Cash in the (police) attic

Up and down the country, police property rooms and pounds contain treasure troves of valuable goods, from iPads and mobile phones to Mercedes and articulated lorries. Police powers of seizure are wide and it can be harder for an individual to recover their belongings than to retrieve a child from the proverbial crocodile. 

This author has personally dealt with police reluctance to return laptops and mobile phones seized from a client convicted of harassment, despite there being no evidence that four of the five devices were used in the commission of the offences. 

One factor which increases police lethargy is the fact that the cost of bringing proceedings nearly always outstrips the value of the items seized.

Section 22 of the Police and Criminal Evidence Act 1984 (PACE) enables police to retain any property for evidential ?or examination purposes. ?On conviction, section 143 ?of the Powers of Criminal Courts (Sentencing) Act 2000 allows the court to deprive an offender of any property used or intended ?to be used for the commission ?or facilitating of any offence. ?The goods need not be seized upon arrest (R v Martin Robert Hall [2014] EWCA Crim 2413) 

The broad language of section 143 means that offenders are routinely deprived of high-value items only peripherally linked ?to the commission of an ?offence (motor vehicles used ?to transport relatively small amounts of drugs are a case ?in point).

Yet, despite these broad powers to deprive, the higher courts have been persuaded to overturn deprivation orders for a variety of reasons.

Uncomplicated cases

It seems to be well established that ‘as a general principle deprivation orders should not be made except in cases which are simple and uncomplicated’ (R v Kieran Andrew Kearney [2011] EWCA Crim 826, per Mr Justice Spencer, citing R v Troth (1979) 1 Cr App R (S) 341, which was decided in relation to the predecessor of section 143). 

In Kearney, this approach led the court to return vehicles that were the subject of hire purchase arrangements because of the difficulties in assessing the financial impact on the offender.

While the ruling in Kearney is simple and practical (as is that in the subsequent case of R v Thomas (Christian) [2012] EWCA Crim 1159), it is interesting to consider how the principle might apply in a more emotionally charged case. Suppose the court deprived ?an offender of a laptop that he had used to download child pornography, but which ?actually belonged to his ?(entirely innocent) partner? ?As in Kearney, the title to the property vests in an innocent third party, and yet it is difficult to see the defence carrying the day easily in such a case.

In accordance with the above approach, if proceedings do not result in arrest or charges, the courts may interpret powers of seizure very narrowly indeed. ?In Chief Constable of Merseyside Police v Owens [2012] EWHC 1515 (Admin), the court rejected the police submission that section 22 of PACE should be construed widely, stating that ‘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’. 

The court ignored the police contention that the ?property would be used in ?the furtherance of crime on the basis that the lower court had made no finding to that effect.

Third-party rights

Unsurprisingly, the courts have also stoutly defended the rights of third parties who have had their property seized. In O’Leary International Ltd v Chief Constable of North Wales Police [2012] EWHC 1516 (Admin) (the leading authority on the use of the Police (Property) Act 1897), the court rejected the police argument that a company which owned seized lorries could only recover the vehicles by bringing a claim under section 144 of the Powers of Criminal Courts Act. The police argued that section 144 created an exclusive cause of action for those seeking to challenge a deprivation order. 

Importantly, on appeal to ?the Crown Court, the company was not permitted to make representations because it ?was not a party to the criminal proceedings. The court ?stated that it was ‘contrary to fundamental principles for an owner to be deprived of any ?of his rights in proceedings to which he was not a party’. ?The court also ruled that language should be imported into section 144 so as to require ?a court to consider the financial impact of deprivation on owners.

It is to be hoped that highlighting these cases might persuade the police to observe the relatively fair-minded approach of the courts.

Ben Henriques is a barrister practising from Sonn Macmillan Walker@SMW_Lawwww.criminalsolicitor.co.uk

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