Indecent images: Claims for conversion

In accordance with section 22 of the Police and Criminal Evidence Act 1984 (PACE), the police can only retain items lawfully seized for use as evidence at trial, for forensic examination or for investigation in connection with an offence. Anything may be retained in order to establish its lawful owner.

What, then, is the position when a forensic examination has been completed locating indecent images but no prosecution follows, the property is no longer required for any investigation and the lawful owner is known?

In such circumstances the power of the police to retain the property has now ceased. However, returning the property containing indecent images is in itself unlawful and an offence pursuant to section 1(1)(b) of the Protection of Children Act 1978 (PCA).

The question becomes whether the police can lawfully retain the property, eg, a laptop, which contains both the legitimate and illegitimate data. Schedule 1 of the PCA sets out the procedure in such circumstances.

Schedule 1 Protection of Children Act 1978

The schedule applies where property has been lawfully seized, there is no legitimate reason for the police to retain custody of the property, ie, under section 22 PACE, and the police are satisfied that there are reasonable grounds for believing that the property is likely forfeitable property. Forfeitable property is defined as any indecent photograph or pseudo-photograph of a child and any property that is not reasonably practicable to separate from any forfeitable property.

The process to follow in such circumstances is to serve a notice of intended forfeiture of the property on:

a)every person believed to have been the owner of the property, or one of its owners, at the time of seizure of the property;

b)every person believed to have been an occupier of the premises at the time of seizure; and

c)where the property was seized as a result of a search of any person.

The notice must set out a description of the property seized, how a person may claim the return of the property and the period in which a response must be given (one month).

If a claim is made, a decision must be taken whether to take forfeiture proceedings. If not, the property is treated as forfeited. If forfeiture proceedings are commenced, the magistrates will be required to condemn the relevant property.

The difficulty in many cases is determining whether there are separable parts. If indecent images are to all intents and purposes separate from legitimate data on the laptop, they are deemed a separable part. The court can therefore find that the indecent images should be forfeited but the legitimate data returned to the person claiming the property.

Discussion

Given that data is never completely deleted due to the availability of software to recover deleted files (R v Aslett), the legitimate data will need to be transferred to a new device to prevent any inadvertent return of deleted indecent images.

This involves a cost in expense and police time. As a result, the PCA allows the court to order the person claiming the property to pay the certified costs of carrying out the so-called safe sanitation exercise (paragraph 11(3)(B)).

If Schedule 1 of the PCA is not utilised and the property unreturned, this is an interference with goods and the person claiming the property can bring a civil claim against the police for conversion.

The difficulty with a civil claim is that the county court does not have the same powers as the magistrates court to order the claimant to fund or even require the safe sanitation exercise. The powers of the court in such a claim are either to order the return of the property (or damages in lieu) or not.

The court can refuse to return the device on the basis of the illegality defence under the Bowmakers exception (Bowmakers Ltd v Barnet Instruments Ltd [1944] 2 All ER 579). This exception applies to goods where it is unlawful to deal in them at all and operates to negate a claimant’s lawful right to possession of the property. If the devi