Tracing a suspect via contact with solicitor

07 October 2020

Not reviewed after the date of publication

Question: 

Enquiries to trace a suspect for burglary have produced no results, however the solicitor states he has been in contact with the suspect.

Can the police conduct a phone analysis on the solicitor's phone to obtain the mobile number of the suspect or is this not possible due to legal privilege?

Answer:

It is our opinion that the telephone number would not be subject to legal privilege as defined by section 10 of PACE. However, as the purpose of obtaining the telephone number is to trace the suspect for the burglary, and not for evidential purposes, we believe that the options available are limited.

It is our opinion that a Data Protection request could be submitted to the solicitor requesting disclosure of the suspect's telephone number, in accordance with paragraph 2 of Schedule 2 to the Data Protection Act 2018, which provides:

'2(1) The listed GDPR provisions and Article 34(1) and (4) of the GDPR (communication of personal data breach to the data subject) do not apply to personal data processed for any of the following purposes -

(a) the prevention or detection of crime,
(b) the apprehension or prosecution of offenders, or
(c) the assessment or collection of a tax or duty or an imposition of a similar nature,

to the extent that the application of those provisions would be likely to prejudice any of the matters mentioned in paragraphs (a) to (c).'

The request places no compulsion on the recipient to disclose the information, but should provide them with an assurance that if they do comply with the request that a disclosure for the required purposes would be appropriate and in compliance with the legislation. We believe that each police force will have a process (standard form to be used) and policy in place for making a request to an external organisation for disclosure of information/personal data and we would advise this is checked before any action is taken.

Additionally, it may be advisable to liaise with your force Data Protection Unit who will be able to offer specific, specialist advice on this area.

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