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

Police powers under the Police and Criminal Evidence Act 1984 to seize, use and retain property are confined to statutory law-enforcement purposes. Property cannot be retained under section 22 merely to assist a private body or individual with a private investigation or prosecution, however useful that assistance may be. The purposes in section 22(2) are examples of the general purposes permitted by section 22(1), not independent grounds overriding those limits. Retention remains lawful only while necessary for an active investigation, prosecution or reasonably incidental law-enforcement purpose. Once those purposes are exhausted, the person otherwise entitled to possession has the superior possessory right. A private prosecutor’s right of access to the courts does not include an automatic right to override property rights or use police powers.

The claim concerned 31 items seized by Northumbria Police from the claimants during an investigation into alleged copyright and related offences. The Crown Prosecution Service decided not to prosecute the claimants, after which the Federation Against Copyright Theft decided to bring, and later commenced, a private prosecution. The property remained in FACT’s possession for investigation and potential use as evidence.

The claimants sought delivery up and damages for conversion. The preliminary issue was whether section 22 of the Police and Criminal Evidence Act 1984 authorised continued police retention of the property to assist FACT’s contemplated or commenced private prosecution.

1. The preliminary issue was determined in favour of the claimants. The police could not justify retaining property seized under PACE solely to assist FACT with a private prosecution or with private forensic examination or investigation. The court would hear further submissions on the consequences and consequential orders.

2. Sections 19 and 22 of PACE confer only a temporary statutory right to retain property. Under section 22(1), retention must remain necessary in all the circumstances for the law-enforcement purposes for which the powers were conferred. Section 22(2)(a), including retention for use as evidence or for forensic examination, must be read subject to that limitation. The subsection gives examples of permitted purposes and does not enlarge the general statutory purpose.

3. The statutory purposes include investigation and prosecution of crime by the police or another prosecuting authority, return of property to its true owner, and acts reasonably incidental to those purposes. They do not include using state-conferred powers to serve the private interests of a private prosecutor. The reasoning in Marcel and ors v Commissioner of Police of the Metropolis and anor and Gough v The Chief Constable of the West Midlands Police was adopted and applied.

4. A decision not to prosecute does not automatically terminate retention. Continued retention may remain lawful where an active police investigation or another independent statutory justification exists. It becomes unlawful when the statutory purposes are exhausted and no continuing justification remains. The former possessor then has the superior right to possession under the common law of detinue and conversion.

5. The right to bring a private prosecution, preserved by section 6 of the Prosecution of Offenders Act 1985, does not carry an automatic right to override private property rights or to exercise police powers. Article 6 of the ECHR was not infringed because FACT remained free to prosecute and could seek third-party disclosure from the Crown Court.