Writing in response to John Finnie, convener of the Justice Sub-Committee on Policing, Justice Secretary Humza Yousaf implied that the use of cyber kiosks was legal under current law. 

“It is of course open to anyone who believes that a particular course of conduct is not lawful to challenge it in the courts. I am not aware of any such challenge; and the Sub-Committee will have noted the opinion given by Murdo Macleod QC and published correspondence from the Crown Office and Procurator Fiscal Service,” he wrote.

In a statement, the Scottish Human Rights Commission said: “We are disappointed with the Scottish government’s response to the Justice Sub-Committee’s recommendations, which echo our own, around strengthening the legal framework in this area.

“The commission remains of the view that there is a lack of clear legal basis for the use of cyber kiosks by Police Scotland. We note the legal opinion provided to Police Scotland.”

It added: “However, we also note that the opinion makes clear that there is very limited case law available in this area. The case law that does exist stresses the need for clear procedural safeguards to be in place to avoid the arbitrary use of power, or overuse of discretion by the police. We are concerned that the specific case authority cited in the opinion enables wide discretion by the police when conducting a search of a mobile phone, without establishing clear parameters and safeguards.

“In our view, relying on this as a legal basis for proceeding to use cyber kiosks does not address the need for clear, sufficient and robust safeguards, including appropriate oversight. People’s rights to privacy will therefore remain vulnerable to being violated until the legal framework is strengthened.”