England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		07/05/2009

Mrs Justice Sharp:

1. This is the trial of a preliminary issue in a claim brought by the Claimants for the return of their property lawfully seized from them by the police pursuant to their powers under the Police and Criminal Evidence Act 1984 ("PACE"). The issue before the court concerns (broadly) the power of the police to retain property under section 22 of PACE once a decision has been made by the Crown Prosecution Service ("the CPS") not to bring charges against the owner of the property from whom it has been seized, whilst a private body considers bringing or brings a private prosecution.

Factual Background

2. The Second and Third Claimants, Mr Anton Vickerman and Mrs Kelly-Anne Vickerman are husband and wife. They own and control the First Claimant, a company called Scopelight, which was incorporated on 14 February 2007. Since October 2007 Scopelight has run a website called "SurfTheChannel.com" ("STC"). STC is a video search engine website consisting of thousands of links to third party websites which host videos covering a wide range of categories. It is said on behalf of the Claimants that the user does not use any software on STC to access any material. Once a user clicks on a link, the user leaves STC and is taken to the host site. Scopelight's revenue is apparently derived from advertising on the site. It is common ground that STC is not a "torrent" or file sharing site. The Second Defendant, the Federation against Copyright Theft ("FACT") is a private commercial organisation, which represents the interests of the audio-visual industry. It was formed as a trade body to counter copyright piracy in various forms, particularly in relation to films and DVDs. It is not in dispute that it performs important work to protect the commercial interests of members of FACT in this respect; or that its work is of substantial assistance to the police, amongst others.
3. The Chief Constable of Northumbria Police is the First Defendant. In July 2008, following a complaint made by FACT to the Northumbria Police ("the Police") the Police took action against the Claimants. On 28 July 2008 an information was laid by PC Taylor of Gateshead and Quays police before Gateshead Magistrates in support of an application to search Mr and Mrs Vickerman's home for "Internet server equipment and praphernalia [sic] associated with this" on the ground that extensive investigation by FACT had revealed that Mr Vickerman was "…hosting two internet torrent sites from which copyright material is downloaded. The sites are hosted on servers at his home address…". This included a request for authorisation for "representatives from FACT" to accompany the Police.
4. On 16 August 2008 the Police applied under section 8 of PACE for a warrant to enter and search Mr and Mrs Vickerman's home on the basis that there were reasonable grounds for believing that indictable offences had been committed. The offences specified were conspiracy to defraud and money laundering. The grounds were stated as follows:

"Substantial enquiries have been made by the Federation Against Copyright Theft into two internet companies who are defrauding the film industry and obtaining substantial profit from the distribution of films, movies not yet within the public domain. The subjects of this application are identified as running these companies from the identified premises"

5. The application also stated that persons to be authorised to accompany the officers executing the warrant would be "...technicians from FACT …financial investigators and local authority staff from Bedford local Authority".
6. On 18 August 2008 the Police went to the home of Mr and Mrs Vickerman which was at that time Gateshead. The Police were accompanied by Mr Reay and Mr Kempster, FACT investigators. They were also accompanied by a Mr Clelland, an employee of a specialist computer forensic examination company, 7Safe Ltd ("7Safe"). 7Safe had entered into a contract with FACT on 31 July 2008 to examine and capture data on site. The precise role played by 7Safe, and whether or not 7Safe were entitled to be present during the search is a matter of controversy between the parties. It is said by the Claimants (but disputed by the Defendants) that all of the information on Mr Vickerman's computer was copied to Mr Clelland's USB hard drive at the house at the time of the raid. Though it is not relevant for present purposes, it is said on behalf of the Claimants that by this route, the Defendants had complete information on the design, structure, operation and customer base of the website. At some point during the search, Mr and Mrs Vickerman were arrested and taken to Gateshead police station where they were questioned. Personnel from FACT took part in the interviews. They were then released on unconditional bail. Thereafter, with some difficulty it is said, Mr Vickerman managed to get STC up and running again, and its website currently remains in operation.
7. During the search of the house 31 items of the Claimants' property ("the Property") were seized by the Police as part of the investigation. The items seized (or most of them) are listed on a draft Northumbria Police Property Disposal/Receipt form annexed to the Particulars of Claim in this action. Included in the Property were information-holding items such as computer towers, servers, and memory sticks, and also monitors, cables, a keyboard, a mouse, mobile phones and financial paperwork.
8. It is said by the Defendants that on the 19 August 2008 Mr Reay of FACT attended at Gateshead police station and inspected some of the financial documents that had been seized and removed some; that on the 29 August 2008 some of the Property was released by the Police into the possession of FACT and transported to their premises for the purposes of the Police investigation; and that between September and December 2008 forensic examination of the property was undertaken by FACT and 7Safe in FACT's offices and at 7Safe's offices, again, as part of the Police investigation.
9. On 27 August 2008 Mr Vickerman wrote to FACT asking for the return of the Property. On 1 September 2008 Mr Colin Tansley, FACT's Director of Internet and Intelligence, replied, refusing to return it.
10. There is some controversy surrounding subsequent events, but it is clear that on or about 12 December 2008 the CPS decided not to bring a prosecution against the Claimants. On 12 December 2008 DC Watkin of the Police, and the officer with day-to-day management of the investigation into the Claimants, contacted Mr Brett, the solicitor then acting for Mr and Mrs Vickerman (and now acting for all three Claimants) and informed him of the decision of the CPS. It is not in dispute that DC Watkin told Mr Brett that the Property could be returned.
11. It is common ground that as at 12 December part of the Property was at FACT's storage premises, part was at 7Safe's premises in Sawston, Cambs, and a box of financial documents was still with the Police. As I understand it, all of the Property is now in the physical possession of FACT.
12. At some point after it was informed of the decision by the CPS not to bring a prosecution (and the exact date of which may be a matter of controversy), FACT decided to bring a private criminal prosecution. On 16 December 2008, Mr Brett wrote to DC Watkin making arrangements for the return of the Property. On 18 December DC Watkin told Mr Brett that the Property was in the possession of FACT, and that FACT was not going to return it because it was considering whether to bring a private prosecution. On 19 January 2009 solicitors then acting for FACT wrote to Scopelight's then solicitor, refusing to return the Property and said it was "…being lawfully retained because it is suspected of having been used or was used in connection with the operation of the aforementioned website".
13. On 22 January 2009, the Claimants began these proceedings, claiming delivery up of the Property and damages for conversion. They also issued an Application Notice seeking the interim delivery up of the Property. On 23 January 2009 FACT wrote to the Police confirming their decision to bring a private prosecution. On 28 January 2009 the Claimants applied before me on a without notice application, for an interim order for delivery up, or in the alternative an order that pending delivery up FACT should not examine or deal with the property. I granted the latter order. The hearing was attended by Mr Tom Weisselberg who appeared on behalf of the Second Defendant. The First Defendant was aware of the application, but was content for the matter to proceed in his absence. I also made an order for a speedy trial on the application of Mr Weisselberg which was not opposed by Mr Donald McCue, who appeared on behalf the Claimants. At that hearing, I was shown a letter from FACT which appeared to indicate that a decision had been made to bring a private prosecution against the Claimants but there had not yet been a decision about the charges which would be brought.
14. On the 6 February 2009 the Particulars of Claim were served. On 12 February 2009 FACT began a private prosecution of Mr and Mrs Vickerman which is still proceeding. The charges include offences under S107(2A) of the Copyright Designs and Patents Act 1988 (communicating a work to the public in the course of a business knowing that by doing so he is infringing copyright in that work), conspiracy to defraud and money laundering contrary to section 327 of the Proceeds of Crime Act 2002 . On 17 March 2009, at a hearing at Gateshead Magistrates Court the relevant summonses were transferred to the Crown Court pursuant to section 51 of the Crime and Disorder Act 1998.

The pleaded issues

15. In the Particulars of Claim, the Claimants claim damages for conversion. A number of issues are raised in the pleadings in respect of that claim, but for present purposes the Claimants' principal claim is that the Police's entitlement to retain the Property by section 22 of PACE came to an end, except for the purposes of returning the Property, when the CPS decided not to charge the Second and Third Claimant. In the premises it is said, the Defendants' retainer of the Property after 12 December 2008 was wrongful, and amounted to a conversion of it. The Defendants defend that aspect of the claim against them on the ground that the police's retention of the Property is lawful under section 22(2)(a)(i) and (ii) of PACE because it is being retained for use as evidence at a trial and/or forensic investigation for an offence (namely that being prosecuted by FACT).
16. I should mention two additional matters raised by the Claimants on the pleadings. First, there is a pleaded claim that the Police were not entitled to part with possession of the Property to FACT at any stage. Mr McCue made it clear in argument however that this claim is not now being pursued. Second, there is a claim that the Police were not entitled to give or pass to FACT information obtained from items seized in the search, or copies taken of what was seized. That claim is defended on two bases: first, it is said that such a claim cannot be made by way of a claim for conversion, which is the only cause of action relied on, since information is not property which can be converted. Second, and in any event, it is said that the Police's conduct was lawful in this respect by virtue of Part 9 of the Enterprise Act 2002. These are not matters which I have been invited to address in relation to the preliminary issue which I have been invited to determine by the Defendants and to which I turn next.

The preliminary issue: the contentions of the parties in summary

17. On the first day of what would have been the trial, Mr Richard Spearman QC appearing for both Defendants, submitted that the fundamental issue now raised in these proceeding is whether the police are entitled to retain property that they have lawfully seized in circumstances where a prosecution is being contemplated or brought by someone other than the CPS or by some other public body. He said this is a question which can be answered shortly as a matter of statutory construction, without the need for witness evidence, and would probably be determinative of the action as a whole. In contrast, if all the matters in issue were to be tried now, the action would take 3-4 days to try. Accordingly he invited me to determine the matter as a preliminary issue.
18. Mr McCue agreed that the essential issues between the parties are quite narrow in compass. He was unable to identify any issue of fact relevant to the first two of what he submitted were five relevant questions for the Court to determine. Those two issues were (i) after 12 December 2008, were the Police entitled by section 22 of PACE to retain the Property because of the possibility that FACT would bring a private prosecution; and (ii) if the Police were not so entitled, did any further entitlement accrue to the Police by reason of the decision of FACT to bring a private prosecution or commence a private prosecution? In the course of argument, he sought to add a further and new issue namely (iii) whether the Police had actually retained the Property at all after the 12 December 2008, or whether it had in reality been handed over 'lock stock and barrel' to FACT? As Mr Spearman pointed out however, not only was this issue not pleaded, it was a departure from the Claimants' case as currently formulated, which rested on the premise that the Police had retained legal possession, and this retention was wrongful. Such an afterthought had to be treated with caution so it seemed to me, particularly where it was raised to meet the submission that it was convenient for the preliminary issue to be dealt with first, and there were no issues of fact which required to be dealt with. The point had not even been foreshadowed in the Claimants' skeleton argument. Moreover, even if the new point were to be added by way of late amendment, the preliminary issue would still need to be resolved (since the Defendants accepted that the Property was in the hands of FACT, but claimed to be entitled to deal with the Property in that way pursuant to their powers of retention under PACE). In those circumstances, in my view it was convenient and proportionate for the preliminary issue to be determined first and I acceded to Mr Spearman's application.
19. The question was framed in two slightly different ways by the parties, but they were agreed the differences were not material: the central issue as I have already indicated, is whether the Police were entitled under section 22 of PACE to retain the Property once the CPS had decided not to prosecute the Claimants, for the purpose (broadly) of assisting a private prosecution of the Claimants by FACT. In some cases, whether there is a right to retain will turn on a question of fact. In this case however, the question for the court is whether the purpose for which the Property is now being retained, as a matter of construction, falls within a purpose permitted by statute. Such a question might be determined by way of judicial review, but (as Mr Spearman accepted) it may arise in a case such as this where a private law action is brought for conversion and the police have to justify their continued retention of property as against the person claiming a superior right to possession.

The powers of seizure and retention of property under PACE

20. 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."
21. In Webb v Chief Constable of Merseyside Police [2000] QB 427 the police refused to return property they suspected of being the proceeds of drug trafficking to the person from whom it had been seized on public policy grounds said to operate as part of the common law. It was accepted by the police that they had no statutory right of retention, but the Court held there was no public policy justification for them doing so either. In Gough v The Chief Constable of the West Midlands Police [2004] EWCA Civ 206 Mr Justice Park (with whom Lord Justice Potter agreed) summarised the correct approach to be adopted when a private law claim for conversion was brought against the police in circumstances where property had been seized under PACE at [15]:

"first … if the police are holding property which they have seized from some other person who was previously in possession of it, they can only resist a civil claim by the former possessor for its return if they can identify a statutory power to retain it; second, … if the original seizure was authorised by a statutory power, it does not necessarily follow that indefinite retention of the property continues to be authorised by the statutory power; third, … a civil claim by the former possessor brought under the Torts (Interference with Goods) Act 1977, is determined by common law principles deriving from the law of detinue and conversion; fourth, … if the police do not have a continuing statutory right to retain the property, the former possessor's right of possession is superior to theirs…"

22. There is no dispute that the Claimants are the owners of the Property. It is therefore necessary for the Police to identify a continuing statutory power to retain it. Otherwise, on ordinary common law principles deriving from the law of detinue and conversion, the Claimants' right of possession is superior to that of the Police, and the Property must be returned (it is to be noted that though this the general rule, there are exceptions, which do not apply here: for example, property may be retained pending an application to the magistrates court under the Police (Property) Act 1897 for a court to determine to whom property should be returned (see per Park J in Gough at [15] and [35])).
23. By section 8(1) of PACE, if on the application of the police a magistrate is satisfied that there are reasonable grounds for believing that an indictable offence has been committed, and that there is material on premises which is likely to be of substantial value to the investigation of the offence, and that it is likely to be relevant evidence, and that it does not include items subject to legal privilege, and that any of the subsection (3) conditions are satisfied (one of which is that entry will not be granted without a warrant), then the magistrate may grant a warrant authorising the police to enter and search. By section 8(2) the police may seize and retain anything for which a search has been authorised under section 8(1).
24. Section 19 gives a constable lawfully on any premises three potential powers of seizure:

i) By section 19(2) he may seize anything if he has reasonable grounds for believing that it has been "obtained in consequence of the commission of an offence" and that it is necessary to seize it in order to prevent it being concealed, lost, damaged, altered or destroyed (e.g. illegal drugs);

ii) By section 19(3) he may seize anything if he has reasonable grounds for believing that it is "…evidence in relation to an offence he is investigating or any other offence" , and that it is necessary to seize it (for the same reasons as in section 19(2));

iii) By section 19(4) he may require "any information which is stored in electronic form and is accessible from the premises to be "produced in form" in which it can be taken away and which it is visible and legible or from which it can readily be produced in a visible and legible form" if he has reasonable grounds for believing that it is evidence in relation to an offence as per section 19(3) or has been obtained in consequence of the commission of an offence as per section 19(2).

25. The material parts of section 22 of PACE are as follows:

"(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, except as provided by subsection (4) below-

(i) for use as evidence at a trial for an offence; or

(ii) for forensic examination or for investigation in connection with an offence; and

(b) anything may be retained in order to establish its lawful owner, where there are reasonable grounds for believing that it has been obtained in consequence of the commission of an offence.

(4) Nothing may be retained for either of the purposes mentioned in subsection (2)(a) above if a photograph or copy would be sufficient for that purpose.

…

(7) The reference in subsection (1) to anything seized by a constable includes anything seized by a person authorised under section 16(2) to accompany a constable executing a warrant."

26. I respectfully agree with the observations of Plender J in Chief Constable of Wiltshire Constabulary v Ann McDonagh [2008] EWHC 654 (QB) at [21] that the requirement of necessity imposed by section 22(1) of PACE, applies whether the property is seized pursuant to sections 8, 19 or 20 of PACE; and the Defendants do not seek to argue otherwise.
27. Mr Spearman's principal submission is as follows. The Police, he says, lawfully seized the property for the purposes of a criminal investigation (into the Claimants). It is now being retained for use as evidence at a trial for an offence (that being prosecuted by FACT) or for forensic examination in connection with it, and it matters not whether the prosecution is being undertaken by the CPS or FACT. The retention he says falls squarely within the wording of section 22 (2). In any event, he submits private prosecutions are in the public interest, and therefore even if one has to have regard to the purpose for which the powers of retention are given to the police, their function includes assisting in the prosecution of criminals and therefore, giving assistance to private prosecutions in the public interest.
28. Mr McCue's submissions approach the matter from a completely different starting point. He submits that the starting point must be the purpose for which the powers to seize and retain property were given to the police under PACE. It is plain he says on the authorities (and indeed, having regard to some well-established rights of property and constraints on the powers of the state) that section 22 only confers the draconian powers of seizure, use and retention of private property for limited purposes connected with the exercise of the public purposes directly connected to the functions of the police, or other emanations of the state and not for private purposes. He does not cavil with the suggestion that private prosecutions are or may be of value: but they are the private action of private individuals and bodies. It is therefore no part of the police's public functions to assist in private prosecutions; and property cannot be retained by them for that purpose alone. On a proper construction of section 22 therefore, the Police's right of retention ended in this case when the CPS decided not to prosecute the Claimants, as the stated purpose for which it was being kept, namely to assist FACT in the private prosecution was outside the Police's public functions. At that point, the Claimants had a superior possessory right to the property, and it should have been returned to them.

The purposes for which the police powers under Part II of PACE are conferred

29. The purposes for which the police powers of seizure, use, and retention PACE are conferred, and for which they can be used have been considered in a number of cases.
30. In Marcel and ors v Commissioner of Police of the Metropolis and anor [1992] Ch 225 the issue was whether it was lawful for the police to hand over to a private individual either voluntarily or as a result of a subpoena duces tecum, documents lawfully seized under PACE and retained for the purposes of a criminal investigation by the police. The purpose for which the documents were said to be required by the private individual was for his civil claim for fraud against the owners of the documents. The Court of Appeal determined that it was unlawful for the police to hand the documents over voluntarily, but lawful for them to do so pursuant to a subpoena. One of the matters considered by the Court of Appeal was the purpose for which the powers to seize and retain property were conferred on the police under PACE. It was submitted on behalf of the Commissioner in Marcel that the police could use seized documents for any reasonable purpose, for public purposes in the public interest, or for police purposes which were to be construed widely, and that any of these formulations should be held to include giving assistance to the victims of crime.
31. None of their Lordships accepted those broad formulations of the purpose for which property seized under PACE could be used or retained by the police. At pages 255F to 256E Lord Justice Dillon said this:

"The Vice Chancellor regarded section 22 of the Act as dealing with the duration and the purpose of retention, and he said that the Act contained no express provision regulating the purposes for which documents once seized can lawfully be used`; see ante p. 234 B-C. He expressed his conclusion as to the purpose for which seized documents can be used in two passages with which I would in general respectfully agree:

"However, there manifestly must be some limitation on the purposes for which seized documents can be used. Search and seizure under statutory powers constitute fundamental infringements of the individual's immunity from interference by the state with his property and privacy – fundamental human rights. Where there is a public interest which requires some impairment of those rights, Parliament legislates to permit such impairment. But in the absence of clear words, in my judgment Parliament cannot be assumed to have legislated so as to interfere with the basic rights of the individual to a greater extent than is necessary to secure the protection of that public interest. In the case of this Act, it is plainly necessary to trench upon the individual's right to his property and privacy for the purpose of permitting the police to investigate and prosecute crime; hence the powers conferred by Part II of the Act. But in my judgment Parliament should not be taken to have authorised use of seized documents for any purpose the police think fit. For example, could the police provide copies of seized documents to the Press save in cases where publicity is necessary for the pursuit of their criminal investigations?...

In my judgment, subject to any express statutory provision in other Acts, the police are authorised to seize, retain and use documents only for public purposes related to the investigation and prosecution of crime and the return of stolen property to the true owner. Those investigations and prosecutions will normally be by the police themselves and involve no communication of documents or information to others. However, if communication to others is necessary for the purpose of the police investigation and prosecution, it is authorised. It may also be, though I do not decide, that there are other public authorities to which documents can properly be disclosed, for example to City and other regulatory authorities or to the security services. But in my judgment the powers to seize and retain are conferred for the better performance of public functions by public bodies and cannot be used to make information available to private individuals for their private purposes."

But I agree with these views solely in relation to the voluntary use by the police of documents seized under the Act of 1984 which are the property of other persons. "

32. Lord Justice Nolan expressed his views on the scope of police powers under PACE at 261H to 262C:

"The responsibilities which are by law and custom entrusted to the police are wide and varied. The powers conferred upon them must be considered against the background of those responsibilities. If the hands of the police were too strictly tied with regard to the use of documents and information acquired under compulsory powers, then the public interest would suffer. In this connection I agree with Dillon L.J. there can be no impropriety in the present practice of the police in the areas which he has listed in his judgment [at 257E-H].

The statutory powers given to the police are plainly coupled with a public law duty. The precise extent of the duty is, I think, difficult to define in general terms beyond saying that the powers must be exercised only in the public interest and with due regard to the rights of individuals. In the context of seizure and retention of documents, I would hold that the public law duty is combined with a private law duty of confidentiality towards the owner of the documents…"

33. Sir Christopher Slade said this at 262D to 263E:

"In my judgment, documents seized by a public authority from a private citizen in exercise of a statutory power can properly be used only for those purposes for which the relevant legislation contemplated that they might be used. The user for any other purpose of documents seized in exercise of the draconian power of this nature, without the consent of the person from whom they were seized, would be an improper exercise of the power…As a starting point, therefore, it is necessary to consider the purposes for which Parliament contemplated that documents seized under the powers conferred by Part II of the Act of 1984 might properly be used by the police. In my judgment, those purposes must be co-terminous with the purposes for which it envisaged that such documents might properly be retained by the police. The Vice Chancellor, ante, p.234B, stated that "Section 22 is dealing with the duration not the purpose of retention." I do not, for my part, read the scope of section 22 as being so limited as this. Not only does section 22(2) specify certain stated purposes for which anything seized for the purposes of a criminal investigation may be retained, but the subsection is prefaced by the words "Without prejudice to the generality of subsection (1) above." These prefacing words presuppose that subsection (1) has itself specified albeit in general terms, the purposes for which documents seized by virtue of virtue of section 19 or 20 may be retained. Accordingly, it seems to me, they presuppose that the phrase in subsection (1), "so long as is necessary in all the circumstances," has specified in general terms not only the duration but also the purpose for which retention of seized documents may continue."

What then is the meaning of the phrase in section 22(1), "so long as is necessary in all the circumstances?" In my judgment, in its context, this phrase can only mean: so long as is necessary for carrying out the purposes for which the powers given by sections 19 and 20 have been conferred. I shall not attempt a comprehensive statement of those purposes. They clearly include inter alia the primary purposes of investigating and prosecuting crime and the return to the true owner of property believed to have been obtained in consequences of the commission of an offence. Further, the relevant sections would, I think, authorise acts which were reasonably incidental to the pursuit of those primary purposes, thus including in appropriate circumstances the disclosure to third parties of seized documents. In my judgment, however, the Vice Chancellor's broad description of those primary purposes as "police purposes" (see ante 234G) was a correct one. I cannot accept [counsel's] broad submissions that the powers of retention conferred on the police by section 22, and thus their powers of user of documents seized under Part II of the Act can properly be exercised for any purposes which involve the assistance of the victims of suspected crime in civil proceedings. Such a construction of section 22 would go beyond my reading of the police purposes for which the powers given by sections 19 and 20 were conferred by the legislature. However laudable such a purpose may be thought to be, I do not think that the assistance of victims of suspected crime to pursue a claim for damages in civil litigation (as opposed to a claim for recovery of property obtained in consequence of the commission of an offence – as to which see sections 19(2)(a) and 22(2)(b)), is a purpose for which either the retention or the use of documents seized under sections 19 and 20 is envisaged by the Act of 1984."

34. As Waller LJ commented in Preston Borough Council v. McGrath C.A. 12 May 2000 (unreported) there was not unanimity in Marcel as to whether section 22 dealt with the purpose or duration of retention; but this did not matter, because by one route or the other, the court accepted there were constraints on the police powers; and there was no dissent from the broad propositions of the Vice-Chancellor, quoted with approval by Dillon LJ at 255G-D.

35. In Gough the facts, briefly, were that no charges were brought against the claimants from whom the police had seized certain property (car parts). The police returned some of the car parts to the claimants, but did not return those they suspected to have been stolen. When the police were asked to return the car parts they had retained, they indicated an intention to make an application under the Police (Property) Act 1897 for the ownership of the car parts to be determined. However, the police did not proceed with that application once the claimants' civil action against them for delivery up was begun. The Court of Appeal held the police's continued retention of the property was wrongful. Mr Justice Park said this at [35]:

"I accept that the words of s22(1) are quite general…The statute does not explicitly identify what sorts of circumstances it has in mind. In my view it is likely to have in mind circumstances which are associated with the law enforcement functions of the police. In the present case it was certainly for one of the law enforcement purposes set out in s19 of PACE that the goods were seized, and in my view the assumption behind s.22 was that that would always be the case. I would accept that, as a criminal investigation progresses, new 'circumstances' may emerge, and further reasons why the goods were seized in the first place. But I suggest that the circumstances and the necessities which s.22(1) contemplates are ones of a law enforcement nature, arising from the police force's function and role in society. I cannot believe that the conditions of the subsection are met where the only circumstance relied upon is that the police, who have no further law enforcement purpose for retaining the property, are not prepared to concede without litigation the previous possessor's claim to have the goods returned to him."

Discussion

33. The factual scenario that has to be considered is broadly this. 'X' police force use their powers under PACE to seize private property in connection with a criminal investigation into an offence. They suspect the property seized is evidence of a crime. A decision is made (either by the police or the CPS after due consideration) not to prosecute. The owner of the property asks for his property back. A private body or individual asks the police to retain the property however, for their assistance: so the private body or individual can have it forensically examined, or so they can conduct their own investigations or so they can conduct a private prosecution, using the property as evidence. Are the police entitled in accordance with the powers given to them under PACE to retain the property, even though they themselves no longer have a specific use for it and but for the intervention of the private body or individual would have returned it? In my judgment, the answer is no. It is apparent from the cases cited above, that generally, the courts have construed the powers of the police under PACE to seize, use and retain property as being conferred on them for the better performance of their public functions; and for the law enforcement purposes set out in sections 8, 19 and 20 of PACE. Those include inter alia the primary purposes of the investigation and prosecution of crime by the police or other prosecuting authority and the return to the true owner of property believed to have been obtained in consequences of the commission of an offence; and also acts reasonably incidental to the pursuit of those primary purposes (as explained in Gough). It does not seem to me however that public law enforcement purposes in this context include the seizure, use or retention by the police of private property to assist private interests. Nor do I think that it was within the contemplation of the legislature that private property, once seized by the police, could be used by a private body for its own purposes (including considering whether it should bring a private prosecution or bringing a private prosecution). In my view therefore the voluntary retention or use for these purposes does not fall within the statutory purposes for which the police are entitled to retain property as against the person otherwise entitled to possession. It is true that in general terms the police have a duty to prevent crime, and to ensure that offenders are brought to justice. But as Lord Parker C.J. observed in R v Waterfield [1964] 1 Q.B. 164 at 171: " [W]hilst it is no doubt right to say in general terms that police constables have a duty to prevent crime, and a duty when crime is committed to bring the offender to justice, it is also clear from the decided cases that when the execution of those general duties involves interference with the person or property of a private person, the powers of constables are not unlimited."
34. On its face, section 22(2) of PACE specifies certain stated purposes for which anything seized for the purposes of a criminal investigation may be retained, which includes for use as evidence at a trial for an offence; or for forensic examination or for investigation in connection with an offence. In my judgment however, those words must be read subject to the purposes for which the legislation contemplated that the police's powers of retention might be used. I respectfully agree with Sir Christopher Slade that the use of the words "Without prejudice to the generality of subsection (1) above" in section 22(2) presuppose that subsection (1) has itself albeit in general terms, stated the purposes for which documents seized by virtue of section 19 or 20 may be retained. Those words also make it clear, so it seems to me that the stated purposes in section 22(2) do not modify the general provision in section 22(1). The stated purposes in section 22(2) are therefore examples of, and not exceptions to the purposes for which retention is permitted generally under PACE or specifically by section 22(1).
35. The police therefore cannot retain property seized under PACE for the purpose of assisting a private prosecution (whether for use as evidence at a private prosecution, or to enable the property to be forensically examined by a private body or individual or to be used in connection with an investigation by a private body or individual) anymore than they can seize it for that purpose. As the Vice-Chancellor observed in Marcel in the passage cited above, and approved by the majority in the Court of Appeal: "In the case of this Act, it is plainly necessary to trench upon the individual's right to his property and privacy for the purpose of permitting the police to investigate and prosecute crime." (emphasis added). The permitted use may extend (though the Vice-Chancellor did not decide the point) to disclosure to public authorities, but the powers under PACE are not conferred in my view, nor can they be used for the private purposes of private individuals or bodies, however laudable or reasonable from a public point of view, those purposes might be.
36. Mr Spearman submits that on the construction contended for by the Defendants, a potential claimant could always challenge the factual basis for retention (was retention really necessary on the facts in other words). But that is no answer so it seems to me to the question which is raised in this case.
37. Mr Spearman also submits that private prosecutions play an important part in upholding a wide spectrum of the criminal law (from shoplifting to intellectual property crime to occasional grave offences), and he says that as a matter of public policy, a result precluding retention in cases such as this one, should only be reached in the event that there are clear and express words which leave no choice but to find that this was the intention of Parliament. He also submits such a result is inimical to important rights of access to the courts that arise at common law and under Article 6 of the ECHR and that encompass the right to bring private prosecutions.
38. Considerations of public policy however, even if relevant, do not lead me to a different conclusion.
39. The right of individuals or private bodies to bring private prosecutions is well-established, and is preserved by section 6 of the Prosecution of Offenders Act 1985 (which also recognises the DPP's power to take over private prosecutions). It is part of the common law right of access to the courts, which has been described as a constitutional right. Its continuing value and its prevalence has however been the subject of some judicial disagreement. In Jones v Whalley [2007] 1 AC 63 Lord Mance said this at [38] :

"Prosecutions brought without police or Crown Prosecution Service involvement are not uncommon. They may be initiated by private bodies such as high street stores, by charities such as the NSPCC and RSPCA, or by private individuals as in the present case."

40. He went on to say at [43]:

"the right of private prosecution operates and has been explained at the highest level as a safeguard against wrongful refusal or failure by the prosecuting authorities to institute proceedings…"

44. Lord Bingham however at [9] said as follows:

"There are however respected commentators who are of the opinion that with the establishment of an independent, professional prosecuting service, with consent required to prosecute in some more serious classes of case, with the prosecution of some cases reserved to the director, and with power in the Director to take over and discontinue private prosecutions, the surviving right is of one of little or even no value…[Counsel] is entitled to insist that the right of private prosecution continues to exist in England and Wales, and may have a continuing role. But it is hard to regard it as an important constitutional safeguard when as I understand, private prosecutions are all but unknown in Scotland."

45. He went on to say at [16]

"A crime is an offence against the good order of the state. It is for the state by its appropriate agencies to investigate alleged crimes and decide whether offenders should be prosecuted. In times past, with no public prosecution service and ill-organised means of enforcing the law, the prosecution of offenders necessarily depended on the involvement of private individuals, but that is no longer so. The surviving right of private prosecution is of questionable value and can be exercised in a way damaging to the public interest."

41. A private prosecution isn't necessarily therefore in the public interest. A person or body contemplating or bringing a private prosecution might or might not be acting in good faith. A private prosecution (unlike a prosecution by the CPS) does not have to satisfy an evidential and public interest test (see R (on the application of Charlson) v Guildford Magistrates Court and ors [2007] 3AllER 163); and where a private individual initiates a prosecution, he does not truly do so as a representative of the public.
42. It is true that there is a public interest in the integrity of a private prosecution, and indeed, obviously, in the bringing of criminals to justice. In addition, once a prosecution is commenced, a prosecutor, private as well as public, has duties of disclosure under the Criminal Procedure and Investigations Act 1996. See also R v Pawsey [1989] Crim L.R. 152 where the CPS was ordered to disclose unused witness statements and exhibits from the original investigation on the application of a private prosecutor once a prosecution had commenced (the CPS having originally refused to disclose those statements of witnesses who had not given their consent, though in the event the application for disclosure made to the court was not opposed).
43. Nonetheless the right to bring a private prosecution does not carry with it the automatic right to override private property rights in the absence of an order of the court; nor does it carry with it the powers conferred by Parliament on the police. It does not confer a right of access to statements, photographs or reports in the hands of the police or the CPS to someone contemplating bringing a private prosecution, even though the request is a legitimate one, and without them, a prosecution would "wither on the vine" (see R v DPP ex p Hallas (1988) 87 Cr App R 340, DC per Lloyd LJ). A private individual or body does not a have a right under PACE to enter private premises and seize property for the purposes of conducting their own investigations or prosecutions. A private prosecutor has no right to require any defendant prosecuted by them to make disclosure (as it would be understood in civil proceedings) in the course of the prosecution. The interests of the private prosecutor are therefore subordinate in these respects to the fundamental private law property and privacy rights of the private citizen, and to the fundamental rights of a defendant in any private prosecution which is brought.
44. I do not doubt that close cooperation between private bodies and the prosecuting authorities may well be of considerable assistance to the prosecuting authorities in cases requiring certain types of expertise, hence the provisions under PACE permitting third parties in certain circumstances to be present at a search and to seize and retain property. See for example R v Milton Keynes Magistrates Court (ex parte Roberts) 14^th October 1994 (unreported). It does not follow however, that the police have a statutory power to retain property seized under PACE when the person otherwise entitled to it wants it back, for the assistance of a potential private prosecutor or a private prosecution which may subsequently be brought. There is an obvious distinction so it seems to me between what may be desirable in a particular case, and what is permissible as a matter of law.

Article 6 of the ECHR

45. It is said by the Defendants (though the arguments were not developed with any particularity before me) that the construction of section 22 of PACE contended for by the Claimants violates the implied right of access to the court under Article 6 of the ECHR, with which the court has a statutory duty to act compatibly unless it is required by primary legislation to act to the contrary.
46. I do not agree. FACT is not prevented by any procedural bar from bringing a private prosecution if it wishes to do so; and it has been able to do so even after the interim order was made in this case. It is simply in the same position it would have been in had the Police not seized the Property in the first place. It is also open to FACT, as it would be open to any private prosecutor to make an application for third party disclosure to the Crown Court, which can then be considered on its merits. So far as the fairness of the prosecution itself is concerned, the rights enshrined in Article 6 as reinforced by the Human Rights Act 1998 protect the rights of the defendant to a fair trial. So far as disclosure is concerned, the duties of disclosure are not reciprocal. As Lord Hope said in Sinclair v HM Advocate [2005] HRLR 26, at paragraph 33 in this context: "the rules [in relation to disclosure] operate in one direction only. The prosecution has no Convention right which it can assert against the accused."

When the power of retention comes to an end

47. The police enjoy their powers only for so long as is necessary for carrying out their law enforcement functions for which the powers given under PACE have been conferred, or for carrying out acts reasonably incidental to those purposes. The use of the word "may" in section 22(2) means that the police have a discretion whether to retain property for the stated purposes in section 22(2). But they can only do so if, as a matter of fact retention is necessary; and it ceases to be necessary, once the purposes contemplated by section 22 are "exhausted" (per Park J in Gough at [31] citing Lightman J in Costello at [1]).
48. It cannot be said however that because a decision not to prosecute has been taken, the right to retain necessarily comes to an end. There may be other circumstances which render the retention of property lawful (for example, if the police's own investigations are continuing). But in the absence of an active investigation or some other proper justification for the retention of the property, the police so it seems to me cannot simply 'hang on' to property in case, at some point in the future they decide to take further steps for the purposes for which the legislature contemplated that property might have been seized, used or retained in the first place. In this case for example, it is said on behalf of the Defendants (though it is disputed by the Claimants) that during the conversation between DC Watkin and Mr Brett on 12 December 2008, DC Watkin told Mr Brett that the decision not to prosecute did not preclude a prosecution by the CPS in the future. It is not however suggested by the Defendants that the Police were entitled to retain the Property against that eventuality.

Conclusion

49. In conclusion, I am not persuaded the police are entitled to retain property seized under PACE against the wishes of the person otherwise entitled to possession of it once a decision not to prosecute has been taken, so that a private body can consider whether to bring a prosecution, or whilst that private prosecution is being brought, in the absence of a continuing independent justification for retention.
50. I will hear further submissions from the parties as to the consequences of my conclusions on these proceedings, and any further orders that may have to be made.