This post, which originally appeared as an article in Police Professional examines the implications for police forces of the Police (Property) Act 1897, civil claims for damages, potential pitfalls and practical steps that can be taken to reduce the risk of claims.
Police forces seize and retain huge quantities of property each year. Real problems can arise when property is retained for longer than necessary. The rise in value of electronic items and computers seized makes this a significant area of financial risk – a fact that many forces have not yet fully grasped.
The statutory machinery for seeking the permanent detention of assets under the Proceeds of Crime Act 2002 or the Powers of Criminal Courts (Sentencing) Act 2000 is normally the domain of a force’s financial investigators and it is not addressed in this article.
The importance of property rights
The starting point is to recognise the importance the law attaches to the protection of an individual’s property. This comes as no surprise – the protection of property is a fundamental principle of policing too.
The power to retain property is set out in section 22 of the Police and Criminal Evidence Act 1984 (PACE). Where property has been seized under sections 19 and 20, section 22(1) provides a general power to retain property only for “as long as necessary in all the circumstances”.
Section 22(2) expressly provides that anything seized for the purposes of criminal investigation may be retained for use at a trial for an offence or for forensic examination. However:
- if a photograph or copy could be made then the property cannot be retained; and
- if the original must be retained rather than merely a copy, there is still a duty under section 21 to return a copy of, or allow access to, the item to the person who was in possession of it when it was seized.
Police (Property) Act 1897
The Police (Property) Act 1897 (“PPA”) serves three purposes. First, it is a cost-effective and practical way in which the police can dispose of property which is no longer required, especially where it may be controversial to return to the person who had possession of the property when seized. Secondly, it gives the public a route by which they can seek the return of property. Lastly, it allows for disposal of unclaimed property, provided the Police (Property) Regulations 1997 are followed.
Section 1 provides:
“Where any property has come into the possession of the police in connection with their investigation of a suspected offence a court of summary jurisdiction may, on application, either by an officer of police or by a claimant of the property make an order for the delivery of the property to the person appearing to the magistrate or court to be the owner thereof, or if the owner, cannot be ascertained, make such order with respect to the property as to the magistrate or court may seem meet.”
After six months from the making of such an order, the rights of any other person to that property are extinguished. This provides finality for the police.
Demanding the return of property – civil claims
The alternative route is for a person to bring civil proceedings in the county court or the High Court for return of their goods. The time limit for bringing this type of action is six years. A claimant can demand both the return of his goods and financial compensation for the time that he has been deprived of them or for damage to the goods themselves.
Property can only be retained for a legitimate purpose
Once property has been seized, retention is lawful only if it is necessary for a legitimate purpose. Normally that will be the purpose for which it was originally seized under sections 19 or 20 of PACE.
The case of Scopelight Ltd v Chief Constable of Northumbria [2009] EWCA Civ 1156 considers other reasons that might be held to be a legitimate purpose.
Northumbria Police seized internet server equipment and documents from Scopelight, a small-scale website operator. Following a criminal investigation into potential offences, including conspiracy to defraud, the Crown Prosecution Service (CPS) decided not to prosecute. The organisation FACT (Federation Against Copyright Theft), which had made the initial complaint leading to the seizure of material, then commenced a private prosecution. Scopelight demanded the return of its property but Northumbria Police refused on the basis that it was needed by FACT for the private prosecution.
The High Court ruled in favour of Scopelight, holding that the police could not lawfully retain the material in order to facilitate a private prosecution by somebody else. However, the Court of Appeal disagreed, allowing a wider interpretation of section 22. Lord Justice Leveson said at paragraph [53]:
“the phrase “anything which has been seized by a constable… may be retained so long as is necessary in all the circumstances” requires the police to consider each case on its own individual facts, at each stage in the process of investigation and prosecution.”
He pointed out that the police were under an obligation to keep under review what property was being retained, regardless of whether it was the CPS or a private body prosecuting the case.
In the Scopelight case, the factors to be considered under section 22 would include: 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 have a legitimate interest in the criminal prosecution of this conduct; the police view of the significance of what has been retained; and any material fact concerning the proposed defendant. All this falls to be considered so that a balanced decision can be reached upon whether retention is necessary “in all the circumstances”.
The significance for police forces is that in every case where property is to be retained, that decision needs to be capable of withstanding subsequent scrutiny. The amount of consideration required, and the level of detail in the recording of the reasons, will depend on the sensitivity and complexity of the case and the value of the property being retained. In practice, it makes sense to maintain a written audit trail of what is being retained and why, particularly for high value property, or items used by a business.
A legitimate purpose includes the prevention of crime
The same issue arose in the Divisional Court in 2012 in Chief Constable of Merseyside Police v Owens [2012] EWHC 1515 (Admin) . Merseyside Police was investigating an arson attack on a private dwelling. It seized CCTV footage from a third party who was a member of the BNP. Police could make out a person on the CCTV but were unable to identify him. Mr Owens, the owner of the CCTV, asked for the return of his footage, stating that he thought he could identify the perpetrator and would then take his own action against them. Fearing that Mr Owens would take the law into his own hands and commit an offence, the police refused to return the CCTV footage. Mr Owens made an application to the magistrates’ court under section 1 of the PPA. The magistrate asked the Divisional Court for guidance.
The Divisional Court, following Scopelight, held that section 22 was not wide enough to permit the police to retain the CCTV for a different purpose than it had originally been seized – the prevention of a further crime. However, it ruled that both on an application under the 1897 Act and in a civil action the court could refuse to make an order returning property “if on the facts it could be established that the return of property would indirectly encourage or assist a person in his criminal act”.
When should the police use the Police (Property) Act 1897?
The PPA remains the ‘go to’ route for the police in straightforward cases, where you have property which you want to dispose of or return and it is important to have the protection of a court order. If the procedure is followed then the police will not be liable to a civil action for damages for conversion.
Nevertheless, the PPA is intended only for straightforward claims. In Gough v West Midlands Police [2004] EWCA Civ 206, the Court of Appeal considered whether the police had to return vehicle parts which they suspected were stolen. Park J said at paragraph [19]:
“…in practice the regular use of the 1897 Act is for the straightforward and simple cases… [it is] obvious that the police must use the Act frequently to deal with matters where they find themselves in possession of items of property which they do not want to keep but do not know whether they can legitimately destroy them or what else they can do with them…”
He then went on to say that the PPA should not be used to resolve definitively ownership rights in complicated or disputed cases. However, in Gough no one else was claiming the parts and it was ordered that they should therefore be returned.
What to do in a complicated case
Where there is a dispute over ownership the easiest (and cheapest) course remains to initiate proceedings in the magistrates’ court under the PPA. There is no point going to the expense and delay of a civil action if it is not actually required. If entitlement to property is then disputed by more than one party in the magistrates’ court, the correct course would be for that court to decline jurisdiction and for the parties to resolve the issue in the county or High Court.
In county/High Court proceedings a request must be made for the court to add as a party to the case anyone else with a claim to the goods. The goal in any case of potential dispute is to obtain the protection of a court order before returning or destroying property.
Time is money: civil actions are expensive
If lawfully seized property is subsequently retained for an unnecessary length of time the damages can be high, particularly where the property was needed for someone’s livelihood or business. Legal costs can more than double the total financial impact of the case.
In 2008, Mr Cash, an Irish horse breeder, was awarded £80,000 damages in the High Court against Lancashire Police: [2008] EWHC 396 (Ch). The police had seized Mr Cash’s horse, Romeo, from land near Blackpool. The court accepted that at the time Romeo was seized the police reasonably believed that he was stolen. Shortly afterwards, Mr Cash provided Lancashire Police with evidence that he owned Romeo and that he had brought him to England to breed. The police took four months to return the horse. The court found that in that four-month period they had made no further inquiries, apart from occasionally consulting the lists of missing horses on the internet.
The Court held that the police had been entitled to a short period – seven days – in which to establish the true ownership of Romeo but that after that time they should have returned the horse to Mr Cash. The award of £80,000 reflected the lost sales of foals which would have been sired by Romeo during the period of detention.
How to avoid trouble
While many police forces have policies for the retention and return of property these are not always followed in practice. Alarm bells should ring, and extra care taken, where:
- high value property is retained;
- property is retained where its ownership is likely to be in dispute;
- property is retained which is needed by a person or organisation to do their job; and
- ‘fragile’ or perishable property is retained.
There is understandably often greater attention paid to seizing property in the first place than to returning it. As the case of Romeo the stud horse shows, it is important to prioritise the return of property as quickly as practicable.
If there are unavoidable delays in returning property, make sure that the reasons are well documented. It is important to be able to demonstrate good faith and reasonableness if property is retained for a prolonged period.
Property is not always stored with sufficient care. Watch out for large items stored outside or in a damp warehouse.
Counterfeit goods
Look out for how counterfeit property is used. There are cases where individual officers have been found guilty of misconduct – even dismissed – for helping themselves to counterfeit designer clothing that has been confiscated by trading standards. In the same forces, the use of such clothing by officers on undercover operations has sometimes been officially sanctioned. This betrays a misunderstanding of the law. The use of counterfeit clothing on ‘official business’ without the consent of the trademark holder is just as much an interference with the property rights of the trademark owner as private use of the same goods.
Computers
Keep in mind the requirement of section 22 of PACE that property should not be retained if it is possible to make a copy. This is particularly relevant to digital equipment such as computer hard drives.
A problem with computer hardware is that it becomes rapidly obsolete. If the police hold onto a computer for two years, they may face a bill for the whole cost of the computer and software, as it is no longer of any real use to its owner. Small businesses may claim substantial losses if their hardware or data is not returned.
Often the hard drive is the only part of the computer of interest to an investigation. There is the potential to return the rest of the computer equipment, either with a blank hard drive, or a copy of the drive seized. If the person from whom the computer was seized asks the police to do this, then under section 21 of PACE there is likely to be an obligation to supply a copy of the hard drive, along with the rest of the hardware. Given the duty to return this equipment, the police should routinely consider whether to adopt the approach below, even if the person has not asked for the equipment.
- Provided the CPS is in agreement, and there are no major concerns as to the use to which the data will be put, a suggested process would be:
- make at least two ‘mirrors’ of the computer’s hard drive;
- remove the original drive (if not already removed), and replace it with one of the mirrors;
- retain the original drive to preserve continuity and use the second mirror as the working copy for interrogation, etc; and
- return the computer with the first of the ‘mirrored’ hard drives – thus allowing the suspect/organisation to have access to their own data.
Summary
Property can be a minefield for the inattentive. Otherwise conscientious officers have found themselves facing disciplinary action because they did not attach sufficient priority to the subject’s right to the return of his property.
A good starting point is to follow the basic principle that all property belongs to someone and should not be kept longer than reasonably necessary. Attention must be paid to force policies and the importance of obtaining authorisation from the court before doing anything controversial. And be very careful with horses.
This post first appeared as an article in Police Professional and is reproduced here by kind permission of the Editor.