Wiltshire Constabulary v McDonagh

The necessity requirement in Police and Criminal Evidence Act 1984, s 22(1), applies to property seized under a warrant issued under s 8(2). Retention must remain necessary in all the circumstances and must be reassessed as the investigation develops. Relevant circumstances are not confined to police law-enforcement functions and may include the effect of retention on a person’s home and Convention rights. A caravan serving as a person’s ordinary residence is a home under Article 8 of the ECHR. Its seizure and retention require a pressing social need, proportionality and a fair balance between the individual’s rights and the public interest.

The Chief Constable appealed against a decision of HH Judge Edwards in the Brentford County Court. The judge had held that property seized under a search warrant issued pursuant to Police and Criminal Evidence Act 1984, s 8(2), was subject to the retention controls in s 22. The dispute concerned a caravan seized during an investigation into suspected theft and money laundering. The respondent said that it was her family home and that its retention left her homeless while she was heavily pregnant. The central issues were whether s 22(1) applied to property seized under s 8(2), and how Article 8 of the ECHR affected the lawfulness of its retention.

1. Appeal dismissed. The requirement in Police and Criminal Evidence Act 1984, s 22(1), that seized property may be retained only for as long as necessary in all the circumstances applies to property seized under s 8(2). Sections 8 and 22 confer separate but complementary powers. Section 8 authorises entry, search, seizure and retention following a warrant; s 22 governs the continuing retention of seized property.
2. The opening words of s 22(1) are general. The distinction between property seized by a constable and material taken away following a requirement under ss 19 or 20 does not exclude property seized under s 8. The examples in s 22(2) emphasise, rather than limit, the generality of subsection (1).
3. Retention under s 8 is temporary. The need for retention must be assessed in the circumstances existing from time to time. As an investigation progresses, new circumstances may emerge, including changes in the evidential need or in the effect of retention on the person formerly entitled to possession. Circumstances relevant under s 22(1) are not limited exclusively to those associated with police functions.
4. A caravan constituting a person’s ordinary residence is a home for Article 8 purposes. Its seizure and removal interfere with the right to respect for the home. The interference must answer a pressing social need, be proportionate to the legitimate aim, and strike a fair balance between the individual’s Article 8 rights and the public interest in preventing crime. The exceptions in Article 8(2) are narrowly interpreted, and the need for the measure must be convincingly established.
5. The safeguards governing the issue of a warrant under s 8 do not require the justice of the peace to assess the effect of retaining each item on affected individuals. At the warrant stage, the items and their personal impact may be unknown. That assessment is therefore made through the continuing necessity requirement in s 22(1). The first-instance judge was correct and the appeal was dismissed with costs, subject to detailed assessment if not agreed.

• High Court (Queen’s Bench Division): HH Judge Edwards, sitting in the Brentford County Court, held that retention of property seized under Police and Criminal Evidence Act 1984, s 8(2), was subject to s 22. The High Court dismissed the Chief Constable’s appeal.