When lawfully seized items can't be retained

The 1709 Blog could easily have missed the ruling of Mr Justice Sharp in Scopelight Ltd and others v Chief Constable of Northumbria and the Federation Against Copyright Theft [2009] EWHC 958 (QB) in the Queen's Bench Division (High Court, England and Wales) a couple of months ago, were it not for the fact that I spotted it in the newly-published issue 4/2009 of the European Copyright and Design Reports (Sweet & Maxwell, 6 times a year). In short, this was a ruling that the police had no power to retain property under the Police and Criminal Evidence Act 1984 s.22 against the wishes of the person otherwise entitled to possession of it, once a decision not to prosecute has been taken, in order that a private body (in this case FACT) could consider whether to bring a prosecution, or indeed while that private prosecution was being brought.

This action was brought by the Vickermans, a husband and wife team who ran a video search engine website. This was not a file-sharing website, but it did provide thousands of links to third party websites which hosted videos. Following a complaint by FACT, a private commercial organisation representing the interests of the audio-visual industry, that this website was hosting two third party file sharing websites, the police obtained a warrant to enter the Vickermans' premises on the basis that there were reasonable grounds for believing that offences of conspiracy to defraud and money laundering had been committed. On this basis the police lawfully seized internet server equipment and associated documents. That property was later released by the police into the possession of FACT for the purposes of the police investigation.

When eventually the Crown Prosecution Service decided not to prosecute, the Vickermans asked for the return of the seized property. The police said they couldn't, since FACT was considering whether to bring a private prosecution. At this point the Vickermans sued for delivery up of the seized property as well as damages for conversion, while FACT began a private prosecution (still proceeding) in respect of various copyright offences.

So could the police retain the seized property under the Police and Criminal Evidence Act 1984 s.22 even after the CPS had decided not to prosecute, if the retention was for the purpose of assisting a private prosecution? The Vickermans argued that the police power to retain property ended once the CPS decided not to prosecute. The police and FACT both contended that retention was permitted because it was for use as evidence at a trial and forensic investigation for an offence which was the subject of an ongoing prosecution.

Sharp J ruled in favour of the Vickermans. He held as follows:

* The power of the police under the Act to seize, use and retain property was conferred on them for the better performance of their public functions and for law enforcement purposes: those purposes did not include the seizure, use or retention by the police of private property to assist private interests. Parliament never considered whether private property, once seized by the police, could be used by a private body for its own purposes (including considering whether it should bring a private prosecution or bringing a private prosecution).

* While the right of private bodies or individuals to bring a private prosecution was well established, it did not carry with it the automatic right to override private property rights in the absence of an order of the court, nor did it carry with it the powers conferred by Parliament by the police. Accordingly, the police had no power to retain property lawfully seized under the Act against the wishes of the person otherwise entitled to possession of it once a decision not to prosecute had been taken.