JASON PAUL COSTELLO v CHIEF CONSTABLE OF DERBYSHIRE CONSTABULARY [2001] EWCA Civ 381

IN THE SUPREME COURT OF JUDICATURE

THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM DERBY COUNTY COURT

[2001] EWCA Civ 381

Case No Case No: B2/2000/0415 & B2/2000/0416

Venue Royal Courts of Justice, Strand, London, WC2A 2LL, Thursday 22nd March 2001

Between

JASON PAUL COSTELLOAppellant

CHIEF CONSTABLE OF DERBYSHIRE CONSTABULARYRespondent

Before

Lord Justice Robert Walker the Right

Lord Justice Keene

Mr Justice Lightman

Mr Godfrey Jarand (instructed by Messrs Bemrose & Ling, 30 St Peter's Churchyard, Derby DE1 1NR for the Appellant)

Miss Fiona Barton (instructed by Messrs Weightmans, 60 Charles Street, Leicester LE1 1FB for the Respondent)

Date 22 March 2001

[1]MR JUSTICE LIGHTMAN: INTRODUCTION This is an appeal from two judgments of His Honour Judge Styler sitting in the Derby County Court. The action relates to a Ford Escort car ("the Car") seized by a member of the Derbyshire Constabulary pursuant to section 19 of the Police and Criminal Evidence Act 1984 ("the 1984 Act") in the belief that it was stolen. In the action against the defendant the Chief Constable of the Derbyshire Constabulary ("the Police") the claimant Mr Costello claims the return of the Car and damages for wrong detention. The Car was seized on the 12th July 1996 when in the possession of the claimant and it is common ground that the police were entitled under section 22 of the 1984 Act to retain the car for the statutory purposes there stated until the 5th January 1997 when those purposes were exhausted. The question raised is whether they continued to be entitled to retain it thereafter. The Police contend that the Car was to the knowledge of the claimant stolen and that, though the true owner is unknown (and accordingly the Car cannot be returned to him), on this ground they are entitled to refuse to return the Car to the claimant. There are two parts to this question, namely one of fact whether the Car was to the knowledge of the claimant stolen; and (if that issue of fact is resolved in favour of the Police) one of law whether the claimant is entitled to recover the Car from the Police notwithstanding the fact that it was stolen.

[2]The learned judge in his first judgment dated the 23rd November 1999 held that the Car was to the knowledge of the claimant stolen and that this fact in law precluded the claimant from maintaining his claim to the Car. Some three days later the Court of Appeal gave judgment in the case of Webb v. Chief Constable of Merseyside Police

[2000] 2 WLR 546

("Webb"). The claimant thereupon made an application for a rehearing on the ground that the decision in Webb required the court to uphold his claim to the return of the car. In a second judgment dated the 14th December 1999 the learned judge refused this application. He also refused permission to appeal, but the Court of Appeal granted permission on the 13th April 2000. THE ISSUE OF FACT

[3]The facts of this case can be stated shortly. On the 12th July 1996 the Police received a report of a stolen Volkswagen Corrado ("the Corrado"). It was sighted in Vernon Street, Derby and on arrival there the Police found the claimant together with two other persons in the Car. The Car had the registration number C66 FOV. On the arrival of the Police, the claimant tried to drive away: a short chase followed; and when the Car came to a halt one of the occupants (an unknown youth) made off and the other (a Mr Gareth Scott) was arrested and charged (and later convicted) of the theft of the Corrado and a radio cassette found in the Car. The police seized the Car pursuant to section 19 of the 1984 Act, interviewed the claimant and released him on bail. No criminal proceedings were subsequently commenced against him.

[4]On the 22nd July 1996 the Car was examined by the Police vehicle examiner, DC Potts. He found that the vehicle identification number ("VIN") had been welded in (the original having been obliterated) and the engine number had been ground off. Under the back seat of the Car he found what has aptly been called a car ringing kit. The Car windows were all etched C66 FOV. It is not known when that etching took place.

[5]Enquiries revealed that a Mr Dennis Mortimer had been registered on the 20th August 1985 as keeper of C66 FOV and that in 1987 the Car was converted to a turbo. On the 23rd February 1995 a Mr Darren Duckley was registered as keeper of the Car and on the same day the registration number was changed to DAZ 8273. On the 19th April 1995 a Ms Claire Leach was registered as keeper of DAZ 8273, and on the 14th November 1995 the claimant's then girl friend was registered as keeper. On the 13th December 1995 the registration number was changed back to C66 FOV and on the 13th February 1996 the claimant was registered as keeper (according to his evidence) on the break-up of his relationship with his girl friend and his purchase of the Car from her.

[6]In forming the view which he did that the Car was stolen, the judge placed great weight on the facts that the VIN had been welded in and the obliteration of the original and that the engine number had been ground off. The claimant on this appeal maintains that he should not have done so because there might be an honest and innocent explanation for both. The obliteration of the VIN could have been attributable to a change of bodyshell and the original engine could have been replaced (though this scarcely explains the grinding off). Notwithstanding the theoretical possibility of an honest and innocent explanation, the judge was entitled to place on these facts in the context of the full circumstances of this case the weight which he did. The judge also placed weight on the expert evidence of a Mr Haigh, a consulting engineer called by the Police. The thrust of his evidence was that the Car bore the tell-tale signs of a stolen ringed vehicle to anyone with any expertise in vehicles. The claimant complains that the judge accepted this evidence notwithstanding the fact that Mr Haigh also said elsewhere in his evidence that he was not saying that the Car was stolen. The two passages in the expert's evidence are consistent. The question whether the Car bore the tell-tale signs was a question for the expert in stolen cars; the question whether in fact the Car was stolen was a question, not for the expert, but for the judge. In answering that question the judge was entitled to accept the evidence of the expert and give it the appropriate weight. I see no substance in this complaint. The claimant further complained that neither the Police evidence nor the judge paid any attention to the etching on the Car windows, but in particular having regard to the fact that there was no evidence as to when the etching took place this fact in the circumstances of this case can have had little (if any) significance.

[7]The claimant questioned whether the judge can have properly reached the conclusion which he did on the burden of proof appropriate to substantiating the serious allegations of theft and knowledge of theft on the part of the claimant. In my judgment the judge was entitled to reach the conclusion he did that the burden of proof was discharged on the evidence to which I have already referred. But that evidence did not stand alone. The claimant in his evidence at the trial gave his account of the purchase of the Car by his girl friend. He said that at the home of a friend of his whom he saw regularly called David Spencer she agreed to buy the Car from certain (unnamed) friends of Mr Spencer. Mr Spencer had 7 convictions for handling stolen cars and shortly thereafter (in May 1996) was sent to prison for two years for car-ringing. The claimant himself knew a great deal about motor vehicles and made something of a living buying, doing up and selling motor vehicles, and before his girl friend bought the Car he inspected it. His behaviour on the 12th July 1996 was (to put it at its lowest) highly suspicious and he gave unsatisfactory (and indeed false) evidence at the trial.

[8]Against this background it is hardly surprising that the learned judge held without hesitation that the Car was stolen and that the claimant at all times knew this. Looking at the evidence as a whole it seems to me that the judge was fully entitled to reach this conclusion and his decision is not open to question on this appeal. ISSUE OF LAW

[9]Counsel for the claimant stated that at the commencement of the hearing before him, the judge said words to the effect that the Car was obviously stolen, and he complained that the conduct of the judge in saying this precluded (at any rate the appearance of) a fair trial. But counsel adduced no evidence that the judge made this statement or that any complaint about it was made at the hearing, and the judge was not invited (as he should have been) prior to the hearing of this appeal to comment on this attribution to him. In these circumstances it is not open to the claimant to raise this matter on this appeal. But even if it was open to him and the judge indeed did make some such statement, it is to be borne in mind that, having pre-read the skeletons and papers, it was perfectly proper (if not inevitable) that the judge had formed a provisional view before coming into court and, if it was proper for him to have formed this view, it must equally have been proper for the judge to inform the parties of his view so long as he did not give the impression that he had a closed mind on this issue. For this disclosure enabled the parties to know the way he was currently thinking and accordingly where attention needed to be focused (most particularly by the claimant) at the trial to change his mind.

[10]I now turn to the question of law whether the claimant, who was in possession of the Car when it was seized by the Police, is entitled to its return and damages for wrongful detention since the 5th January 1997. The seizure was pursuant to the provisions of section 19(2)(a) and (3)(a) and the subsequent retention pursuant to section 22(1) and (2) of the 1984 Act. These sections read as follows:

"19 General power of seizure etc (1) The powers conferred by subsections (2), (3) and (4) below are exercisable by a constable who is lawfully on any premises. (2) The constable may seize anything which is on the premises if he has reasonable grounds for believing— (a) that it has been obtained in consequence of the commission of an offence; ... (3) The constable may seize anything which is on the premises if he has reasonable grounds for believing— (a) that it is evidence in relation to an offence which he is investigating or any other offence; ... 22 Retention (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 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, ... (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."

[11]These statutory provisions update earlier statutory provisions and both have been the subject of judicial consideration in cases to which I will refer. They place on a statutory footing and supplement the common law powers of the police: see Malone v. Metropolitan Police Commissioner

[1980] QB 49

("Malone"). The provisions vest in the police no title to the property seized but only a temporary right to retain property for the specified statutory purposes.

[12]The leading authority in the field under consideration is the decision of the Court of Appeal in Webb. In that case the police under the provisions of the 1984 Act seized money in the possession of the claimants on suspicion that it constituted the proceeds of drug trafficking. The claimants were not however convicted of drug trafficking. Convictions would have triggered statutory powers for the confiscation of the money. The claimants sued for recovery of the money. The Court of Appeal held that, once the statutory power to seize and detain the money was exhausted, in the absence of evidence that anyone else was entitled to the money and of any legislative provision to the contrary effect, the claimants could rely on their right to possession at the date of seizure by the police as conferring sufficient title to recover the money from the police and that the police were not entitled to retain the money even if they could establish on the balance of probability that the money was the proceeds of drug trafficking. The illegality of the means of acquisition of the money gave rise to no public policy defence to the claimants' claim. May LJ (with whose judgment Hale and Pill LJJ agreed) said (at p.448C): "... if goods are in the possession of a person, on the face of it he has the right to that possession. His right to possession may be suspended or temporarily divested if the goods are seized by the police under lawful authority. If the police right to retain the goods comes to an end, the right to possession of the person from whom they are seized revives. In the absence of any evidence that anybody else is the true owner, once the police right of retention comes to an end, the person from whom they were compulsorily taken is entitled to possession. ... Illegality Tinsley v. Milligan

[1994] 1 AC 340

[Tinsley] is the leading authority on the effect of illegality upon civil relationships. The essential principles are to be found in the majority opinion of Lord Browne-Wilkinson, with whom Lord Jauncey of Tullichettle and Lord Lowry agreed. Lord Brown-Wilkinson said, at p.370: 'From these authorities the following propositions emerge:(1) property in chattels and land can pass under a contract which is illegal and therefore would have been unenforceable as a contract;

(2) a plaintiff can at law enforce property rights so acquired provided that he does not need to rely on the illegal contract for any purpose other than providing the basis of his claim to a property right;

(3) it is irrelevant that the illegality of the underlying agreement was either pleaded or emerged in evidence: if the plaintiff has acquired legal title under the illegal contract that is enough.' These principles apply equally to legal and equitable rights. The law has in this respect moved on since the enunciation of what is referred to as Lord Eldon's wider principle—as expressed, for instance, in Curtis v. Perry (1802) 6 Ves. 739, 746-747—to the effect that equity will assist neither party to an illegal transaction. It was on this point that the minority in [Tinsley] (Lord Keith of Kinkel and Lord Goff of Chieveley) disagreed with the majority. Lord Browne-Wilkinson explained the shift in the law in these terms, at p.375: 'In my judgment, the explanation for this departure from Lord Eldon's absolute rule is that the fusion of law and equity has led the courts to adopt a single rule (applicable both at law and in equity) as to the circumstances in which the court will enforce property interests acquired in pursuance of an illegal transaction, viz., the Bowmakers rule [1945] K.B. 65. A party to an illegality can recover by virtue of a legal or equitable property interest if, but only if, he can establish his title without relying on his own illegality.' ... The main principle in [Tinsley] is expressed by reference to an underlying agreement to which the claimant and the defendant are parties. In the present appeals, there is no such underlying agreement. The Chief Constable claims no title to the money. If it is supposed, for the sake of illustration only, that Roy Webb acquired the money in issue in his appeal in one or more unlawful transactions consisting of the sale by him of controlled drugs, possession of the money passed to him and there is no question of him seeking to enforce unlawful transactions. The hypothetical transactions are complete and he was in possession of the money notwithstanding the illegality. He does not have to rely on anything more than his right to possession as against the Chief Constable. It is irrelevant that illegality surrounding his acquisition of the money was pleaded in defence or emerged in evidence. He is not seeking to enforce an illegal agreement.

[13]May LJ went on to consider the submissions of the police that there should be available to the police in such circumstances a defence of public policy entitling them to withhold the proceeds of criminal activity from the plaintiffs. He said:

"In my judgment, the court should not extend the law in the way suggested. Although from the Chief Constable's perspective the money is the proceeds of crime, from another perspective the court should not, in my view, countenance expropriation by a public authority of money or property belonging to an individual for which there is no statutory authority. There is statutory machinery for the prosecution of those who deal in drugs and for the confiscation upon conviction of the proceeds of their drug dealing. There is statutory machinery for the confiscation upon conviction of the proceeds of other serious crime. There is statutory machinery for the forfeiture of the cash proceeds of drug trafficking which are being imported into or exported from the United Kingdom. There is no statutory power to confiscate the proceeds of drug dealing within the United Kingdom where the person entitled to possession of the money is not convicted of a drug trafficking offence. I recognise that there may be circumstances where for a variety of reasons a prosecution may not take place. But that does not, in my view, justify expropriation by means of a defence to a civil claim for return of money which has been seized from persons who are not convicted. It is one thing to prosecute to conviction and to take positive steps authorised by statute to confiscate the proceeds of crime from the convicted defendant. It is quite another to resist the claim of an innocent person by asserting some or all of the ingredients of what might have been a prosecution; or to effect confiscation in this way from a convicted person against whom statutory confiscation machinery has not been used.... Stephenson LJ said [in Malone] at pp.61-62: '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.'"

[14]Three general propositions of law are clearly established by Webb: i) the fact of possession of a chattel of itself gives to the possessor a possessory title and the possessor is entitled to rely on such title without reference to the circumstances in which such possession was obtained: his entitlement to do so is not prejudiced by the fact that he obtained such possession unlawfully or under an illegal transaction. His claim can only be defeated by proof of a title superior to his possessory title; ii) in the case of competing claims to ownership, (in the case of personalty as in the case of realty), titles are relative and the issue falls to be determined by reference to the relative strengths of the two claims and the party with the better title (however frail it may be) is entitled to succeed; iii) the statutory power of the police conferred by section 19 of the 1984 Act to seize goods and by section 22 of the 1984 Act to retain them so long as is necessary in all the circumstances places in suspension or temporarily divests all existing rights to possession over the period of the detention, but does not otherwise affect those rights or vest in the police any permanent entitlement to retain the property in the police. The limited right of the police to retain property for the statutory purpose and their obligation thereupon to return it to the "owner" is unaffected by any perceived public policy consideration that the fruits of his criminal activities ought to be withheld from a criminal.

[15]For completeness I should add two qualifications. First there is a limited statutory qualification to the second of these principles created by section 8 of Torts (Interference with Goods) Act 1977 which permits a defendant in an action for wrongful interference to show in accordance with rules of court that a third party has a better right than the claimant as respect all or any part of the interest claimed by the claimant or in right of which he sues. It is clear from the terms of the Law Commission Report to which this section gives effect and the provisions of the section for joinder of such third party as a party to the proceedings that the third party must be identified and that the purpose is to have the issue of his title and any claim he may have against the defendant resolved once and for all in the existing proceedings see e.g. Clerk & Lindsell on Torts 18th ed paras 14-89 to 14-90. This statutory provision has no application in this case since the police cannot identify any third party with a better title than the claimant. Secondly a party cannot assert a right to immediate possession against a defendant if his possession of the goods would be illegal or it would be illegal for the defendant to give him possession: see the cases cited in Clerk & Lindsell above para 14-51. This qualification has no application on the facts of this case, but is relevant to one of the contentions made by the Police.

[16]Since the claimant in this case was in possession of the Car when it was seized by the Police, it might be expected to follow from the principles which I have stated that when the right of the Police to detain it expired, the Police were in this case obliged to return the Car to the claimant. But the Police seek to establish and rely on two exceptions or qualifications to these principles, to each of which I must refer in turn. POSSESSION OF STOLEN GOODS

[17]The first suggested exception or qualification is that no possessory (or other) title in stolen property vests in the thief or a subsequent receiver of stolen property and that accordingly on seizure of stolen property the police become possessory owners and have no obligation to restore the stolen property to the person from whom they seized it: their obligation is limited to restoring to the true owner if ascertained. The question has long been regarded as open whether there is such an exception or qualification and it continues to be raised e.g. in Winfield & Jolowicz on Tort 10th ed. p.603 and Salmond & Heuston The Law of Torts 21st ed. p.109-110. Indeed there is a note of a decision of Milmo J in Solomon v. Metropolitan Police Commissioner [1982] Crim.LR 606 ("Solomon") that public policy and the doctrine of "ex turpi culpa non oritur actio" preclude a thief from recovery. This is the view adopted by Feldman on Entry Search and Seizure para 11.41. The decision in Webb is distinguishable on the ground that the purchaser of the drugs (or other person who made payment for them) in that case clearly intended the claimant to obtain full possession (and accordingly full possessory rights) to the monies paid over. There could be no suggestion that the proceeds were stolen and that by reason of this fact some lesser form of possession or possessory right arose.

[18]The authorities relied on by Feldman and the Police in this case are twofold, namely Buckley v. Gross (1863) 3B.& S.556 ("Buckley") and Field v. Sullivan [1923] VLR 70 ("Field"). In Buckley the issue related to the ownership of certain tallow. The tallow had been kept at warehouses which caught fire; it melted and flowed down the sewers into the river where part of it was collected by a man with no right to it; and he sold it to the claimant. The police stopped the claimant and took him before a magistrate. The magistrate discharged the claimant. Under section 29 of the Metropolitan Police Act 2&3 Vict. c.71 ("the 1839 Act") the magistrate had power, where the real owner was known, to make an order for the detention and subsequent delivery of goods "charged to be stolen or fraudulently obtained" to the rightful owner, and where the owner was unknown to order delivery to the receiver of the Metropolitan Police Force who was authorised, in the absence of a claim made by the real owner within 12 months, to sell them. Pursuant to these statutory provisions the magistrate made an order for the detention of the goods. The tallow became a nuisance and the police sold the tallow to the defendant before the 12 month period expired. The claimant then sued the defendant to recover it. Blackburn J at the trial directed a verdict for the defendant with leave to the claimant to move to enter judgment if the Court of Queen's Bench should be of the opinion that he could maintain his action. The court held that he could not.

[19]Cockburn CJ said:

"Under these circumstances it appears to me plain that, by virtue of the authority vested in him by the statute, an order was made by the justice, within the scope of his authority and jurisdiction, with respect to dealing with this tallow, and whether the police were or were not warranted in selling it within twelve months is immaterial. The plaintiff, who had nothing but bare naked possession (which would have been sufficient against a wrong doer) had it taken out of him by virtue of this enactment. As against the plaintiff, therefore, the defendant derives title, not from a wrong doer, but from a person selling under authority of the justice, whether rightly or not is of no consequence. I wholly disagree with the doctrine of the plaintiff's counsel, that if the policeman did anything ultra vires, that would revest the possession of this tallow in the plaintiff. He had no title beyond what mere possession gave, and, so soon as the goods were taken from him by force of law, there was a break in the chain of that possession."

[20]Crompton J said:

"This action must be founded on possession; here the possession was divested out of the plaintiff, and he cannot revert to a right of property to re-establish it. I agree with my Lord Chief Justice that, where possession is lawfully divested out of a man, and the property is ultimately converted by a person who does not claim through an original wrong doer, the party whose possession was so divested had no property at the time of the conversion. Here, in my mind, the plaintiff's possession was gone. The goods were properly taken from him ...."

[21]Blackburn J said:

"I do not wish to question the doctrine laid down in several cases, that possession of personal property is sufficient title against a wrong doer; nor that it is no answer to the plaintiff in such a case to say that there is a third person who could lawfully take the chattel from him; and I do not know that it makes any difference whether the goods had been feloniously taken or not. But, assuming that to be the law, the plaintiff has not brought himself within it. ... I draw the inference of fact that the justice was satisfied that this tallow had come from the warehouses, and I hold that, as matter of law, the police were bound to keep it for the true owner, because they had ascertained that there was a true owner, and who he was. Their possession was the possession of the true owner and not of the wrong doer, whose possession was terminated by their taking possession. It is therefore not necessary to consider whether the sale of the tallow to the defendants by the police was right or wrong. If wrong, the true owner may complain against them; if not, no one else can, but at all events, not the plaintiff, who was himself a wrong doer."

[22]All three judgments support the proposition that a thief obtains a good possessory title as against a wrong-doer against him, but that, if possession is lawfully divested from him and vested in another, his prior possession will not avail him to recover possession. Cockburn CJ held that the lawful divesting of the claimant and vesting in the defendant in that case was effected by the sale by the police to the defendant in exercise of the statutory power of sale vested in them by the order of the magistrate. Blackburn J decided that the police held the tallow for and on behalf of the warehousemen. Crompton J may have taken (and according to the report of this case in 32 LJQB 129 did take) the view that irrespective of any order of the magistrate the vesting by the police of possession in the defendant was sufficient to divest the claimant of possession. Later authorities to which I will refer attach critical importance to the existence of the magistrate's order in a contest such as existed between the claimant and defendant in Buckley. It should be said that the variations in the reports of the judgments in this case, (referred to in the judgment of Macfarlan J in Field at p.83) raise questions as to the reliability of various reports. I have selected the report in 36 B&S 556 because it is the report used and quoted by the Court of Appeal in the later case of Irving v. National Provincial Bank

[1962] 2 QB 73

("Irving") to which I will subsequently refer.

[23]The provisions of the 1839 Act fell for consideration again in the case of The Queen v. D'Eyncourt

(1888) 21 QBD 109

("D'Eyncourt"). The question arose whether the magistrate had jurisdiction under that Act to direct the delivery of goods which were seized by the police but were not the subject of any charge to the person (a Mary Ryan) from whom they were seized. In that case some £108 was seized as money obtained by false pretences, but the charges were confined to £8 alone. The magistrate directed that the balance of £100 be delivered up to her. The court quashed the decision holding that the Act conferred no jurisdiction to make any order save in respect of goods the subject of a charge. Wills J however added:

"As to £8 odd, the defendant appears to have admitted that the sums of which it consisted were property to be returned to the [identified] persons from whom she concedes that she had received them. As to the rest of the sum [of £100 odd] now in the hands of the police authorities, it seems clear, upon the facts stated to us, that it ought to be given to Mary Ryan: and it is clear that the possession she once had would give her the right to recover the money from anyone who could not show a better title. This would be so, even if the money had been obtained by false pretences from persons who with knowledge of the facts advisedly abstained from making any claim or if nothing could be shown as to whom was really entitled. The possessory right may perhaps go further. It is not necessary to express any opinion upon this point. We have no reason to suppose that the police authorities will not do what is right in the matter."

[24]The judgments in Buckley and D'Eyncourt were considered by the Supreme Court of Victoria in the case of Field. In that case the claimant claimed in return of goods seized by the police believing them to be stolen. The theft was not established and the claimant as the party in possession at the time of the seizure was held entitled to their return. Macfarlan J (with whom Cullen J agreed) said (at p.84) as follows:

"If A is in possession of goods, he is prima facie in lawful possession of them and prima facie has the right to that possession; in the absence of any evidence to the contrary, in any proceedings that possession is proof of ownership; but that possession may be divested out of him lawfully or unlawfully. If unlawfully, his right of possession remains. As against the person who unlawfully deprived him of possession (B) or those claiming through him, A's possession (even if wrongful) up to the time of seizure, is sufficient evidence to establish his right to possession: nor can those persons set up that the goods were A's possession, but were really the property of X, though, of course, if B took possession on behalf of and with the authority of X, who is shown to be the true owner, that might be set up to show that B's seizure was not unlawful. If the divesting is lawful, A's right of possession may be destroyed entirely or may be merely suspended or temporarily divested ... So where the law permits them to be seized or detained for a certain time or for a certain purpose or until a certain event, As possession is suspended or temporarily divested and the right of possession is vested in, or A's right to possession is displaced by, the right of possession in the person authorised to seize them or detain them for the period during which he is authorised. In other words, A's property and right to possession are made subject to the right of the police or other person seizing under the authority of the law to detain them during the period during which the detention is authorised; when that time expires, and no lawful order has been made for the disposition, his right to possession, if nothing more appears, again operates. I say 'if nothing more appears', for if it may appear by evidence that A never had a right of possession, as in [Buckley ], and that therefore there was no suspended right of possession to revive or again operate ..."

He went on to quote the passage from the judgment of Wills J in D'Eyncourt to the effect that the obligation even extended to monies obtained by false pretences and concluded:

"Whether the last quoted passage is consistent with the dicta in [Buckley] it is unnecessary to consider here, as plaintiff's possession has not been shown to be wrongful."

[25]In Betts v. Receiver of Metropolitan Police District and Carter Paterson & Co Ltd

[1932] 2 KB 595

("Betts") the police seized from the claimant certain cloth believing it to be stolen from Carter Paterson and delivered it to Carter Paterson, without any order under the Police (Property) Act 1897 Act ("the 1897 Act") which was in substantially the same terms as the 1839 Act. The claimant sued the receiver and Carter Paterson and du Parcq J held that, since the theft could not be established and the delivery had been made without any order under the Act, the claimant in right of his possession at the time of seizure (subject only in case of the receiver to a limitation defence) was entitled to succeed in conversion against both defendants.

[26]The judgment of Cockburn CJ in Buckley was referred to and approved and applied by the Court of Appeal in Irving. In that case the dispute arose as to certain goods seized by the police when in the possession of the claimant in which neither the claimant nor the defendant could establish that they were the true owners. Pursuant to the provisions of section 1 of the 1897 Act the court of summary jurisdiction directed that goods should be delivered to the defendant as the person who appeared to be the lawful owner. The claimant sued the defendant claiming ownership of the goods. The Court of Appeal rejected the claim. Holroyd Pearce LJ (at p.78) said:

"[The 1897] Act was passed in substitution for an earlier Act, the Metropolitan Police Court Act, 1839, which by section 29 made similar provisions. It provides practical machinery to deal with a practical situation. Although the Act does not, until the expiration of six months, affect the right of any person to take proceedings, it does alter the fact of possession. When an order has been made by a tribunal under the Act for delivery of property to a claimant, the Act cannot have intended the claimant to remain a bailee for the former possessor. The claimant has, by due process of law, after inquiry, had physical possession transferred to him. It is still open to anyone during the ensuing six months to claim the goods from him, provided that the claimant can establish his right to do so. Had the Act intended, it could have preserved the prior rights of possession in the former possessor. But it has not done so, and previous possession of goods now in the hands of another does not raise a presumption of present title in the previous owner, unless the person who has received them from him has done so as a wrongdoer or as agent of bailee of the previous owner.... This view of the matter is in accordance with the dictum of Cockburn CJ in [Buckley]."

After setting out the passage which I have quoted, he continued:

"Those observations of the Chief Justice make it clear, in my view, that under this Act of 1897, as under the earlier Act of 1839, the plaintiff can no longer rely on a presumption from his previous possession. Therefore the burden is on the plaintiff to prove that he is entitled to the notes or to damages for their conversion. If he cannot discharge that burden he fails in the action. The judge rightly held that his story on that matter was not to be believed, and that he failed to discharge the onus or proof. I entirely agree with the judgment of the judge."

[27]Willmer LJ said (at p.82) "I come to the same conclusion as the county court judge, namely that the effect of the magistrates' order was to shift the burden of proof."

[28]Davies LJ said (at p.82):

"I entirely agree. ... It seems to me plain on the wording of the statute that the effect of the magistrates' order made in this case was to vest the possession of these notes in the defendants, and of course, naturally and consequently, to divest the plaintiff of any possessory title that he might have had, not merely before the police seized the notes, but up to the time when the magistrates made the order. ... The only other thing I would say is this. I agree entirely with what my Lords have said about the dictum of Cockburn CJ in [Buckley]; and with regard to the other authority which was cited to us, namely Betts ... the facts of that case, so far as a relevant comparison can be made, are as different from the present case as they possibly can be. In Betts's case no order under the statute had been made, and it was for that reason, of course, that du Parcq J directed the jury and gave judgment as he did. It is, I think, implicit in the judgment in Betts's case that, if an order under the Police (Property) Act, 1897 had been made in that case, then the position would have been, not as it was there, but as, in the opinion of this court, it is in the present case."

[29]Donaldson LJ in Parker v. B.A. Board

[1982] QB 1004

at 1010 ("Parker") explained the balancing exercise required of the law in the situation under consideration and how the balance should be struck:

"[In Armory v. Delamirie (1722) 1 Stra 505] Pratt CJ ruled: 'That the finder of a jewel, though he does not by such finding acquire an absolute property or ownership, yet he has such a property as will enable him to keep it against all but the rightful owner, and consequently may maintain trover? ... The rule as stated by Pratt CJ must be right as a general proposition, for otherwise lost property would be subject to a free-for-all in which the physically weakest would go to the wall ...' One might have expected there to be decisions clearly qualifying the general rule where the circumstances are that someone finds a chattel and thereupon forms the dishonest intention of keeping it regardless of the rights of the true owner or of any one else. But that is not the case. There could be a number of reasons. Dishonest finders will often be trespassers. They are unlikely to risk invoking the law, particularly against another dishonest taker, and a subsequent honest taker is likely to have a superior title: see e.g. [Buckley]. However he probably has some title, albeit a frail one, because of the need to avoid a free for all. That seems to be the law in Ontario, Canada: see Bird v. Fort Frances [1949] 2 DLR 791 ["

Bird"]." In fact in the case of Bird the court expressly reserved the question whether such a title was obtained if the wrongful taker had a felonious intent and the taking was felonious: pp.798-9

[30]In the case of Webb, May LJ referred to the decision in Field:

" Possession As to entitlement to possession, there is an instructive analysis in the decision of the Supreme Court of Victoria in [Field]. The essence of an extended passage in the judgment of Macfarlan J., at pp. 84-87, is that if goods are in the possession of a person, on the face of it he has the right to that possession. His right to possession may be suspended or temporarily divested if the goods are seized by the police under lawful authority. If the police right to retain the goods comes to an end, the right to possession of the person from whom they were seized revives. In the absence of any evidence that anybody else is the true owner, once the police right of retention comes to an end, the person from whom they were compulsory taken is entitled to possession."

The reference cannot be treated as any form of approval of the reservations expressed by McFarlan J where possession has been unlawfully obtained.

[31]In my view on a review of the authorities, (save so far as legislation otherwise provides) as a matter of principle and authority possession means the same thing and is entitled to the same legal protection whether or not it has been obtained lawfully or by theft or by other unlawful means. It vests in the possessor a possessory title which is good against the world save as against anyone setting up or claiming under a better title. In the case of a theft the title is frail, and of likely limited value (see e.g. Rowland v. Divall

[1923] 2 KB 500

), but nonetheless remains a title to which the law affords protection. Support for this proposition can be found in the dicta of Wills J in D'Eyncourt and Donaldson LJ in Parker. The decision in Buckley and the dicta of all three judges that a wrong-doer is entitled to protection against a wrong-doer accords with the proposition; Blackburn J inclined to agree that possession was protected even if obtained by a felonious taking; and in view of the differences in the reports of the judgment of Crompton J (and the later decision on the significance of a magistrate's order in Betts) I do not think that his judgment takes the matter further. If Buckley is no obstacle in the way of acceptance of the proposition, then Field cannot be an obstacle either, for it merely leaves open the effect of Buckley. The frailty of the protection is reflected in the decisions in Buckley and Irving that, if the stolen property in the possession of the thief or a receiver is seized by the police and pursuant to statutory authority possession is transferred to someone else (but not otherwise), the transferee obtain the possessory title in defeasance of that of the thief or receiver. There are authorities (e.g. Bird) which reveal a natural moral disinclination (on occasion expressed in terms of public policy) to recognise the entitlement of a thief, receiver or other wrong-doer to the protection by the law of his possession, and one decision (namely Solomon) refusing such protection,. But it is clear from Webb that such a disinclination and public policy do not afford a sufficient ground to deprive a possessor of such recognition and protection. This conclusion is in accord with that long ago reached by the courts that even a thief is entitled to the protection of the criminal law against the theft from him of that which he has himself stolen: see e.g. Smith & Hogan, Criminal Law, 9th ed. p.522. I accordingly reject the first suggested exception or qualification. EXCEPTIONS TO THE OBLIGATION TO RESTORE

[32]The second suggested exception or qualification is that, even if a possessory title vests in the thief or receiver, there are exceptions to the rule requiring property to be restored to the person entitled to a possessory title and that those exceptions should extend to the restoration of property to a thief or receiver. Authority for the existence of exceptions is to be found in the judgment of du Parcq LJ in Bowmakers Ltd v. Barnet Instrument

[1945] KB 65

. After stating the general rule that a man's right to possession of an article will be enforced notwithstanding the fact that the article came into his possession by reason of an illegal contract, he went on to say at p.72: "It must not be supposed that the general rule which we have stated is subject to no exception. Indeed there is one obvious exception, namely that class of cases in which goods claimed are of such a kind that it is unlawful to deal in them at all, as for example, obscene books. No doubt there are others, but it is unnecessary, and would we think be unwise, to seek to name them all or to forecast the decisions which would be given in a variety of circumstances which may hereafter arise".

[33]What Pill LJ in Webb at p.564 described as echoes of that approach are to be found in the judgment of Roskill LJ in Malone at p.71 where he said that it would not be right, in circumstances where the claimant's initial possession of foreign currency forming part of the cash seized was unlawful, to grant him equitable relief in the form of a mandatory injunction for the return of the foreign currency. May LJ in Webb said that without deciding he doubted if the view of Roskill LJ could stand in the face of Tinsley. In this case it is necessary to decide this question.

[34]In my judgment, when considering the observations of du Parcq and Roskill LJJ, it is important to bear in mind that they were made at a time when the question was very much alive how far a court should protect a wrong-doer in asserting his rights of ownership. In particular there were powerful voices dating from the time of Lord Eldon to the effect that Equity should withhold its support. The House of Lords in Tinsley (as appears from the passage which I have quoted) held that law and equity must now speak with one voice in protecting that ownership based on possession. The exceptions to which du Parcq LJ refers must in my view be confined to cases where it would be unlawful for any reason for the Police to transfer the property to the claimant or it would be unlawful for the claimant to be in possession of it (e.g. when the goods consist of controlled drugs or a gun and the claimant does not have the necessary authorisation to have possession of them); but where no such exception applies, the court cannot withhold equitable relief in the form of a mandatory order for its delivery up to the person legally entitled to possession, whether or not he be a thief or a receiver of stolen property. I therefore also reject the second suggested exception or qualification. CONCLUSION

[35]I accordingly hold that the claimant was entitled to the return of the Car on the 5th January 1997 and that he is entitled to an order for its delivery up and for damages for the wrongful failure to deliver it up to him since the 5th January 1997 to be assessed by the District Judge. The claim to exemplary damages made in the claimant's Reply has no basis in law or fact, and accordingly the assessment is not to include any element of exemplary damages.

LORD JUSTICE KEENE:

[36]I agree.

LORD JUSTICE ROBERT WALKER:

[37]I also agree

ORDER

Appeal allowed; no order as to costs in the two hearings below; appellant to have three quarters of the costs of the two appeals; leave to appeal refused; detailed assessment of the applicant's costs for the purpose of the Legal Services Commission. (Order does not form part of approved Judgment)

Cited in 17 later judgments

and 8 more of the most senior