Merseyside Police v Owens

The statutory power to retain property seized during a criminal investigation extends only for purposes connected with the power of seizure. It does not permit retention merely because the police fear that returning the property may facilitate future crime.

A court exercising its discretionary power to dispose of property may refuse an order where it is itself satisfied that returning the property would indirectly assist or encourage a criminal act. A reasonable police suspicion is insufficient. The necessary factual finding must be made by the court.

The Chief Constable appealed by way of case stated from the decision of a magistrates’ court ordering the return of a CCTV video to the respondent. The video had been seized during an investigation into a suspected arson, but the investigation had closed without identifying the offender.

The Chief Constable relied on the retention power in section 22 of the Police and Criminal Evidence Act 1984 and argued that the magistrates should refuse relief under section 1 of the Police (Property) Act 1897 because the respondent might use the video to attack a person whom he believed had caused the fire. The central issues were the scope of the statutory retention power and whether public policy could justify refusing return of the property.

1. Appeal dismissed. The video had to be returned.
2. The power in section 22(1) of the Police and Criminal Evidence Act 1984 to retain seized property for as long as necessary was not a free-standing power to retain property for any purpose. Sections 22(2) to (4), read with the purposes for which the property was seized, showed that retention had to remain connected with those purposes. The investigation had ended and the video could not be retained merely to prevent a possible future criminal act. The principle stated in Ghani v Jones [1971] QB 693, and the interpretation adopted in Scopelight Ltd v Chief Constable of Northumbria [2010] QB 438, supported that conclusion.
3. Section 1 of the Police (Property) Act 1897 conferred a discretionary jurisdiction. The court could refuse to order return, whether the claim was brought under that section or in ordinary civil proceedings, if it was satisfied on the facts that using the court’s process to return the property would indirectly assist or encourage a crime. The observations in Webb v Chief Constable of Merseyside [2000] QB 427 left open that possibility.
4. It was not enough that the police reasonably believed that the respondent might use the video to commit a crime. The court itself had to be satisfied that return would in fact have that consequence. That required an adequate finding of fact.
5. The case stated procedure concerned questions of law. Although the appellate court could sometimes supplement inadequate findings where the evidence was unchallenged, it could not make disputed findings on an issue which had not been determined below. The stated facts therefore could not support refusal of return on public-policy grounds.

The appeal was brought by way of case stated from the decision of the Liverpool City Magistrates’ Court, which had ordered the return of the video. The Administrative Court dismissed the appeal and directed that the video be returned.