended.

Does the device need to have been seized first?

No. Police do not have to seize a phone, computer or other device before deleting evidence can become a criminal offence.

The same applies where no formal request for records has been made.

If an investigation is underway or the course of justice has otherwise begun, deliberately deleting relevant material to prevent it from being examined may amount to perverting the course of justice.

The absence of police contact does not necessarily protect someone from prosecution. What matters is whether the legal requirements for the offence can be proved.

Routine Deletion and Deliberate Evidence Destruction

There is an important difference between clearing unwanted digital material as part of ordinary housekeeping and deliberately destroying evidence.

At the beginning of a new year, many people delete old photographs, remove unused files or clear message histories to free up storage space.

These activities are not generally criminal simply because they involve deleting information.

The legal position becomes more serious where the material may be relevant to an investigation and the deletion is intended to prevent investigators from obtaining or examining it.

Three factors are particularly important: when the deletion occurred, what the person knew and why the material was removed.

For example, deleting old photographs during a routine phone clear-out is different from removing a particular conversation after learning that someone involved has reported an incident to police.

In the second situation, investigators may examine whether the deletion was intended to conceal evidence.

However, awareness of an investigation does not automatically make every subsequent deletion a criminal offence. The prosecution must still establish an act that tended and was intended to interfere with justice.

The circumstances may also affect sentencing if the conduct leads to a conviction.

Messages, Images, Cloud Accounts and Backups

Digital evidence can take many forms. Text messages, WhatsApp conversations, photographs, videos, emails and social media records may all be relevant to a police investigation.

The same applies to information stored in cloud accounts or device backups. The location of the material does not, by itself, determine whether deleting it may constitute an offence.

For example, removing messages from a cloud backup to prevent police from recovering them can raise the same legal concerns as deleting them directly from a phone. 

Closing an account or deliberately removing stored records may also be relevant where those actions are intended to interfere with an investigation.

However, deleting a file from one location does not necessarily mean it has disappeared completely. Copies may remain on another device, in a backup or with a service provider.

The availability of another copy may affect the evidence, but it does not automatically rule out the offence where a deliberate attempt to interfere with justice is established.

Additional care is needed where the device contains material that may itself be unlawful, such as indecent images of children.

In these circumstances, opening, copying, forwarding or attempting to recover the material independently may create separate legal risks. Specific advice should be obtained before handling it.

Disappearing Messages and Automatic Deletion

Many messaging applications include disappearing-message features that automatically remove conversations after a chosen period.

These settings may have been activated months before any police investigation was contemplated. Where messages disappear under an existing setting, the legal position may differ from someone deliberately selecting and deleting material to conceal evidence.

Perverting the course of justice requires a positive act. Simply failing to intervene in an automatic process does not, by itself, necessarily establish that offence.

However, actively changing a deletion setting to remove relevant messages, shortening an existing timer or otherwise manipulating the process to conceal evidence may raise serious concerns.

The timing of those changes and the person’s intention would be important.

If you become aware that an investigation may involve conversations stored on your device, preserving potentially relevant material should be the priority.

Where lawful and safe to do so, pause or disable settings that could cause further deletion. If the process is unclear, or the material may itself be unlawful, seek specific legal advice before making changes.

Tell your solicitor about any existing automatic deletion settings, including when they were activated and whether they have since been changed.

What to Do if Material Has Already Been Deleted

If you have already deleted messages, images or other files and are concerned that they may be relevant to an investigation, obtain legal advice before taking further action.

Deleting material does not automatically establish that a criminal offence has occurred. The circumstances of the deletion, including what you knew and intended at the time, will need to be considered.

Avoid making further changes to the device or relevant accounts. Attempting to reconstruct conversations, alter records or create replacement messages could introduce additional evidential concerns.

You should also avoid discussing the deletion with other people in a way that could affect their evidence or accounts of events.

If the material may itself be unlawful, do not attempt to retrieve, copy or circulate it independently.

A criminal defence solicitor can examine the circumstances and advise whether forensic recovery, disclosure or another step is appropriate.

Material that has been deleted may sometimes remain recoverable through digital forensic examination or existing backups.

In certain cases, voluntarily correcting the position or disclosing relevant information may be taken into account. However, the implications depend on the circumstances, so the decision should be made with legal advice.

Communications made confidentially with a solicitor for the purpose of obtaining legal advice will generally be protected by legal professional privilege.

Preserving Evidence Without Creating Further Legal Risks

If you know that a police investigation is underway or reasonably expect one to begin, preserving potentially relevant digital material is the safest general approach.

This includes messages, photographs, emails, financial records and information stored in cloud accounts.

Avoid deleting, resetting or wiping devices that may contain relevant evidence. You should also take care not to overwrite, alter or transfer records in a way that could affect their integrity.

Where automatic deletion settings are active, consider how further loss of material can be prevented safely and lawfully. If you are uncertain about the technical steps, ask your solicitor before changing the device or account settings.

It is also important not to share potentially relevant material unnecessarily with other people. Forwarding messages or copying files may create additional issues, particularly where the content is confidential, sensitive or potentially unlawful.

If police have issued a formal request or obtained legal authority to seize or examine a device, your solicitor can explain the scope of that authority and any obligations that apply.

Preserving evidence does not necessarily mean volunteering every document or device to investigators without first understanding your legal position.

A solicitor can advise how material should be retained, examined and disclosed where appropriate.

Where potentially unlawful images are involved, obtain specific advice rather than attempting independent recovery or handling.

Penalties and Sentencing for Interfering With Evidence

Perverting the course of justice is a serious common law offence carrying a maximum sentence of life imprisonment.

However, this is the statutory maximum available for the offence, not the sentence normally imposed whenever digital evidence is deleted.

The actual sentence depends on the seriousness of the conduct, its effect on the investigation and the circumstances of the case.

The Sentencing Council has published a specific guideline for perverting the course of justice. Courts consider both culpability and harm when deciding the appropriate sentence.

Relevant factors may include how deliberate or planned the interference was, whether it continued over time and the seriousness of the investigation or proceedings affected.

The court may also consider whether evidence was actually lost, whether an investigation was delayed and whether the conduct placed others at risk of wrongful suspicion or prosecution.

Under the guideline, the offence range extends from a community order to seven years’ custody, although the legal maximum remains life imprisonment.

Perverting the course of justice is tried in the Crown Court.

Other offences or legal consequences may arise depending on what happened. For example, failure to comply with a court order to preserve or produce material may raise issues of contempt of court.

Providing false information, fabricating replacement messages or attempting to influence witnesses may also create separate legal difficulties.

The applicable charges and likely consequences depend on the evidence and the conduct alleged.

The Role of a Criminal Defence Solicitor

A criminal defence solicitor can examine the circumstances surrounding the deletion of digital material and explain whether the available evidence may support an allegation of perverting the course of justice.

This includes reviewing when the material was deleted, whether an investigation was underway or reasonably anticipated, and what evidence exists about the person’s intention.

A solicitor can also advise on how to preserve remaining material, respond to requests for devices or records, and deal with information that has already been removed.

Where forensic recovery may be relevant, they can consider whether specialist assistance is appropriate.

If you are invited to a police interview, legal advice can help you understand the allegation and the issues likely to be raised.

Confidential communications made for the purpose of obtaining legal advice are generally protected by legal professional privilege. This allows clients to discuss past events openly, although the protection does not extend to communications made to further a criminal purpose.

Giving your solicitor an accurate account of what happened, including any deletion of material, will help them assess the available options.

Speak to a Criminal Defence Solicitor

If you are concerned about deleting messages, photographs or other digital material during a police investigation, a criminal defence solicitor can explain how the law may apply to your circumstances.

Our criminal defence team can advise on evidence preservation, police requests and the potential consequences of material that has already been deleted.