Wiltshire Constabulary v McDonagh [2008] EWHC 654 (QB)

[2008] EWHC 654 (QB)Case No CC/2007/APP/0739
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 8 th April 2008
Before
The Honourable Mr Justice Plender
Between
Chief Constable of Wiltshire ConstabularyAppellantAnn McDonaghRespondent
Geoffrey Weddell (instructed by solicitor, Wiltshire Constabulary) for AppellantKaren Shuman (instructed by Polpitiya & Co) for RespondentHearing Hearing dates: 28 February and 2 April 2008
Judgment
[1]Two related issues arise in this appeal. The first is whether the retention by the police of goods seized in pursuance of a warrant issued under section 8 of the Police and Criminal Evidence Act 1984 (“PACE”) is subject to section 22(1) of PACE, which provides that in part that anything that has been seized by a constable may be retained “so long as is necessary in all the circumstances”. The second is a question as to the effect of Article 8 of the European Convention on Human Rights (“ECHR”). The Facts[2]Since 2005 Wiltshire police have been investigating a group of individuals based predominantly at Chiseldon Firs in Wiltshire. One of those individuals is the Respondent, Mrs McDonagh. The individuals are suspected of stealing up to 250 caravans across England and Wales between late 2004 and October 2007, and dealing with the proceeds of their sale.[3]Among the property seized on 3rd October 2007 were 12 vehicles and 4 caravans, including Mrs McDonagh’s caravan. This was seized because the police, represented by the Chief Constable, believed that it was purchased by money gained by the sale of stolen goods. Restraining orders were placed on bank accounts containing a total of £143,000. Property not required by the police as evidence was returned to Mrs McDonagh but her caravan was not returned. The Chief Constable says that this is because it is required as evidence and because police enquiries are continuing. On 23rd October 2007 Mrs McDonagh’s solicitors wrote to the Chief Constable stating that Mrs McDonagh and her family required the return of her caravan as they were homeless. On 5th November 2007 those solicitors issued proceedings in the Brentford County Court claiming recovery of the caravan together with damages and interest.[4]By her skeleton argument prepared for the hearing of that application, counsel stated that the matter was urgent because Mrs McDonagh was due to give birth on 9th December 2007 and was a 23-year-old mother with 3 children aged 4, 3 and 2 years; and “it is difficult to see how [she] can find alternative accommodation.” The skeleton argument stated that at the time of the seizure of the caravan, Mrs McDonagh produced a receipt showing that her husband had purchased the caravan for £8000 in February 2007. The same skeleton argument relied on Article 8 of the ECHR.[5]At first instance HH Judge Edwards, sitting in Brentford County Court, held that the power under section 8(2) of PACE to retain items seized under a warrant is subject to section 22. Thus, in his judgment, items so seized should be returned. A stay of that order was activated when the Appellant filed and served a notice of appeal. On 20th December 2007 McKay J lifted the stay. The caravan was returned to Mrs McDonagh on 21st December 2007. She continues to live in it with her (now) 4 children at Chiseldon Firs, Wiltshire.[6]Against the judgment of HH Judge Edwards the Chief Constable now appeals. He contends that the Judge was wrong to hold that section 22(1) of PACE applied to items seized pursuant to section 8(2) thereof. The Terms of PACE[7]Section 8 of PACE reads as follows: Power of Justice of the Peace to authorise entry and search of premises.(1) If on an application made by a constable a justice of the peace is satisfied that there are reasonable grounds for believing— (a) that a serious arrestable offence has been committed; and (b) that there is material on premises specified in the application which is likely to be of substantial value (whether by itself or together with other material) to the investigation of the offence; and (c) that the material is likely to be relevant evidence; and (d) that it does not consist of or include items subject to legal privilege, excluded material or special procedure material; and (e) that any of the conditions specified in subsection (3) below applies, he may issue a warrant authorising a constable to enter and search the premises.(2) A constable may seize and retain anything for which a search has been authorised under subsection (1) above.(3) The conditions mentioned in subsection (1)(e) above are— (a) that it is not practicable to communicate with any person entitled to grant entry to the premises; (b) that it is practicable to communicate with a person entitled to grant entry to the premises but it is not practicable to communicate with any person entitled to grant access to the evidence; (c) that entry to the premises will not be granted unless a warrant is produced; (d) that the purpose of a search may be frustrated or seriously prejudiced unless a constable arriving at the premises can secure immediate entry to them.(4) In this Act “relevant evidence”, in relation to an offence, means anything that would be admissible in evidence at a trial for the offence.(5) The power to issue a warrant conferred by this section is in addition to any such power otherwise conferred.(6) This section applies in relation to a relevant offence (as defined in section 28D(4) of the Immigration Act 1971) as it applies in relation to a serious arrestable offence.[8]Section 19, entitled “General power of seizure etc” authorises a constable, when lawfully on premises, to seize anything which is there if he has reasonable grounds for believing that it is evidence in relation to an offence which he is investigating and that it is necessary to seize it in order to prevent the evidence being concealed, lost or destroyed, and to require the production of certain data. Subsection 19(4) provides:
“The constable may require any information which is contained in a computer and is accessible from the premises to be produced in a form in which it can be taken away and in which it is visible and legible if he has reasonable grounds for believing— (a) that— (i) it is evidence in relation to an offence which he is investigating or any other offence; or (ii) it has been obtained in consequence of the commission of an offence; and (b) that it is necessary to do so in order to prevent it being concealed, lost, tampered with or destroyed.” (a) that— (i) it is evidence in relation to an offence which he is investigating or any other offence; or (ii) it has been obtained in consequence of the commission of an offence; and (b) that it is necessary to do so in order to prevent it being concealed, lost, tampered with or destroyed.”
[9]Section 20 governs the extension of the power of seizure to computerised information. Subsection 20(1) provides:
“Every power of seizure which is conferred by an enactment to which this section applies on a constable who has entered premises in the exercise of a power conferred by an enactment shall be construed as including a power to require any information contained in a computer and accessible from the premises to be produced in a form in which it can be taken away and in which it is visible and legible.”
[10]Section 22 provides: “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. (6) This section also applies to anything retained by the police under section 28H(5) of theImmigration Act 1971. The Interpretation of PACE (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. (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,

The Interpretation of PACE

[11]In that context the words “anything which has been seized by a constable or taken away by a constable following a requirement made by virtue of sections 19 or 20 above” denote two separate categories of powers of retention:(i) the power to retain anything seized by a constable and(ii) the power to retain anything which has been taken away by a constable following a requirement made by virtue of sections 19 or 20. The draftsman found it necessary to draw this distinction since section 19(4) and section 20(1) authorise constables to take away material which has been the subject of a requirement made pursuant to those provisions. If this is right, the opening words of section 22(1) are entirely general. So far as is relevant to this case they provide that “anything which has been seized by a constable … may be retained as long as is necessary in the circumstances”. The generality of the language is emphasised by section 22(2) which states that “without prejudice to the generality of subsection (1) above” anything seized for the purposes of a criminal investigation may be retained for any of the three purposes enumerated thereafter and 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.[1]Nevertheless it is contended on behalf of the Chief Constable that the powers of retention created by sections 8(2) and 22(1) of PACE are separate powers; and that the requirement of necessity imposed by section 22(1) applies only to the powers of retention conferred by that section. The power of retention conferred by section 8(2), it is said, is not subject to the test of necessity since an officer who seized property under section 8 has already satisfied a court that what he is seizing is likely to be admissible evidence and of substantial value at a trial. (c) I accept, of course, that sections 8 and 22 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. It seems to me, however, that the submission made on behalf of the Chief Constable goes too far. It amounts either to the assertion that goods seized pursuant to section 8 may be retained although it is not shown that the retention is necessary in all the circumstances; or to the assertion that goods may be retained under section 8 only when it is shown that this is necessary in all the circumstances. In the course of oral argument, counsel for the Chief Constable denied making the first of those assertions; but the second of them is to my mind no more attractive. The Justice of the Peace, when deciding whether to issue a warrant under section 8(1), cannot be expected to weigh against the public interest in authorising the seizure and retention of goods the interest that a private individual may have in resisting interference with his home, or other rights protected under the ECHR, including the First Protocol thereto. At the time when he issues the warrant, the Justice of the Peace is unlikely to know what goods may be seized or what interest in those goods other individuals may have. The police themselves, when applying for the warrant, are unlikely to know these things. Moreover at the stage when a Justice of the Peace issues a warrant under section 8(2) the enquiries of the police are likely to be at an early stage. As those enquiries progress, more may be known about the circumstances of the case, and in particular about the impact of the seizure of property upon individuals formerly entitled to possession of it. As Park J observed in Gough v Chief Constable of the West Midlands Police, at paragraph 35, new “circumstances” within the meaning of section 22 may well emerge in the course of a criminal investigation, and as this happens further reasons why the police need to retain seized property may develop. Likewise, in the course of a criminal investigation, a change in circumstances may reduce or extinguish the need for the police to retain seized property. When there is a change of circumstances, or when more is known about circumstances which previously existed, it would be illogical to test the lawfulness of the continued retention of property by reference to the considerations which properly motivated a Justice when issuing a warrant. I do not disagree with the observation of Park J that the “circumstances” contemplated by section 22(1) are likely to be “circumstances … associated with the law enforcement functions of the police”. For my part, however, I see no reason to confine the relevant circumstances exclusively to those relating to police functions. In the case of the seizure of a caravan, alleged to be the home of a woman due to give birth to a child in 16 days, the effect of the seizure on the applicant is capable of constituting a relevant “circumstance” within the meaning of section 22(1) which authorises the retention of the caravan “in all the circumstances”. 13. Judicial authority is sparse in this area of the law; but counsel for the Chief Constable referred me to the unreported judgment of Dillon LJ in Flynn v Commissioner of Police (CA Civ., 6th October 1999). There is a factual similarity between that case and the present one, for in Flynn the property seized by the police was a vehicle (a Volvo car) and it was retained by the police upon reasonable suspicion that it had been obtained in consequence of the commission of an offence. Dillon LJ held that the police were not in breach of duty in failing to release the Volvo before the end of the trial. I am not persuaded, however, that the case of Flynn assists in the resolution of the case before me. In Flynn there was, as Dillon LJ put it “doubt, requiring a measure of legal analysis, as to who the lawful owner was”. That is not the case here. Dillon LJ said expressly that he would not wish to depart from the view expressed by 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”
. I find nothing in Flynn to support the submission that goods seized pursuant to a warrant may be retained by the police although it is not shown that such retention is necessary in all the circumstances.[12]Accordingly, if the matter were to be determined by reference to the interpretation of PACE alone, I would conclude, as did the trial judge, that 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, 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. 15. The European Convention on Human Rights[13]Article 8 of the ECHR provides:
“Everyone has the right to respect for his private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
[14]A caravan constituting a person’s ordinary residence is a “home” for the purposes of Article 8 of the ECHR. If authority is required for that proposition (which I doubt) it will be found in Chapman v United Kingdom, 12 HR Digest (2001) 25 para. 73. The seizure and taking away of such a caravan plainly constitutes interference with the right to respect for a person’s home. Interference with the right to respect for a person’s home is prohibited by Article 8 of the ECHR save where this is “necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” According to the settled case-law of the European Court of Human Rights, the notion of “necessity” implies that the interference corresponds to a “pressing social need” and, in particular, that it is proportionate to the legitimate aim pursued: Olson v Sweden, judgment of 24th March 1988, Series A No 130, para. 67. To determine whether such interference is lawful it is appropriate to ask whether it struck a fair balance between the right to respect for the home, on the one hand, and the countervailing public interest, including the prevention of disorder or crime, on the other. See McLeod v United Kingdom, judgment of 23rd September 1998, Reports of Judgments and Decisions, 1998-VIII, para. 53. While a certain margin of appreciation is left to the Contracting States, the exceptions provided for in paragraph 2 of Article 8 are interpreted narrowly and the need for the measures taken in a given case must be convincingly established: Funke v France, judgment of 25th February 1993, Series A No 256-A, para. 55. The reasons adduced to justify such measures must be relevant and sufficient and there must be adequate and effective safeguards against abuse: Buck v Germany, judgment of 28th April 1005, paras. 44-45. 18. Counsel for Mrs McDonagh submits that the balancing exercise required to secure conformity with Article 8 of the ECHR is inherent in the task entrusted to the police, and to the courts, in determining whether the retention of seized property is “necessary in all the circumstances”. Counsel for the Chief Constable submits that the same balancing exercise is inherent in section 8(2) of PACE. As he put it: “whether a particular seizure and retention is necessary is … a reference to whether it has been conducted in accordance with appropriate safeguards … The Claimant’s rights under section 8 of the 1984 Act are, and have been held to be, Convention compliant by reason of the substantial safeguards attendant upon the grant and execution of the warrant”.[15]The safeguards for which section 8 provides are designed, in particular, to ensure that any evidence that a constable may be authorised to seize and retain will be of substantial value to the investigation of a serious arrestable offence and will be relevant evidence which is neither subject to legal privilege nor excluded material nor special procedure material. By contrast with section 22 of PACE, section 8 of PACE does not impose on the Justice of the Peace the duty to assess the effects of the retention of property upon individuals who may have an interest in it so as to determine, by a balancing exercise, whether the retention of that property “is necessary in all the circumstances”. Nor is it realistic to infer such an obligation into the use of the permissive verb “may” in section 8. At the time when he considers whether to issue a warrant under that section, the Justice of the Peace does not know what items will, in fact, be seized, nor how their retention may affect the rights of individuals protected by the ECHR. I am of course conscious of the public interest in securing effective police investigation of serious arrestable offences; but I doubt that this interest would be advanced by accepting the submission made on behalf of the Chief Constable in this case. On the contrary, to hold that the ECHR applies equally to the exercise of the powers conferred by sections 8 and 22 of PACE would be to subject the issuance of warrants under section 8 to a limitation far in excess of that which is entailed by the express words of the statute. The difficulty of that approach is illustrated by the circumstances of the present case in which the Justice of the Peace who issued the warrant cannot be taken to have foreseen that among the caravans seized would be one forming the home of a woman in the advanced stages of pregnancy. 20. Appeal dismissed with costs, to be subjected to detailed assessment if not just agreed.

Cited in 1 later judgment