(1)Subject to subsection (4) below, anything which has been seized by a constable or taken away by a constable following a requirement made by virtue of section 19 or 20 above may be retained so long as is necessary in all the circumstances.
(2)Without prejudice to the generality of subsection (1) above—
(a)anything seized for the purposes of a criminal investigation may be retained, except as provided by subsection (4) below—
(i)for use as evidence at a trial for an offence; or
(ii)for forensic examination or for investigation in connection with an offence; and
(b)anything may be retained in order to establish its lawful owner, where there are reasonable grounds for believing that it has been obtained in consequence of the commission of an offence.
(3)Nothing seized on the ground that it may be used—
(a)to cause physical injury to any person;
(b)to damage property;
(c)to interfere with evidence; or
(d)to assist in escape from police detention or lawful custody,
may be retained when the person from whom it was seized is no longer in police detention or the custody of a court or is in the custody of a court but has been released on bail.
(4)Nothing may be retained for either of the purposes mentioned in subsection (2)(a) above if a photograph or copy would be sufficient for that purpose.
(5)Nothing in this section affects any power of a court to make an order under section 1 of the Police (Property) Act 1897.
(6)This section also applies to anything retained by the police under section 28H(5) of the Immigration Act 1971.
(7)The reference in subsection (1) to anything seized by a constable includes anything seized by a person authorised under section 16(2) to accompany a constable executing a warrant.
Cases considering section 22 24
[2009] EWCA Civ 1156 · 5 November 2009Interprets
Section 22 permits retention only where necessary in all the circumstances. It can permit police to retain lawfully seized material for a bona fide private prosecution after the CPS has declined to prosecute, following a balanced and reviewable assessment. (see paras [22]-[23]; [53]; [58])
The phrase “so long as is necessary in all the circumstances” requires a case-specific assessment at each stage of investigation and prosecution. It does not make a CPS decision not to prosecute conclusive, and the resulting police decision is reviewable on ordinary public law grounds. (see paras [30]; [53]-[54])
The court treated subsection (2) as giving examples, without limiting the general test in subsection (1), of criminal-investigation purposes for which retention may be necessary. (see paras [22]-[23]; [30])
The court held that the criminal-investigation examples in section 22(2)(a) are not confined to a prosecution by the CPS or to the offence that led to the search warrant. (see paras [23]; [58])
Retention for use as evidence at a trial for an offence can encompass a trial arising from a bona fide private prosecution, subject to the overarching necessity assessment. (see paras [16]; [23]; [58])
Retention for forensic examination or investigation in connection with an offence can encompass a bona fide private prosecution, subject to the overarching necessity assessment. (see paras [16]; [23]; [58])
[2004] EWCA Civ 206 · 2 March 2004Interprets
The court held that lawful seizure does not authorise indefinite retention. The police had to establish a continuing statutory purpose under section 22; in its absence, the claimants' possessory title prevailed (see paras [28]-[35]; [43]-[45]).
Retention is permitted only for so long as necessary in all the circumstances. Necessity must be connected with a continuing law-enforcement purpose; the fact that police are defending a civil action for return of goods is not enough (see paras [32]-[35]; [44]-[45]).
The specified purposes in section 22(2) did not sustain retention. The criminal-investigation purposes had ended and the ownership purpose was not being pursued realistically (see paras [28]-[31]).
Retention for the stated purposes of a criminal investigation could have existed temporarily, but those purposes had been exhausted before the claimants commenced their civil action (see para [31]).
Retention for use at a criminal trial could not justify continued detention because no criminal proceedings were intended by the time of the civil action (see para [31]).
Retention for forensic examination or investigation could not justify continued detention because those purposes had been exhausted before the civil action (see para [31]).
Reasonable grounds to suspect that goods were obtained through an offence did not suffice. Retention had to be genuinely for establishing the lawful owner, and there was no realistic prospect of identifying one (see paras [28]-[30]).
Cited only.
[2003] EWCA Civ 398 · 19 February 2003
The court applies section 22’s retention power to determine whether the police could retain seized property while ownership remained disputed. The power continued at least until 12 September 1990 (see paras [10], [17]-[21]).
The court applies the requirement that seized property may be retained only so long as necessary in all the circumstances. The ownership dispute and police enquiries justified continued retention until at least 12 September 1990 (see paras [10], [18]-[21]).
The court treats subsection 22(2) as continuing to operate while the circumstances justified retention to establish lawful ownership. An officer’s view that the claimant was unlikely to be the thief did not itself end the statutory power (see paras [17]-[21]).
The court applies the power to retain property to establish its lawful owner where there are reasonable grounds for believing that it was obtained through an offence. Competing ownership claims and the continuing investigation meant that the power remained available (see paras [17]-[21]).
4 more judgments, and what each says about section 22, are in the
case-law panel in the full Act.