Gough & Anor v West Midlands Police

Police who lawfully seize goods must identify a continuing statutory basis for retaining them against the former possessor. Under section 22 of the Police and Criminal Evidence Act 1984, reasonable suspicion that goods derive from crime does not suffice. Retention must serve a real and continuing statutory purpose.

• Retention to establish the lawful owner requires a realistic prospect of doing so.
• Retention pending a contemplated application under the Police (Property) Act 1897 ends when that intention ends.
• The existence of civil proceedings for return of the goods cannot itself make continued retention necessary.

Where no continuing statutory power exists, the former possessor's possessory title prevails over the police, even if that person is not proved to be the true owner.

The claimants operated a vehicle-breaking business. In May 1997 the police seized vehicles and parts which they suspected had been stolen. No criminal charges were brought. The police returned identifiable items but retained parts from which identifying marks had been removed.

The claimants brought County Court proceedings for delivery up and damages for the depreciation of the retained goods. HH Judge McKenna held that the police had lawfully retained them until trial, although he ordered delivery up shortly afterwards. The claimants appealed on liability only.

The central issue was whether section 22 of the Police and Criminal Evidence Act 1984, or the proposed use of the Police (Property) Act 1897, authorised retention after the police had abandoned both criminal proceedings and a proposed application to the magistrates.

Disposition

The Court of Appeal unanimously allowed the appeal. Park J gave the principal judgment. Carnwath and Potter LJJ agreed, subject to reservations about an issue under the Police (Property) Act 1897 which did not require decision.

1. Following Webb and Costello, the police had no title to the goods merely because they had lawfully seized them. They could resist the claimants' possessory title only by establishing a continuing statutory power to retain the goods. Suspicion that the goods were criminal property, or a public-policy objection to their return, was not a defence in the civil action.

2. Section 22(2)(b) of the Police and Criminal Evidence Act 1984 did not apply. Although there were reasonable grounds to suspect that the parts had been obtained through an offence, the police were not retaining them in order to establish their lawful owner. There was no realistic prospect of identifying any other owner, particularly because the retained parts bore no identifying marks. The purposes of section 22(2)(a), namely use at a trial or forensic examination or investigation, had also been exhausted.

3. Section 22(1) could justify retention while the police genuinely intended to seek an order under section 1 of the Police (Property) Act 1897. That necessity ended when, on commencement of the County Court claim, they decided not to invoke the magistrates' jurisdiction. The civil proceedings themselves did not create a new necessity: that reasoning was circular and would improperly allow the police to retain goods merely because they chose to defend their detention.

4. Carnwath LJ added that, after civil proceedings begin, section 22(1) permits only the short period reasonably needed to decide whether a substantial defence exists, normally at or about the time for serving the defence. The issue whether magistrates retain a public-policy discretion under the 1897 Act was reserved.

5. The police were therefore liable in principle for wrongful retention. The quantum of consequential damages was left for the County Court. Park J observed, without deciding the point, that unexplained delay by the claimants might be relevant to the recoverable depreciation but could not defeat liability.

• Court of Appeal (Civil Division) — allowed the claimants' appeal on liability: [2004] EWCA Civ 206.
• Birmingham County Court (HH Judge McKenna) — on 20 May 2003, held that the police had lawfully retained the goods until trial, but ordered their delivery up 14 days after judgment.