Retaining property – a legal minefield

Police forces seize and retain huge quantities of property each year. Real problems can arise when property is retained for longer than necessary.  The rise in value of electronic items and computers seized makes this a significant area of financial risk – a fact that many forces have not yet fully grasped. 

The statutory machinery for seeking the permanent detention of assets under the Proceeds of Crime Act 2002 or the Powers of Criminal Courts (Sentencing) Act 2000 is normally the domain of a force’s financial investigators and it is not addressed in this article.

The importance of property rights

The starting point is to recognise the importance the law attaches to the protection of an individual’s property. This comes as no surprise – the protection of property is a fundamental principle of policing too.

The power to retain property is set out in section 22 of the Police and Criminal Evidence Act 1984 (PACE). Where property has been seized under sections 19 and 20, section 22(1) provides a general power to retain property only for “as long as necessary in all the circumstances”. 

Section 22(2) expressly provides that anything seized for the purposes of criminal investigation may be retained for use at a trial for an offence or for forensic examination.  However:
•if a photograph or copy could be made then the property cannot be retained; and
•if the original must be retained rather than merely a copy, there is still a duty under section 21 to return a copy of, or allow access to, the item to the person who was in possession of it when it was seized.

Police Property Act 1897

The Police Property Act (PPA) serves three purposes. Firstly, it is a cost-effective and practical way in which the police can dispose of property which is no longer required, especially where it may be controversial to return to the person who had possession of the property when seized.  Secondly, it gives the public a route by which they can seek the return of property. Lastly, it allows for disposal of unclaimed property, provided the Police (Property) Regulations 1997 are followed.
Section 1 provides:

“Where any property has come into the possession of the police in connection with their investigation of a suspected offence a court of summary jurisdiction may, on application, either by an officer of police or by a claimant of the property make an order for the delivery of the property to the person appearing to the magistrate or court to be the owner thereof, or if the owner, cannot be ascertained, make such order with respect to the property as to the magistrate or court may seem meet.”

After six months from the making of such an order, the rights of any other person to that property are extinguished. This provides finality for the police.

Demanding the return of property – civil claims

The alternative route is for a person to bring civil proceedings in the county court or the High Court for return of their goods. The time limit for bringing this type of action is six years. A claimant can demand both the return of his goods and financial compensation for the time that he has been deprived of them or for damage to the goods themselves. 

Property can only be retained for a legitimate purpose

Once property has been seized, retention is lawful only if it is necessary for a legitimate purpose. Normally that will be the purpose for which it was originally seized under sections 19 or 20 of PACE. 

The case of Scopelight Ltd v Chief Constable of Northumbria considers other reasons that might be held to be a legitimate purpose.

Northumbria Police seized internet server equipment and documents from Scopelight, a small-scale website operator. Following a criminal investigation into potential offences, including conspiracy to defraud, the Crown Prosecution Service (CPS) decided not to prosecute. The organisation FAC