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property

robh

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heres a quick note about seized property. if you have right to property seized by the police and they are delaying returning it then make an application under the police property act 1897. Its free and simple. Its heard in the magistrates. Otherwise start civil action for torts sec 4 interfeerance with goods act 1997and or. possibly trespass and conversion. Pace 1984 code b is where the relevent statute is and the notes 7.15 is worth a read. For caselaw see owens v Merseyside, carter v Ipswich (jr) marcel and comminsioner of police, webb v chief constable of Merseyside and Malone v met police commissioner. There is a great quote from lord denning in ghani v jones 1970 para 709. I will post more when ive more time.

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 statute 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.

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.

These are from the guidance notes in code b pace 1984.

7.5 An officer may arrange to photograph, image or copy, any document or other article they have the power to seize in accordance with paragraph 7.1. This is subject to specific restrictions on the examination, imaging or copying of certain property seized under the Criminal Justice and Police Act 2001, Part 2. An officer must have regard to their statutory obligation to retain an original document or other article only when a photograph or copy is not sufficient.

7.9 It is the responsibility of the officer in charge of the investigation to make sure property is returned in accordance with sections 53 to 55. Material which there is no power to retain must be: separated from the rest of the seized property, and returned as soon as reasonably practicable after examination of all the seized property.

7.9A Delay is only warranted if very clear and compelling reasons exist, for example: the unavailability of the person to whom the material is to be returned, or the need to agree a convenient time to return a large volume of material

7.9B Legally privileged, excluded or special procedure material which cannot be retained must be returned: as soon as reasonably practicable, and without waiting for the whole examination.

7.9C As set out in section 58, material must be returned to the person from whom it was seized, except when it is clear some other person has a better right to it. (See Note 7E.)

7.10 When an officer involved in the investigation has reasonable grounds to believe a person with a relevant interest in property seized under section 50 or 51 intends to make an application under section 59 for the return of any legally privileged, special procedure or excluded material, the officer in charge of the investigation should be informed as soon as practicable and the material seized should be kept secure in accordance with section 61. (See Note 7C.)

7.11 The officer in charge of the investigation is responsible for making sure property is properly secured. Securing involves making sure the property is not examined, copied, imaged or put to any other use except at the request, or with the consent, of the applicant or in accordance with the directions of the appropriate judicial authority. Any request, consent or directions must be recorded in writing and signed by both the initiator and the officer in charge of the investigation. (See Notes 7F and 7G.)

7.14 Subject to paragraph 7.15, anything seized in accordance with the above provisions may be retained only for as long as is necessary. It may be retained, among other purposes: (i) for use as evidence at a trial for an offence; (ii) to facilitate the use in any investigation or proceedings of anything to which it is inextricably linked (see Note 7H); (iii) for forensic examination or other investigation in connection with an offence; (iv) in order to establish its lawful owner when there are reasonable grounds for believing it has been stolen or obtained by the commission of an offence.

7.7 The Criminal Justice and Police Act 2001, Part 2 gives officers limited powers to seize property from premises or persons so they can sift or examine it elsewhere. Officers must be careful they only exercise these powers when it is essential and they do not remove any more material than necessary. The removal of large volumes of material, much of which may not ultimately be retainable, may have serious implications for the owners, particularly when they are involved in business or activities such as journalism or the provision of medical services. Officers must carefully consider if removing copies or images of relevant material or data would be a satisfactory alternative to removing originals. When originals are taken, officers must be prepared to facilitate the provision of copies or images for the owners when reasonably practicable. (See Note 7C .)

7.8 Property seized under the Criminal Justice and Police Act 2001, sections 50 or 51 must be kept securely and separately from any material seized under other powers. An examination under section 53 to determine which elements may be retained must be carried out at the earliest practicable time, having due regard to the desirability of allowing the person from whom the property was seized, or a person with an interest in the property, an opportunity of being present or represented at the examination.

7.8A All reasonable steps should be taken to accommodate an interested person’s request to be present, provided the request is reasonable and subject to the need to prevent harm to, interference with, or unreasonable delay to the investigatory process. If an examination proceeds in the absence of an interested person who asked to attend or their representative, the officer who exercised the relevant seizure power must give that person a written notice of why the examination was carried out in those circumstances. If it is necessary for security reasons or to maintain confidentiality officers may exclude interested persons from decryption or other processes which facilitate the examination but do not form part of it. (See Note 7D .)

7.15 Property shall not be retained under paragraph 7.14(i), (ii) or (iii) if a copy or image would be sufficient.

(d) Rights of owners etc 7.16 If property is retained, the person who had custody or control of it immediately before seizure must, on request, be provided with a list or description of the property within a reasonable time.

Section 3 of the Human Rights Act 1998 provides: Interpretation of Legislation (1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.

Article 8 of the Human Rights Act 1998 provides: Right to respect for private and family life

(1) Everyone has the right to respect for his private and family life, his home and his correspondence. This is a good reflection of the leading case law. It has been a long standing principle of the common law that, absent legislative authorisation, a court may not confiscate the property of a citizen: see Malone v. Commissioner of Police of the Metropolis [1980] Q.B. 49; Webb v. Chief Constable of Merseyside Police [2000] All E.R. 209, 223J-225E, per May L.J.; at 226E, per Pill L.J

Stephenson L.J. said at page 61H: "The common law can develop in many ways, but I would accept it as clear law that, generally speaking, the right or power to deprive a defendant of his property even for a time, whether in criminal or in civil proceedings, for the purpose of punishing him by forfeiture or compensating the victim of his wrongdoing by any form of restitution, can only be conferred by express and unambiguous statutory provisions."

Protocol 1 article 1 echr.

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

Article 8 is a qualified right. In order to be justified, however, an interference by the state with a person’s article 8 rights must fall within one of the exceptions in article 8(2) and must meet the general requirements of justification (it must be in accordance with law and necessary in a democratic society). It is for the citizen who enjoys the right to establish interference. It is for the public body interfering with the right to justify its interference: r (wood) v metropolitan police commissioner [2009] all e r 951.

37. Rights under article 1 protocol 1 (“a1p1”). In sporrong and lonnroth v sweden (1982) 5ehrr 35 at [61] the ecthr interpreted a1p1 as containing “three distinct rules”. There will be prima facie interference with the right to property if: a. The peaceful enjoyment of the applicant’s possessions has been interfered with by the state (rule 1); b. The applicant has been deprived of possessions by the state (rule 2); c. The applicant’s possessions have been subjected to control by the state (rule 3).

The requirement of necessity imposed by section 22(1) of PACE applies to items retained under section 8(2) of that Act. This interpretation is, consistent with the Code of Practice for application of PACE. This provides in Section B 7.14 that "Subject to paragraph 7.15 (which relates to cases in which a photograph or image is sufficient) anything seized in accordance with the above provisions may be retained only for so long as is necessary".

Sections 8 and 22 PACE 1984 code b confer separate and complementary powers. Section 8 applies where the constable has been authorised to enter premises to which he would not otherwise have lawful access, and seizes property that he finds there. Section 22 qualifies the general power of seizure conferred by section 19 which is a power "exercisable by a constable who is lawfully on any premises". In both instances the power of retention is temporary, for when goods are seized pursuant to section 8, the power of retention will lapse once "the intention to bring proceedings …had ceased" Gough v Chief Constable of West Midlands Police [2004] EWCA Civ 206, per Park J at para. 31.

Lord Denning MR who, in Ghani v Jones, [1970] 1 QB 693 at 709 said:

"The police must not keep the article, nor prevent its removal, for any longer than is reasonably necessary to complete their investigations or preserve it for evidence, section 22(1) of PACE applies to items retained under section 8(2) of that Act. This interpretation is, in my view, consistent with the Code of Practice for application of PACE. This provides in Section B 7.14 that "Subject to paragraph 7.15 (which relates to cases in which a photograph or image is sufficient) anything seized in accordance with the above provisions may be retained only for so long as is necessary". This interpretation is also consistent, in my view, with the scheme and structure of PACE, in which section 22 is the penultimate provision within Part II governing Powers of Entry, Search and Seizure.

PACE is mandated in order to secure compliance with Article 8 of the ECHR.

A persons rights to their property is a very valuable right
 
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Patrick

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Excellent, very helpful.
This is exactly the sort of additional info that we need more of. And discussions from anyone who has successfully used any tactic against the police tendency to sit on their hands..
 

robh

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Theres also criminal justice and police act 2001 section 54 onwards. Il draft something for that soon if you like. That's a crown court application free of charge and Police must send a barrister to oppose that one. All good fun.
 

Matt

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A very useful resource and explanation, thank you very much for that.
 
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