Vidler v Chief Constable of Hertfordshire Police

Retention of property under section 22 of the Police and Criminal Evidence Act 1984 remains justified where it is necessary in all the circumstances for evidential or investigative purposes and a photograph or copy would not be sufficient. A disputed issue of authorship or authenticity may justify retaining the original item for further examination before trial. Where criminal proceedings are ongoing, the magistrates’ court is the appropriate forum for pursuing the return of property connected with those proceedings. Applications for expenses require an identified legal basis and may be certified as totally without merit where they are wholly unfounded.

The applicant applied to set aside an order made by Chamberlain J refusing an application for the return of her mobile telephone and ordering her to pay £410 in costs. The police initially stated that the phone was being retained until its contents could be exhibited as evidence. Following directions, they clarified that the evidential download had been served but that the applicant disputed sending a message from the phone, making further examination potentially necessary.

The court also dealt with the respondent’s further costs application, two applications by the applicant for payment of expenses, and a claim form concerning alleged personal injuries and expenses.

1. Application to set aside. The application was refused and Chamberlain J’s costs order stood. The police’s revised explanation provided a clear and reasoned justification for continued retention. The applicant denied the offence and specifically denied sending a message from her mobile telephone. In those circumstances, retaining the phone could remain necessary for forensic examination or investigation and for use as evidence at trial.
2. Statutory retention test. Section 22(1) and section 22(2)(a) of the Police and Criminal Evidence Act 1984 permitted retention for so long as necessary in all the circumstances, including for evidential use or forensic examination and investigation. Section 22(4) prevented retention for those purposes where a photograph or copy would be sufficient. A disputed question as to whether a message was sent by the defendant could mean that a copy was insufficient because third-party examination might be required.
3. Proper forum. Any further challenge to the justification for retaining the phone should be pursued in the magistrates’ court, which had full visibility of the criminal proceedings and the evidence.
4. Costs. The respondent’s further costs application was refused. The need for further clarification arose because the police had given the court an inaccurate initial reason for retention. It was appropriate to allow the police to correct that position, but there was no justification for awarding them the resulting costs.
5. Other applications. The two applications for payment of expenses were dismissed and certified as totally without merit. They identified no legal basis for recovery and mischaracterised the court orders. The claim form was not determined. The judge observed that any personal-injury claim belonged in the county court, while no cause of action or basis for an expenses claim was apparent.

The application sought to set aside an order of Chamberlain J dated 26 March 2021, which had refused return of the mobile telephone and ordered costs of £410. The High Court refused the application. The judgment also recorded an earlier judgment by the same court, issued as [2021] EWHC 1197 (QB).