Scopelight Ltd and others v Chief Constable of Northumbria Police Force and another; [2009] EWCA Civ 1156; [2009] WLR (D) 317

POLICE — Powers — Retention of seized property — Police investigating criminal proceedings and seizing and retaining property — Whether entitled to retain seized property where Crown Prosecution Service deciding not to prosecute but private prosecution being considered or taking place — Police and Criminal Evidence Act 1984, s 22(1)(2)(a)(i)(ii)

Scopelight Ltd and others v Chief Constable of Northumbria Police Force and another

[2009] EWCA Civ 1156; [2009] WLR (D) 317

CA: Ward, Wilson, Leveson LJJ: 5 November 2009

Section 22 of the Police and Criminal Evidence Act 1984 did not preclude the police from retaining property seized where the Crown Prosecution Service had notified the parties of its decision not to prosecute but a private prosecution was being considered or taking place.

The Court of Appeal so stated when allowing the appeals of the defendants, the Chief Constable of Northumbria Police Force and the Federation against Copyright Theft (“FACT”), from a decision on a preliminary issue made by Sharp J on 7 May 2009 ([2009] 2 Cr App R 365) at the commencement of civil proceedings in which the claimants, Scopelight Ltd, Anton Vickerman and Kelly-Ann Vickerman, sought the interim delivery up of property seized by the police in the investigation of contemplated criminal proceedings. The judge ruled that, pursuant to s 22 of the Police and Criminal Evidence Act 1984, the police, in the absence of continuing independent justification for retention, were not entitled to retain property seized under the 1984 Act against the wishes of the persons otherwise entitled to possession of the property once a decision not to prosecute had been taken by the Crown Prosecution Service so that a private body could consider whether to bring a prosecution or whilst that private prosecution was being brought.

S 22 of the 1984 Act provides, inter alia: “(1) Subject to subsection (4) below, anything which has been seized by a constable or taken away by a constable following a requirement made by virtue of section 19 or 20 above may be retained so long as is necessary in all the circumstances. (2) Without prejudice to the generality of subsection (1) above — (a) anything seized for the purposes of a criminal investigation may be retained … (i) for use as evidence at a trial for an offence; or (ii) for forensic examination or for investigation in connection with an offence … ”

LEVESON LJ said that s 22 of the 1984 Act did not preclude the police from retaining seized property where the Crown Prosecution Service had notified the parties of its decision not to prosecute those from whom the property had been seized but a private prosecuting agency had made it clear to the police that advice would be sought on a private prosecution which had since been mounted. The police then had power to determine whether it was necessary in all the circumstances that the property seized should be retained for forensic examination, or for investigation in connection with an offence, or for use as evidence at a trial for an offence. Such a decision was for the police; and the approach to the phrase “anything which has been seized by a constable … may be retained so long as is necessary in all the circumstances” required the police to consider each case on its own individual facts, at each stage in the process of investigation and prosecution. If the CPS was prosecuting the case, whatever was required for forensic investigation or the prosecution would obviously be retained but, even then, consideration would have to be given to ensuring that no more than was necessary for the case (either to pursue it or to rebut a potential defence) was kept. If a prosecution was not to be pursued by the CPS but some other public or private body wished to pursue a private prosecution, the relevant circumstances included, but were not limited to: the identity and motive of the potential prosecutor; the gravity of the allegation along with the reasoning behind the negative decision of the CPS and thus the extent to which, in this case, the public had a legitimate interest in the criminal prosecution of this conduct; the police view of the significance of what had been retained; and any material fact concerning the proposed defendant. All this fell to be considered so that a balanced decision could be reached upon whether retention was necessary “in all the circumstances”; and such a decision would be capable of challenge on traditional public law grounds.

WILSON and WARD LJJ agreed.

Appearances: Richard Spearman QC, Tom Weisselberg and David Groome (instructed by Northumbria Police Legal Department and Wiggin LLP) for the defendants; Iain Purvis QC and Hugo Cuddigan (instructed by Lewis Nedas & Co) for the claimants; Aftab Jafferjee QC (instructed by Blake Lapthorn, Eastleigh) for the RSPCA, intervening by written submissions.

Reported by: Matthew Brotherton, barrister