Sealed and delivered: what should you do with potentially incriminating evidence?
Q. I act for a client who is subject to a police investigation in connection with a serious criminal offence. Yesterday the client came into the office and left an envelope for me with the receptionist which turned out to be a mobile phone with a message asking me to retain it for safekeeping.
I have no doubt that the phone contains evidence which would be relevant to the police investigation. I have so far had no success in contacting my client to discuss the matter further. What should I do?
A. Although you have a duty to act in your client’s best interests, you cannot accept instructions which would put you in breach of the law or the rules of conduct (see rule 1.01 and rule 2.01(1)(a) of the Solicitors’ Code of Conduct 2007).
As a general rule, if you know or suspect that the item you are being asked to hold incriminates the client, you should refuse to accept it. In this case the client has already left the item with you. If you are satisfied that the phone would be valuable evidence to the prosecution, you should arrange for the item to be delivered to the police. You do not need your client’s consent to do this. However, you should not give the police any information about how the item came to be in your possession, which remains confidential.
You will need to tell the client and discuss with the client whether you can continue to act.
