Court of Appeal

Published November 11, 2009

Scopelight Ltd and Others v Chief Constable of Northumbria Police and Another

Before Lord Justice Ward, Lord Justice Wilson and Lord Justice Leveson

Judgment November 5, 2009

The police could retain property they seized after the Crown Prosecution Service decided not to prosecute but a private prosecution was being contemplated or taking place.

The Court of Appeal so stated when allowing the appeal of the defendants, the Chief Constable of Northumbria and the Federation against Copyright Theft, from a decision on a preliminary issue made by Mrs Justice Sharp ([2009] 2 Cr App R 365) at the commencement of civil proceedings in which the claimants, Scopelight Ltd, its directors, Anton Benjamin Vickerman and Kelly-Ann Vickerman, owners of a website called SurfTheChannel.com, sought to recover property including computers, servers, memory sticks and mobile phones, seized by the police pursuant to a warrant in the investigation of contemplated criminal proceedings.

The judge ruled that, under section 22 of the Police and Criminal Evidence Act 1984, in the absence of continuing independent justification, the police were not entitled to retain property seized under that Act once a decision not to prosecute had been taken by the Crown Prosecution Service, so that a private body could consider whether to bring a prosecution, or while that private prosecution was being brought.

Mr Richard Spearman, QC, Mr Tom Weisselberg and Mr David Groome for the defendants; Mr Iain Purvis, QC and Mr Hugo Cuddigan for the claimants; Mr Aftab Jafferjee, QC, intervening by written submissions, for the RSPCA.

LORD JUSTICE LEVESON said that section 22 of the 1984 Act did not preclude the police from retaining seized property where the Crown Prosecution Service had notified the parties of its decision not to prosecute those from whom the property had been seized but a private prosecuting agency had made it clear to the police that advice would be sought on a private prosecution which had since been mounted.

The police then had power to determine whether it was necessary in all the circumstances that the property seized should be retained for forensic examination, or for investigation in connection with an offence, or for use as evidence at a trial for an offence.

Such a decision was for the police and the approach to the phrase in section 22 “anything which has been seized by a constable may be retained so long as is necessary in all the circumstances” required the police to consider each case on its own individual facts, at each stage in the process of investigation and prosecution.

If the CPS was prosecuting the case, whatever was required for forensic investigation or the prosecution would obviously be retained but, even then, consideration would have to be given to ensuring that no more than was necessary for the case, either to pursue it or to rebut a potential defence, was kept.

If a prosecution was not to be pursued by the CPS but some other public or private body wished to pursue a private prosecution, the relevant circumstances included, but were not limited to: the identity and motive of the potential prosecutor; the gravity of the allegation along with the reasoning behind the negative decision of the CPS and thus the extent to which, in this case, the public had a legitimate interest in the criminal prosecution; the police view of the significance of what had been retained; and any material fact concerning the proposed defendant.

All that fell to be considered so that a balanced decision could be reached upon whether retention was necessary in all the circumstances and such a decision would be capable of challenge on traditional public-law grounds.

Lord Justice Wilson and Lord Justice Ward agreed.

Solicitors: Mr Richard Heron, Ponteland and Wiggin LLP, Cheltenham; Lewis Nedas & Co, Camden Town; Blake Lapthorn, Eastleigh.

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