Police prosecutor acquitted of grossly negligent professional misconduct

During the investigation of a DUI case, a police prosecutor decided to examine forensic bakcup files from the suspect’s mobile phone – mirror copies of its contents. The phone had been found by a private individual and handed over to the police as a voluntary seizure.

The Supreme Court considered whether this examination constituted a search requiring a court order under section 197 subsection 1 of the Criminal Procedure Act. It also assessed whether the lack of authority to order such a search amounted to grossly negligent professional misconduct under sections 171–172 of the Penal Code.

The Supreme Court found that examining the backup files constituted a search, which the police prosecutor lacked authority to order without a court order. However, after an overall assessment, the Supreme Court concluded that the misconduct was not grossly negligent. 

While authorising a search without proper authority is generally a serious error, the unusual circumstances of the case made it unclear that a court order was required. Furthermore, the lack of authority did not result in a search without legal basis.

The judgment provides guidance on interpreting the Penal Code provisions on professional misconduct. 

Read the judgment from the Supreme Court (Norwegian only) (PDF)

Area of law: Criminal law. Sections 171 and 172 of the Penal Code. Sections 197 and 192 of the Criminal Procedure Act. 

Key paragraphs: 58 and 59

Justices: Noer, Bull, Arntzen, Steinsvik, Vang