Can I get my property back?

By Medico
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Can I Get My Property Back?

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By David Hislop QC
28 July 2020

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:

The Police (Property) Act 1897 (“PPA”), 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.”

Seized Pursuant to a Warrant:

Retention by the police of goods seized in pursuance of a warrant issued under section 8 of the Police and Criminal Evidence Act 1984 (“PACE”) is subject to section 22(1) of PACE, which provides that in part that anything that has been seized by a constable may be retained “so long as is necessary in all the circumstances”: Chief Constable of Wiltshire Constabulary v McDonagh [2008] EWHC 654 (QB).

Seized Where there is No Warrant:

Under section 18(2) a constable may seize and retain anything for which he may search under section 18(1). If you as a property owner for instance have been arrested for an indictable offence no search warrant was required before entry into your home and the police were entitled to seize anything that may assist them in the investigation of your suspected offence.

Again retention by the police of goods seized pursuant section 18(2) of the Police and Criminal Evidence Act 1984 (“PACE”) is subject to section 22(1) of PACE, which provides that in part that anything that has been seized by a constable may be retained “so long as is necessary in all the circumstances”:

Lord Denning MR who, in Ghani v Jones, [1970] 1 QB 693 at 709 said:
“The police must not keep the article, nor prevent its removal, for any longer than is reasonably necessary to complete their investigations or preserve it for evidence”.

“…or preserve it for evidence”

This part of the dicta from Ghani v Jones (supra) becomes particularly important in the modern age of “easy” forensic imaging.

The starting point is to recognise the importance the law attaches to the protection of an individual’s property. 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”. The Court in Scopelight Limited & Ors v Chief of Police for Northumbria (2009) EWHC 958 at paragraph 20 said:

“The right of any person to enjoy his property free from interference by the state is a fundamental right, subject to some limited exceptions, one of which is the power of the police to seize and retain property pursuant to the powers given to them under various sections of PACE. Part II of PACE provides a detailed scheme for the exercise of such powers, which override (but only temporarily) the property rights of the lawful owner. As Lightman J said in Costello v Chief Constable of Derbyshire Constabulary [2001] 1 WLR 1437 at [11] sections 19 and 22 of PACE vest in the police “no title to the property seized, but only a temporary right to retain property for the specified statutory purposes.”

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. Code 7A guidance provides that application may be made to the Magistrates Court for return of retained property under the Police (Property) Act 1897.

Pursuant to section 22(4) Police and Criminal Evidence act 1984: Nothing may be retained for either of the purposes mentioned in subsection 22(2)(a) if a photograph or copy would be sufficient for that purpose.

hislop_david_headshot

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:

“B:7.14

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:

  1. for use as evidence at a trial for an offence;
  2. o facilitate the use in any investigation or proceedings of anything to which it is inextricably
    linked [see Note 7H];
  3. for forensic examination or other investigation in connection with an offence;
  4. 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.

B:7.15
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 [2008] 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.

“But not one size fits all”

The above provides an answer to where the property seized is undeniably that of the person from whom it was seized. What about where the allegation was a “computer hacking” offence2 and there is an application made by the owner of the computer for it return pursuant to Section 1 Police Property Act.

Here the hardware, that is the computer itself may be the property of the applicant and returnable, (subject to it being able to be separated from the data contained thereon) however the data contained thereon ie the hacked material may not be the property of the Applicant and thus would not be returnable. The rationale of this was discussed in the case of Love v The National Crime Agency3. In this case the allegation was that Love had hacked a number of US sites. The USA unsuccessfully tried to extradite him. The NCA were still investigating Love for Computer Misuse offences, some of the material they had been able to copy from his computer other data they could not because of the work of various encryption tools. Work in that regard was still ongoing. The court found that they could find no legitimate purpose for the applicant being in possession of this data and it would clearly not be in the public interest for him to have any of it. Indeed, they believed Mr. Love was a risk of the commission of further offences if he were to regain possession of this data. The information would be of considerable use to those engaged in organised crime.

The court found that the NCA needed to retain the items of computer equipment for its continuing criminal investigation and for any subsequent trial. It further accepted the assertion by the officers of the NCA that copies or images would not suffice for the purposes of a trial. The court found that continued retention of the items was permitted under section 22 of PACE.

The court was referred to the "public interest" defence and the relevance of Article 1 of Protocol 1 to the European Convention on Human Rights.

Article 1 states that every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

However, as the court said the word " except " demonstrates that this is not an absolute right. The court said it assumed those individuals from whom personal information appears to have been taken, would also wish not to be deprived of their possessions, in this case their private and personal information/data. Accordingly, the court found that neither any of the computing items nor the data contained on any or all of them, should be returned to the applicant. It said the computers and the data could not be separated. The applicant was unwilling to assist in that regard, that is provide encryption codes and thus was satisfied that the NCA had power to
retain.

Thus, the above hopefully vindicates my view that when asking can I get my property back, the answer is maybe.

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  1. 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 [2020] EWCA Civ 561.
  1. Offences under the Computer Misuse Act 1990.
  2. 2019 WL 00982124 – Westminster Magistrates Court DJ Coleman 19 February 2019.