Settelen & Anor v Commissioner of Police of the Metropolis

A police power to retain property is not unfettered. The justification for seizure and the justification for continued retention must be distinguished. Under section 22 of the Police and Criminal Evidence Act 1984, retention must be necessary in all the circumstances and requires a fact-sensitive, case-by-case assessment. Where property belongs to an innocent third party, the court may balance the investigative need against that person’s rights of possession, particularly where undertakings or other safeguards can preserve the evidence. A copy may suffice where the statutory conditions for retention are otherwise met. The police cannot retain property indefinitely merely because it was lawfully seized initially or because a further, uncertain investigation exists.

The claimants sought delivery up of a copy of videotape recordings made by the first claimant in connection with work for Diana, Princess of Wales. The Metropolitan Police had seized the original tapes during an investigation concerning Paul Burrell, but that prosecution ended without any charge relating to the tapes. Competing ownership claims were subsequently resolved in the claimants’ favour, and the originals were returned.

The police retained a copy made for investigations into the deaths of the Princess and a close protection officer. The delivery issue was resolved subject to undertakings, leaving costs as the live issue. Determining costs required the court to decide whether the police had been legally entitled to make and retain the copy.

1. The claimants were entitled to delivery up of the copy tape, subject to undertakings for its preservation. The defendant was ordered to pay the claimants’ costs, subject to detailed assessment if not agreed.

2. The common-law principles stated in Ghani v Jones [1970] 1 QB 693 could justify the original seizure in the circumstances of the Burrell investigation, but could not justify retention of the claimants’ property after that investigation and prosecution had ended. The principle in Jaroo v The Attorney General of Trinidad and Tobago [2002] UKPC 5 confirmed that there is no general police power to retain lawfully seized property, not charged as stolen, against the person entitled to possession because of an uncertain future contingency.

3. Sections 19 and 22 of the Police and Criminal Evidence Act 1984 concern different matters. Section 19 governs seizure. Section 22 governs retention. A lawful initial seizure does not create an absolute or continuing right of retention.

4. Under section 22, retention must remain necessary in all the circumstances. The issue must be assessed case by case and fact by fact. Where the property belongs to an innocent third party, the court may balance the investigative need against the third party’s possession and other interests. The availability of safeguards preserving the evidence is material.

5. The court accepted that, if retention of an original were justified, a copy could also be justified, and that section 22 did not require the retained item to relate to the same offence as the offence for which it was initially seized. Those points did not assist the defendant because the original justification had ceased and the claimants’ undertakings provided an adequate preservation regime.

6. Following Gough v The Chief Constable of the West Midlands Police [2004] EWCA Civ 206, the police had no unfettered right to retain property initially seized under section 19. An assertion of a right to retain was capable of challenge by the court.