Merseyside Police v Owens [2012] EWHC 1515 (Admin)

[2012] EWHC 1515 (Admin)

Case No CO/11285/2011

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

DIVISIONAL COURT

Venue Manchester Civil Justice Centre

Date 31/05/2012

Before

PRESIDENT OF THE QUEEN'S BENCH DIVISION

(Sir John Thomas)

MR JUSTICE KING

Between

Chief Constable of Merseyside PoliceAppellant

Joseph Patrick OwensRespondent

Mr Peter Sigee (instructed by the Solicitor, Merseyside Police) for Appellant

for The Respondent did not appear and was not represented

Hearing Hearing date: 18 January 2012

Judgment

[1]This appeal by way of case stated from the Magistrates’ Court raises issues as to whether the police are entitled to retain the respondent’s property which they properly seized in the course of an investigation of a crime on the basis that the court should refuse to return it as the court would be, “indirectly assisting or encouraging the respondent in his criminal act”. The issues arise on an application under s.1 of the Police (Property) Act 1897 and one of them is related to the issues in another case before this court, differently constituted, O’Leary International v Chief Constable of North Wales [2012] EWHC Admin where judgment is handed down at the same time.

[2]It is necessary first to set out the facts.

The facts

[3]On 6 June 2008 the house at which the respondent lived with his mother was deliberately set on fire. His mother was alone at the time but escaped without injury.

[4]The incident was reported to the police who carried out detailed investigations, including a forensic investigation and house to house enquiries. As part of the investigation the police seized, acting under their powers under s.19(3) of the Police and Criminal Evidence Act 1984 (PACE), a video from the respondent’s CCTV system. The powers under s.19(3) are:

“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; and (b) that it is necessary to seize it in order to prevent the evidence being concealed, lost, altered or destroyed.”

[5]The video was reviewed by Detective Sergeant Deborah Weir who was in charge of the investigation. It showed the front door at which a petrol can had been left; a person could be seen whom it was believed had caused the fire, but the image was unclear and no identification could be obtained from it. Despite all efforts, including viewing the video several times and enhancing the images, the police were unable to identify the person who had set the fire. The investigation was closed.

[6]On 9 December 2008, the respondent applied to the Liverpool City Magistrates’ Court for an order under s.1(1) of the Police (Property) Act 1897 (the 1897 Act) for the return of the video tape. As amended that section provides:

“Where any property has come into the possession of the police in connexion 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.”

That application was resisted by the appellant, the Chief Constable of Merseyside, on the basis that he had the power to retain the video tape under s.22(1) of PACE. He contended that he had a duty to enforce the law and prevent crime. He reasonably believed that the return of the video tape to the respondent might lead to the respondent committing a serious criminal offence.

[7]The matter was heard by Deputy District Judge (Magistrates’ Courts) Andrew Meachin. The appellant provided a statement from Detective Sergeant Weir but she was not cross-examined. Unfortunately, and due to the Deputy District Judge’s failure to follow the Criminal Procedure Rules in respect of the contents of a case stated, the Deputy District Judge made no findings in relation to her evidence. However, in the light of the fact that her evidence was not challenged, it seemed to us that the proper course for us to adopt was to set out, as part of the findings the Deputy District Judge should have made, her evidence.

[8]Her evidence can be summarised as follows: i) The respondent was a member of the British National Party; he had shortly prior to the fire released a book exposing police informants and “wannabe gangsters” in Liverpool. ii) He told the police after the fire that he had received threats to petrol bomb his house. He identified to the police a possible suspect who had threatened him. He also said that as a result of the publication of the book there would be others who would have grievances against him. iii) Detective Sergeant Weir formed the view that the respondent was not providing proper co-operation to the police. Her statements set out details of his failure to co-operate. iv) Detective Sergeant Weir believed that if the respondent was to see the video tape he would seek revenge against a person who would either be the actual offender or a mistaken innocent third party; that person would either be killed or seriously injured. The reasons for her belief were as follows. When the respondent asked to see the video tape, he was aware there was no facial image of the offender but he thought he might be able to recognise the offender from his stance/gait. When he said that, he also told the police that he hoped the police would find out who did it before he did, as he did not want to go back to prison. The respondent had not co-operated with the police enquiry. The respondent had a violent past and had stood trial for murder. He could inflict serious and violent injury on any person that he might identify from the video tape.

The decision of the judge

[9]The Deputy District Judge concluded that the respondent was entitled to the return of the video tape. His reasons can be summarised as follows. The application was a straightforward application. The 1897 Act dealt with ownership and nothing else. In the absence of special circumstances the police force owed no duty of care to members of the public. He concluded:

“Whilst I understood to a degree the concerns of DS Weir I was not satisfied that those concerns were so significant as to create the special circumstances required to impose a “special” duty of care on the Appellant. I therefore ordered the Appellant to return the video to the Respondent.”

He stated three questions for the court:

“1. Does the Appellant have a duty to enforce the criminal law and/or prevent criminal activity beyond the parameters set by Hill v. Chief constable of West Yorkshire (1988) and Osman v. United Kingdom (1998)? 2. Should the Magistrates court have declined to consider the application under S1 of the Police Property Act 1897 when the Appellant had reasonable belief that if the video was returned to the Respondent it may lead to serious criminal harm being caused by the Respondent to a third party on the basis this was not a suitable issue to be determined by this procedure. 3. Was the Appellant’s reasonable belief that the return of the Video to the Respondent may lead the Respondent to commit serious criminal harm to a third party a sufficient reason for the Court to refuse to exercise its discretion under Section 1 of the Act to Order the appellant to return the Video to the Respondent?”

I therefore ordered the Appellant to return the video to the Respondent.”

[10]Although the case was stated on 25 March 2009, various applications asking the judge to consider further evidence and to make further findings resulted in very significant delay in the hearing of this case. None is in any way attributable to this court.

[11]At the hearing the respondent was neither present nor represented. We satisfied ourselves that he had been notified of the date of the hearing and had deliberately decided not to be present at the appeal.

The issues on the appeal

[12]The Chief Constable contended that the Deputy District Judge had not considered the correct issues. There were two questions: i) Was he entitled to retain the video tape under the statutory powers contained in s.22 of PACE? ii) Was he entitled to retain the video on the basis it would be contrary to public policy to allow the respondent to invoke the process of the court to seek the return of a video as the sole purpose for which the respondent wanted the video was unlawfully to inflict harm on another person? The Chief Constable was correct. These were the issues.

[13]It was accepted on behalf of the Chief Constable by Mr Peter Sigee, to whom we would like to pay a special tribute for the assistance which he gave the court, that it mattered not whether the claim was made under s.1 of the 1897 Act or was a civil claim brought in the County Court for delivery up of the video tape; the defence of the Chief Constable to its return applied in whichever court the claim was brought.

Issue 1: The power to retain under s.22

[14]S.22 provides as follows:

“(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 or 20 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, except as provided by subsection (4) below— (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. (3) Nothing seized on the ground that it may be used— (a) to cause physical injury to any person; (b) to damage property; (c) to interfere with evidence; or (d) to assist in escape from police detention or lawful custody, may be retained when the person from whom it was seized is no longer in police detention or the custody of a court or is in the custody of a court but has been released on bail. (4) Nothing may be retained for either of the purposes mentioned in subsection (2)(a) above if a photograph or copy would be sufficient for that purpose. (5) Nothing in this section affects any power of a court to make an order under section 1 of the Police (Property) Act 1897.”

[15]It was contended on behalf of the Chief Constable that the words in s.22(1) should be construed widely and that if, as could not be disputed, the video had been seized under s.19 of PACE, the power to retain it as long as necessary in all the circumstances was a power which extended to its retention even where the investigation was closed and the retention could not be justified by the purposes for which it had been seized. It could be retained provided it could be shown that its retention was necessary in all the circumstances.

[16]We cannot accept this argument. In the first place, it is clear that at common law as a matter of fundamental constitutional principle, the powers of the Executive to seize and retain goods were carefully controlled by the courts. Those powers were summarised by Lord Denning MR in Ghani v Jones

[1971] QB 693

in making clear that the privacy and possessions of an individual were not to be invaded except for the most compelling reasons. A court had to balance the interests of society in finding out wrongdoers and repressing crime and the interests of the freedom of the individual. In order to justify the taking of an article when a person had not been arrested or charged, three conditions had to be satisfied. Lord Denning set out at page 709 a further condition:

“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. If a copy will suffice, it should be made and the original returned. As soon as the case is over, or it is decided not to go on with it, the article should be returned.”

[17]Second, the terms of s.22(2), (3) and (4) make clear that specific circumstances to which s.22 is directed is retention for use as evidence at trial or for investigation in connection with an offence.

[18]Third, although both sub-sections are expressed to be without prejudice to the generality of the power in sub-section (1), there is nothing in s.22 which suggests that the power of retention can be for any purpose other than a purpose for which it was originally seized.

[19]Fourth, in Scopelight Ltd v Chief Constable of Northumbria

[2010] QB 438

the Court of Appeal, after referring to Marcel v Commissioner of Police of the Metropolis

[1992] Ch 225

where Sir Christopher Slade said, “documents seized by a public authority from a private citizen in exercise of a statutory power can properly be used only for those purposes for which the relevant legislation contemplated that they might be used” concluded at paragraph 30 that the phrase, “so long as necessary” meant necessary for carrying out the purposes for which the powers given by s.19 and 20 had been conferred.

[20]Thus as a matter of principle and authority, we do not consider that the Chief Constable had power to retain the video under s.22. Issue 2: Use of the powers of the court when they might assist or encourage a person in his criminal act

[21]It is clear that the power under s.1 of the 1897 Act is a discretionary power; the courts have given guidance on its use in a number of cases which are summarised in the judgment in O’Leary. It is therefore only necessary to refer to a few of the cases in this judgment.

[22]In Chief Constable of West Midlands Police v White (unreported, 13 March 1992) and Jackson v Chief Constable of West Midlands Police (unreported, 22 October 1993) the Divisional Court considered that a Magistrates’ Court would be fully entitled to decline to make an order under s.1 of the 1897 Act where it was clear that it would be contrary to public policy to do so. In the second of those cases, Jackson, Laws J (as he then was) referred to the fact that counsel on behalf of Mr Jackson had accepted that, if a claim was brought for the return of goods in the County Court or High Court, a defendant would be entitled also to raise a public policy defence.

[23]Subsequent to these decisions, the Court of Appeal in Webb v Chief Constable of Merseyside

[2000] QB 427

, held on a claim made by Mr Webb in a civil court for the return of money held by the police that it had to be returned even though the judge had found on a balance of probability that the money had been derived from crime. We shall refer to the decision further at paragraph 26 below. The decision was followed in Costello v Chief Constable of Derbyshire

[2001] 1 WLR 1437

and by Maurice Kay J in R v Ipswich Magistrates ex p Carter

[2002] EWHC 322

[24]The decision in Jackson was not considered in Webb but was in Gough v West Midlands Police

[2004] EWCA Civ 207

. The Court of Appeal in that case had to consider whether the Chief Constable was obliged to return, when sued in the civil courts, vehicle parts which the police suspected had been stolen. The police relied on s.22 of PACE but the court concluded that they were not entitled to do so on the facts of that case. In the course of their judgments, differing views were expressed about the obligations of the police to return goods. At paragraph 23 of his judgment, Park J considered the court was bound by Webb and in his opinion:

“… despite the use of the word ‘may’ in the Police (Property) Act and despite the feature that the Act refers to ownership rather than to possession, it would not be a proper exercise of discretion by the magistrates to refuse to order a return of property to the only known person who is admittedly entitled to possession of it at common law. At least that is so in a case where no-one else is entitled to the property and where there is no realistic prospect of anyone else putting forward such a claim.”

Carnwath LJ at paragraphs 42 and 43 of his judgment expressly reserved the questions as to whether in a claim under the 1897 Act a public policy defence of the type considered by Laws J in Jackson was still available in the light of the decision in Webb.

Lord Justice Potter said at paragraph 48:

“We are bound by the decisions of this court in Webb and Costello (in which the decision in Jackson does not appear to have been cited or considered). Nonetheless, I find it inherently rebarbative that, by means of civil proceedings in detinue based on the superior possessory title of the claimant over property held by the police following seizure in the course of investigating a suspected offence, a person may be held entitled to recover and continue to enjoy property even though the court may be satisfied that he is not the true owner and has acquired the property illegally, albeit the true owner is not identifiable. It seems to me that the terms of the 1897 Act are such that, in those circumstances, magistrates may well not be obliged to make an order in favour of such a claimant and in that respect the decision of Maurice Kay J in ex P. Carter may need revisiting should a case arise where the issue is a live one.”

[25]As is apparent from the judgment in O’Leary, the provisions of s.1 of the 1897 are designed to provide for a simple procedure to determine the disposal of property in the hands of the police; it is not a procedure to be used to determine claims of any complexity. As the provision is procedural, it cannot make a difference, where the rights to the return of the goods or the ownership of the goods are in issue, whether the claim for the return of property is brought in a civil court or under s.1. The only difference is that if the court makes an order under s.1, the rights of the owner are barred if a claim is not brought in six months. However in determining the rights to the property, the considerations are identical. Thus, if there is no defence to a civil action, the position is the same in a claim under s.1 of the 1897 Act.

[26]Mr Sigee on behalf of the Chief Constable relied upon observations of May LJ in Webb at pages 444-445 as entitling police to retain the video and contended that the observations apply whether the proceedings were brought under the 1897 Act or brought in a civil court. In Webb, May LJ, after considering the decision in Tinsley v Milligan

[1994] 1 AC 340

, referred to the decision of Hutchison J in Thackwell v Barclays Bank plc

[1986] 1 All ER 676

. The effect of that decision was that relief could be refused where it would be an affront to public conscience, if by giving a plaintiff a relief sought, a court was seen to be indirectly assisting or encouraging the plaintiff in his criminal act. May LJ concluded he would not rule out:

“… the possibility that circumstances might arise where the court would refuse relief where to grant it would be “indirectly assisting or encouraging the plaintiff in his criminal act.””

[27]Mr Sigee’s submission was that the court should therefore not order the return of the video to the respondent as the court would, by making such an order, be assisting or encouraging the respondent in the commission of a crime, namely an assault upon a person that the respondent thought had set fire to the house.

[28]Although we had the considerable assistance given by Mr Sigee, we did not have the benefit of adversarial argument. We can only say we see great force in that contention. We are therefore prepared to assume, whether the claim is brought in a civil court in an ordinary action or in a Magistrates’ Court under the 1897 Act, the court could refuse to grant relief and refuse to order the return if on the facts it could be established that the return of property would indirectly encourage or assist a person in his criminal act.

[29]However, the formidable difficulty that faces Mr Sigee is that there are no findings made by the District Judge which would enable this court to conclude not merely that the police believed that the respondent might use the tape to enable him to commit a criminal act but that the court itself could be satisfied that ordering the return would in fact do so. The distinction is an important one. It cannot be sufficient that the police reasonably suspect that the respondent might use the tape to commit a criminal act, for that would give the Executive power to retain property without legislative or other authority. It can only be, if the court itself is satisfied that the use of its process would in fact indirectly assist in or encourage a crime, that the court could refuse to allow its processes to be used to that end.

[30]The jurisdiction of the court under the case stated procedure is to determine questions of law. As earlier paragraphs of this judgment demonstrate, it is sometimes possible for a court, without remitting the case at considerable cost, to fill in findings of fact which should have been made by the judge or magistrates. Normally a court will do so by agreement. In this case it was possible for a court to do so because the evidence was not challenged. However, we do not see how a court can make findings which the judge was not asked to make and would no doubt be disputed by the respondent were he to be asked. Thus, it seems to us, that the appeal cannot succeed on this second basis as the necessary findings of fact to support it are not available.

Conclusion

[31]We therefore conclude that the appeal cannot succeed on the facts stated in the case stated for the reasons we have given. The video must therefore be returned.