Scopelight Ltd and Others v Chief Constable of Northumbria Police and Federation Against Copyright Theft

Court of Appeal rules on police powers to retain seized property pending private prosecution

By a judgment handed down on 5 November 2009 (Scopelight Ltd and Others v Chief Constable of Northumbria Police and Federation Against Copyright Theft (“FACT”) [2009] EWCA Civ 1156) the Court of Appeal (Ward, Wilson Laws and Leveson LJJ) allowed the appeal of the Defendants from the ruling of Sharp J [2009] EWHC 958 (QB), [2009] 2 Cr App R 365 on the trial of a preliminary issue concerning the correct construction of section 22 of the Police and Criminal Evidence Act 1984 (“PACE”), which provides (so far as material): “(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”. The case concerned property seized on the execution of a search warrant which was sought to be retained by the Northumbria Police for purposes of a private prosecution by FACT in circumstances where the CPS had decided not to prosecute while case law regarding an alleged breach of section 107(2A) of the Copyright Designs and Patents Act 1988 was established in another criminal prosecution.

Sharp J had ruled that the police were not entitled to retain property seized under PACE against the wishes of the person otherwise entitled to possession of it once a decision not to prosecute had been taken by the CPS, so that a private body could consider whether to bring a prosecution, or while that private prosecution was being brought, in the absence of a continuing independent justification for retention. The consequence of this ruling, if correct, would have been substantially to erode the role of private prosecutions in England and Wales where those prosecutions rely on evidence obtained by the police during a PACE authorised search and to limit the discretion which previously the police believed vested in them as to the use to which seized material might be put.

The Court of Appeal disagreed with Sharp J, and, in summary, (1) accepted the Defendants’ central argument that the Northumbria Police had lawfully seized the property for the purposes of a criminal investigation into the Claimants, that it was now being retained for use as evidence at a trial for an offence or for forensic examination or for investigation in connection with an offence, and that it was irrelevant that the prosecution was being undertaken by FACT rather than by the CPS or some other emanation of the state; (2) reasoned that a decision of the CPS not to prosecute was not determinative in relation to the question of what is necessary in all the circumstances (or in the public interest) in relation to retention of seized material, particularly if the police are satisfied that it is required for a bona fide investigation or prosecution of crime (albeit by some institution or body other than the CPS); (3) said that it is well recognised that, in addition to the CPS, many other bodies, public and private, investigate, institute and prosecute crime; and (4) held that if it is in the public interest that other bodies should be able to investigate and prosecute crime, it is difficult to see why such a prosecutor should not be able to use material seized by the police whether while investigating the offence to which the material is relevant or some other offence.

Richard Spearman QC, instructed by Richard Heron for the Northumbria Police and by Wiggin LLP for FACT, is leading counsel for the Defendants.

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