Scopelight Ltd & Ors v Chief of Police for Northumbria & Anor

Property lawfully seized under Police and Criminal Evidence Act 1984, section 22 may be retained for a bona fide private prosecution. A decision by the CPS not to prosecute does not itself require its return or conclusively determine the public interest.

The police must decide whether retention is necessary in all the circumstances. Relevant matters include the proposed prosecutor’s identity and motive, the gravity of the allegation, the CPS reasons for declining to prosecute, the significance of the material, and matters concerning the proposed defendant. The statutory powers cannot be used to provide material for private purposes, but a criminal prosecution remains a public purpose. This approach is compatible with Article 1 of the First Protocol.

Police officers executing a warrant under Police and Criminal Evidence Act 1984 seized computers, servers, financial documents and other property from Scopelight Ltd and its owners during an investigation into alleged copyright-related offending.

After the CPS decided not to commence a prosecution, FACT stated that it was considering, and later began, a private prosecution. The claimants sought delivery up and damages for conversion. Sharp J determined a preliminary issue in their favour, holding that the police could not retain the property merely to enable a private body to consider or pursue a prosecution without an independent continuing justification.

The Chief of Police and FACT appealed. The central issue was whether section 22 permitted continued retention for forensic examination, investigation or evidence in a private prosecution after the CPS had declined to prosecute.

1. Appeal allowed unanimously. Leveson LJ, with whom Wilson and Ward LJJ agreed, held that Sharp J had construed section 22 of the Police and Criminal Evidence Act 1984 too narrowly. The CPS decision not to prosecute did not preclude the police from retaining lawfully seized property for a private prosecution.

2. Section 22(1) permits retention only so long as necessary in all the circumstances. Section 22(2)(a) gives illustrations of that power: retention for forensic examination or investigation connected with an offence, or for evidence at a trial for an offence. The references are not confined to the offence that prompted the warrant, to an investigation conducted by the police, or to a prosecution conducted by the CPS.

3. Marcel, [1992] Ch 225, remained binding authority that PACE powers cannot be used to make seized material available for a private individual’s private purposes. It did not address material used by a private prosecutor for the public purpose of investigating and prosecuting crime. A private criminal prosecution was therefore not equivalent to civil use of seized documents for damages.

4. The statutory preservation of private prosecutions in the Prosecution of Offences Act 1985, and the decision in Duckenfield, [2000] 1 WLR 55, showed that the CPS is not the sole arbiter of the public interest. The CPS may properly decline to prosecute while not taking over and stopping a private prosecution. Existing safeguards against vexatious, unfair or abusive prosecutions did not justify a categorical prohibition on retention.

5. Where a private prosecution is proposed, the police must make a balanced, fact-specific assessment. Relevant considerations include the prosecutor’s identity and motive, the gravity of the allegation, the CPS decision and reasons, the importance of the retained material, and material relating to the proposed defendant. The decision is reviewable on ordinary public law grounds. The police need not seek out a private prosecutor, but must deal with a request for return promptly.

6. Article 1 of the First Protocol was consistent with that construction. Temporary seizure was a control of possessions which required a proportionate balance with the general interest; no incompatibility with the section 22 assessment was established. The court invited submissions on continuation of the interim order.

• Court of Appeal (Civil Division) — allowed the appeal in [2009] EWCA Civ 1156, holding that section 22 of the Police and Criminal Evidence Act 1984 could permit retention for a private prosecution after a CPS decision not to prosecute.
• High Court — Sharp J had determined a preliminary issue in favour of Scopelight and the Vickermans, holding that retention was not permitted merely to allow a private body to consider or bring a prosecution without an independent continuing justification. No citation was stated in the judgment.