The scenario is a familiar one:
“Can I have my phone back Officer? Or “…can I have my laptop back officer.” Too often the answer is “no” or you are simply ignored. Is there anything you can do?
The short answer is “maybe, it depends on the nature of the property taken and sometimes where the police investigation is at. Well you say that really does not seem to be very helpful – well not necessarily, there is just not a “one size fits all” answer to the problem. Let me explain1:
David Hislop QC
An extensive career has allowed him to achieve expertise in a number of areas from murder and terrorism to the fine arts of fraud, cross border crime, money laundering and regulatory work.
His stellar 2019 with three consecutive acquittals for murder: R v Jason Needham (Oxford CC); R v Nyeila (Central Criminal Court); R v Daniel Fox (No.3) (Maidstone CC) has continued in to 2020 with his recent successful application to dismiss a charge of murder: R v Yusuf Yusuf (Central Criminal Court) and a Not Guilty Verdict in just over an hour by the Jury in a one punch manslaughter case in R v Mohammed Metowlli.
Known to have a particular expertise in the area of pathology and DNA. Popular with clients, he is known for his industry and ability to scythe through vast mountains of paperwork drilling down to the real issues in a case. His reputation is a persuasive jury advocate with “…a preparedness to defend the indefensible and win…”. He is regularly ranked in the Legal 500 and Chambers and Partners.
"A superb tactician who fights to the end"
Crime, Legal 500 - 2020
Code B7:14 and 7.15 provides as follows:
Subject to paragraph 7.15, anything seized in accordance with the above provisions may be retained only for as long as is necessary. It may be retained, among other purposes:
- for use as evidence at a trial for an offence;
- o facilitate the use in any investigation or proceedings of anything to which it is inextricably
linked [see Note 7H];
- for forensic examination or other investigation in connection with an offence;
- in order to establish its lawful owner when there are reasonable grounds for believing it has been stolen or obtained by the commission of an offence.
Property shall not be retained under paragraph 7.14(i), (ii) or (iii) if a copy or image would be sufficient.”
The power to retain in section 22(1) ‘… so long as is necessary in the circumstances” is not limited to police purposes and requires a consideration of an individual’s human rights under Article 8 and his property rights under the First Protocol: Chief Constable of Wiltshire Constabulary v Ann Mcdonagh  EWHC 654:
“ 19. I do not disagree with the observation of Park J that the “circumstances” contemplated by section 22(1) are likely to be “circumstances … associated with the law enforcement functions of the police”. For my part, however, I see no reason to confine the relevant circumstances exclusively to those relating to police functions. In the case of the seizure of a caravan, alleged to be the home of a woman due to give birth to a child in 16 days, the effect of the seizure on the applicant is capable of constituting a relevant “circumstance” within the meaning of section 22(1) which authorises the retention of the caravan “in all the circumstances”.
Where for instance the continued retention of one’s property is interfering in some way in your life, for instance if you used your computer and the software / material for your small business and were unable to replace the same and thus could not carry on your work or work as a student perhaps, the continued retention beyond what is reasonably necessary and a continued failure to “image” and return (see Section 22 (4)) is unlawful and pursuant to section 1 The Police (Property) Act 1897 (“PPA) the Court would inevitably order the return of the goods with costs awarded against the Police.
The same may apply to your telephone. If it is possible for the police to take a forensic image of the contents of your telephone they have to do so and then return your telephone unless there is a very good reason for not doing so.
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- This article presumes the search warrant, if a warrant was necessary, was lawful and the subsequent seizure was lawful. Different principles apply where the lawfulness of the search and or seizure is challenged. For a detailed discussion of sections 15 and 16 of PACE and the lawfulness of the seizure see: Westminster College of Computing Ltd, Arasaratnam Arasilango  EWCA Civ 561.
- Offences under the Computer Misuse Act 1990.
- 2019 WL 00982124 – Westminster Magistrates Court DJ Coleman 19 February 2019.