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

The Court of Appeal considered the proper construction of section 22 of the Police and Criminal Evidence Act 1984 with respect to the retention of property seized by police when the Crown Prosecution Service decided not to prosecute. The court held that section 22 permits retention so long as that retention is "necessary in all the circumstances" for purposes connected to the investigation or prosecution of any criminal offence, including forensic examination and use as evidence at trial, and that those purposes are not confined to prosecutions pursued by the CPS. The court accepted the ratio in Marcel v Commissioner of Police of the Metropolis that seized material cannot be used for purely private purposes, but rejected an argument that the CPS decision not to prosecute conclusively precludes retention for use by a private prosecutor. The appropriate approach requires the police to assess, on the individual facts at each stage, whether retention is necessary having regard to factors such as the identity and motive of the proposed prosecutor, the gravity of the allegations, the reasons for the CPS decision and the police view of the material's significance.

This was an appeal from an order of Sharp J in the High Court concerning an action by Scopelight Ltd and its owners for the return of property seized under a section 8 warrant executed by Northumbria Police with representatives of the Federation Against Copyright Theft (FACT) present. The seized items included computer servers and data media. The Crown Prosecution Service informed the police that it would take no further action and FACT indicated that it intended to consider and then commence a private prosecution. The primary legal question was whether, once the CPS had declined to prosecute, section 22 of PACE permitted the police to retain seized material for use in a private prosecution or forensic examination related to a criminal offence.

Nature of the claim:

• Civil claim for delivery up of property and damages for conversion; preliminary issue on statutory construction of PACE section 22 about retention following a CPS decision not to prosecute; interim orders and a speedy trial were made below.

Issues framed:

• Whether section 22(1) and (2) of PACE permits retention of material seized during execution of a warrant for use in prosecution or forensic examination where the CPS has decided not to prosecute, and in particular whether retention can be justified for use by a private prosecutor; and
• How the Marcel principle (that seized material is to be used for public purposes) and Article 1 of Protocol 1 ECHR (peaceful enjoyment of possessions) affect the interpretation of section 22.

Court's reasoning:

• The court accepted Marcel's ratio that seized material may not be used for private purposes unrelated to public functions, but Marcel did not decide whether private prosecutors might use seized material where the prosecution is for public purposes. Section 22 must be read as permitting retention "so long as is necessary in all the circumstances" for carrying out the purposes for which the seizure powers exist, which include investigation and prosecution of any criminal offence.
• The court rejected the submission that a CPS decision not to prosecute is determinative of whether retention is in the public interest: the statutory scheme (including the Prosecution of Offences Act 1985) preserves private prosecutions and the DPP/CPS may elect not to take over or discontinue private proceedings in many circumstances. Authorities show that other public and quasi-public bodies prosecute and that private prosecutions can, in some circumstances, be in the public interest.
• The proper approach is fact‑sensitive: police must consider at each stage whether continued retention is necessary in all the circumstances, taking into account factors such as identity and motive of the potential prosecutor, gravity of the alleged conduct, reasons for the CPS decision, the police assessment of the significance of the material and the position of the proposed defendant. The ECHR proportionality considerations are consistent with this balancing exercise.

Procedural posture: Appeal by the Chief Constable and FACT from Sharp J's ruling that the police were not entitled to retain the property once the CPS had decided not to prosecute. The Court of Appeal allowed the appeal and remitted further directions on the interim order.

This was an appeal allowed. The Court of Appeal held that section 22 of PACE does not automatically prohibit retention once the CPS decides not to prosecute. Retention is permissible where the police conclude, on a fact-specific assessment of whether retention is "necessary in all the circumstances", that the material should be retained for forensic examination or for use as evidence at trial in connection with the prosecution of a criminal offence, including a private prosecution. Marcel was accepted as establishing that seized material cannot be used for purely private purposes, but it does not preclude use by a private prosecutor where the retention serves public purposes and the police have properly exercised their evaluative duties under section 22.

Appeal from the High Court of Justice (Sharp J, HQ09X00264). The Court of Appeal ([2009] EWCA Civ 1156) allowed the appeal against Sharp J's ruling on the construction of section 22 of PACE and invited submissions as to continuation of the interim order. No further prior appellate citations given in the judgment.