Taking The Police to Court...

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Police Property Act 1897

If you have been acquitted of an offence (or indeed convicted in some circumstances) and during the investigation the Police seized items for you then you may be entitled to the return of these items. This is a brief guide to how you go about getting your property back from the Police. The article deals with both seizures of property under the Police and Criminal Evidence Act and cash/money seized under the Proceeds of Crime Act 2002.


When the Police investigate criminal offences they are given wide ranging powers to seize property they believe is relevant to the investigation. This is principally done under S.19 Police and Criminal Evidence Act 1984 (PACE 84);


General power of seizure etc.

(1)The powers conferred by subsections (2), (3) and (4) below are exercisable by a constable who is lawfully on any premises.

(2)The constable may seize anything which is on the premises if he has reasonable grounds for believing—

(a)that it has been obtained in consequence of the commission of an offence; and

(b)that it is necessary to seize it in order to prevent it being concealed, lost, damaged, altered or destroyed.

(3)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.

In simple terms, if the Officer believes that something is relevant to the investigation then he will no doubt seize it. If you are charged with an offence a decision will then be made as to whether that item becomes a ‘Used’ exhibit or an ‘unused’ exhibit. If it is ‘used’ then it means the Prosecution will rely on it at trial in your case. If ‘unused’ then the Prosecution are not relying on it as evidence in the case.


Money/ Cash seizures

This is slightly more complicated. If during an investigation or search of your premises the Police find cash then in general, they can seize it under S.294 Proceeds of Crime Act 2002 (POCA). They then must, within 48 hours, commence proceedings in the Magistrates’ Court to allow them to keep the money pending the investigation for longer, up to three months. The Police can then make further applications up to a maximum of 2 years i.e. they can keep your cash/money for a maximum of two years without doing anything with it, provided the Police can still show they need it as part of the investigation or it is potentially recoverable. Recoverable simply means that it may form part of the proceeds of Crime and as such may be confiscated. If the Police cannot show under S.295 POCA then under S.297 the Magistrates’ Court can order them to return it to you.


As I mentioned above, this is complicated area of law. If the Police have seized cash from you as part of an investigation then first of all speak to the Solicitors and Barristers representing you. They will be able to guide you as to the chances of success of recovering the money and of bringing an action under S.297 POCA. If you do not have representation then you may want to speak to a Solicitor or Barrister who can assist you with this.


What can I do?

If you have had property seized by the police (other than money or cash) then there naturally comes a point when that property is no longer required under PACE 1984. This is where you need to be on the ball with regards to getting stuff back. Don’t think you will be able to recover all your property seized, things for example like drugs, knives, guns etc and anything associated are unlikely to be returned to you, they will be forfeited and destroyed. Let us take for example though Police seize some clothing or a bicycle from you and it does not relate to the offence and does not form part of the Prosecution case. You may be entitled to its return.

With Regards to POCA cases and forfeiture hearings, the rules and regulations are incredibly complicated, unless you do know what you are doing you are probably better off speaking to a Solicitor or Barrister regarding what you can do yourself.


Next Steps in relation to Police Property Act proceedings. (i.e. non cash seizures)

1. Identify what it is you want returned and whether it featured in the trial as used or unused material.

2. If it was unused material you can write to the Officer in the Case, the Officer in charge of the Prosecution, at his Police Station and ask for the return of the item.

3. If the Police are disputing your ownership of the property in question the you may need to prove it is yours. Easy if you have receipts but what if you don’t? you may wish to find photographs of you wearing the particular piece of clothing or riding the particular bicycle? Think outside the box, if you have been stopped and searched wearing that clothing there may be a record of the clothing you were wearing on the Stop and Search form.

4. If the Police still will not return your belongings then you may need to contact a Solicitor or a Barrister directly. They will give you initial advice as to whether or not you can, in law, recover your property and what steps thereafter to take to recover it. You may need to bring an action under the Police Property Act 1897 to ask the Magistrates’ Court to compel the Police to return your belongings.

Funding

There is no legal aid funding available for Police Property Act cases so if you want help or representation you will have to fund it yourself. That said, it may not cost very much. The best advice is to contact a Solicitor or a Barrister under the Direct access scheme. This is a scheme whereby you can instruct a Barrister without having to instruct a Solicitor first. A lot of Barristers are now registered under the scheme therefore one should be easy to find.

In relation to POCA cases there may be funding available if you pass the relevant merit and means tests proscribed by the Legal Services Commission. If you think you will need Public Funding to deal with you POCA case then you may want to contact a Solicitor who can help you arrange this.


The thrust of this article is to put you in the picture with regards to what the Police can do and what they cannot do with your property. It is your property and the Police can only interfere with your rights over it when lawfully allowed to do so. If you think something is not right with what the Police have done with your property then you need to do something about it


Police and Criminal Evidence Act 1984


Part I Powers to Stop and Search


1. Power of constable to stop and search persons, vehicles etc.


2. Provisions relating to search under section 1 and other powers.


3. Duty to make records concerning searches.


4. Road checks.


5. Reports of recorded searches and of road checks.


6. Statutory undertakers etc.


7. Part I—supplementary
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Part II Powers of Entry, Search and Seizure


Search warrants


8. Power of justice of the peace to authorise entry and search of premises.


9. Special provisions as to access.


10. Meaning of “items subject to legal privilege”.


11. Meaning of “excluded material”.


12. Meaning of “personal records”.


13. Meaning of “journalistic material”.


14. Meaning of “special procedure material”.


15. Search warrants—safeguards.


16. Execution of warrants.


Entry and search without search warrant


17. Entry for purpose of arrest etc.


18. Entry and search after arrest.


Seizure etc.


19. General power of seizure etc.


20. Extension of powers of seizure to computerised information.


21. Access and copying.


22. Retention.


Supplementary


23. Meaning of “premises” etc.
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Part III Arrest


24. Arrest without warrant: constables


24A.Arrest without warrant: other persons


25.(1) Where a constable has reasonable grounds for suspecting that...


26. Repeal of statutory powers of arrest without warrant or order.


27. Fingerprinting of certain offenders.


28. Information to be given on arrest.


29. Voluntary attendance at police station etc.


30. Arrest elsewhere than at police station.


30A. Release of a person arrested elsewhere than at police station


30B.... section 30A: notices


30C.Bail under section 30A: supplemental


30CA.Bail under section 30A: variation of conditions by police


30CB.Bail under section 30A: variation of conditions by court


30D.Failure to answer to bail under section 30A


31. Arrest for further offence.


32. Search upon arrest.


33. Execution of warrant not in possession of constable.
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Part IV Detention


Detention—conditions and duration


34. Limitations on police detention.


35. Designated police stations.


36. Custody officers at police stations.


37. Duties of custody officer before charge.


37A.Guidance


37B.Consultation with the Director of Public Prosecutions


37C.Breach of bail following release under section 37(7)(a)


37CA.Breach of bail following release under section 37(7)(c)


37D.Release on bail under section 37: further provision


38. Duties of custody officer after charge.


39. Responsibilities in relation to persons detained.


40. Review of police detention.


40A. Use of telephone for review under s. 40


41. Limits on period of detention without charge.


42. Authorisation of continued detention.


43. Warrants of further detention.


44. Extension of warrants of further detention.


45. Detention before charge—supplementary.


Use of live links


45ZA.Functions of extending detention: use of live links


45ZB.Warrants for further detention: use of live links


45A. Use of live links for other decisions about detention


Detention—miscellaneous


46. Detention after charge.


46ZA.Persons granted live link bail


46A. Power of arrest for failure to answer to police bail.


47. Bail after arrest.


47ZA.Limits on period of bail without charge


47ZB.Applicable bail period: initial limit


47ZC.Applicable bail period: conditions A to D in sections 47ZD to 47ZG


47ZD.Applicable bail period: extension of initial limit in standard cases


47ZE.Applicable bail period: extension of limit in designated cases


47ZF.Applicable bail period: first extension of limit by court


47ZG.Applicable bail period: subsequent extensions of limit by court


47ZH.Sections 47ZF and 47ZG: withholding sensitive information


47ZI.Sections 47ZF to 47ZH: proceedings in magistrates’ court


47ZJ.Sections 47ZF and 47ZG: late applications to magistrates’ court


47ZK.Rules


47ZL.Applicable bail period and bail return date: special case of release on bail under section 37(7)(a) or 37C(2)(b)


47ZM.Applicable bail period: special cases of release on bail under section 30A and periods in hospital


47A. Early administrative hearings conducted by justices’ clerks.


48. Remands to police detention.


49. Police detention to count towards custodial sentence.


50. Records of detention.


50A.Interpretation of references to pre-conditions for bail


51. Savings.


52. Detention—miscellaneous
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Part V Questioning and Treatment of Persons by Police


53. Abolition of certain powers of constables to search persons.


54. Searches of detained persons.


54A. Searches and examination to ascertain identity


54B.Searches of persons answering to live link bail


54C.Power to retain articles seized


55.Intimate searches


55A.X-rays and ultrasound scans


56. Right to have someone informed when arrested.


57. Additional rights of children and young persons.


58. Access to legal advice.


59. Questioning and Treatment of Persons by Police


60.Audio recording of interviews.


60A. Visual recording of interviews


60B.Notification of decision not to prosecute person interviewed


61.Finger-printing.


61A.Impressions of footwear


62. Intimate samples.


63.Other samples.


63A. Fingerprints and samples: supplementary provisions.


63AA.Inclusion of DNA profiles on National DNA Database


63AB.National DNA Database Strategy Board


63B. Testing for presence of Class A drugs.


63C. Testing for presence of Class A drugs: supplementary.


63D.Destruction of fingerprints and DNA profiles


63E.Retention of section 63D material pending investigation or proceedings


63F.Retention of section 63D material: persons arrested for or charged with a qualifying offence


63G.Retention of section 63D material by virtue of section 63F(5): consent of Commissioner


63H.Retention of section 63D material: persons arrested for or charged with a minor offence


63I.Retention of material: persons convicted of a recordable offence


63IA.Retention of material: persons convicted of an offence outside England and Wales after taking of section 63D material


63J.Retention of material: persons convicted of an offence outside England and Wales: other cases


63K.Retention of section 63D material: exception for persons under 18 convicted of first minor offence


63KA.Retention of section 63D material under section 63IA: exception for persons under 18 convicted of first minor offence outside England and Wales


63L.Retention of section 63D material: persons given a penalty notice


63M.Retention of section 63D material for purposes of national security


63N.Retention of section 63D material given voluntarily


63O.Retention of section 63D material with consent


63P.Retention of 63D material in connection with different offence


63Q.Destruction of copies of section 63D material


63R.Destruction of samples


63S.Destruction of impressions of footwear


63T.Use of retained material


63U.Exclusions for certain regimes


64. Destruction of fingerprints and samples.


64ZA.Destruction of samples


64ZB.Destruction of data given voluntarily


64ZC.Destruction of data relating to a person subject to a control order


64ZD.Destruction of data relating to persons not convicted


64ZE.Destruction of data relating to persons under 18 not convicted: recordable offences other than qualifying offences


64ZF.Destruction of data relating to persons under 16 not convicted: qualifying offences


64ZG.Destruction of data relating to persons aged 16 or 17 not convicted: qualifying offences


64ZH.Destruction of data relating to persons under 18 convicted of a recordable offence other than a qualifying offence


64ZI.Sections 64ZB to 64ZH: supplementary provision


64ZJ.Destruction of fingerprints taken under section 61(6A)


64ZK.Retention for purposes of national security


64ZL.Retention with consent


64ZM.Destruction of copies, and notification of destruction


64ZN.Use of retained material


64A. Photographing of suspects etc.


65. Part V—supplementary.


65A. “Qualifying offence”


65B.Persons convicted of an offence”
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Part VI Codes of Practice—General


66. Codes of practice.


67. Codes of practice—supplementary.
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Part VII Documentary Evidence in Criminal Proceedings


68.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .


69. Evidence from computer records.


70. Provisions supplementary to sections 68 and 69.


71. Microfilm copies.


72. Part VII—supplementary.
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Part VIII Evidence in Criminal Proceedings—General


Convictions and acquittals


73. Proof of convictions and acquittals.


74. Conviction as evidence of commission of offence.


75. Provisions supplementary to section 74.


Confessions


76. Confessions.


76A.Confessions may be given in evidence for co-accused


77. Confessions by mentally handicapped persons.


Miscellaneous


78. Exclusion of unfair evidence.


79. Time for taking accused’s evidence.


80.Competence and compellability of accused’s spouse or civil partner.


80A.Rule where accused’s spouse or civil partner not compellable.


81. Advance notice of expert evidence in Crown Court.


Part VIII—supplementary


82. Part VIII— interpretation.
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Part IX Police Complaints and Discipline


The Police Complaints Authority


83. Establishment of the Police Complaints Authority.


Handling of complaints etc.


84. Preliminary.


85. Investigation of complaints: standard procedure.


86. Investigation of complaints against senior officers.


87. References of complaints to Authority.


88. References of other matters to Authority.


89. Supervision of investigations by Authority.


90. Steps to be taken after investigation—general.


91. Steps to be taken where accused has admitted charges.


92. Powers of Authority to direct reference of reports etc. to Director of Public Prosecutions.


93. Powers of Authority as to disciplinary charges.


94. Disciplinary tribunals.


95. Information as to the manner of dealing with complaints etc.


96. Constabularies maintained by authorities other than police authorities.


97. Reports.


98. Restrictions on disclosure of information.


99. Regulations.


100. Regulations—supplementary.


Amendments of discipline provisions


101. Discipline regulations


102. Representation at disciplinary proceedings.


103. Disciplinary appeals.


General


104. Restrictions on subsequent proceedings.


105. Guidelines concerning discipline, complaints, etc.
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Part X Police—General


106. Arrangements for obtaining the views of the community on policing.


107. Police officers performing duties of higher rank.


108. Deputy chief constables.


109. Amendments relating to Police Federations.


110. Functions of special constables in Scotland.


111. Regulations for Police Forces and Police Cadets—Scotland.


112. Metropolitan police officers.
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Part XI Miscellaneous and Supplementary


113.Application of Act to Armed Forces.


114.Application of Act to Revenue and Customs


114ZA.Application of Act to Welsh Revenue Authority


114A. Power to apply Act to officers of the Secretary of State etc.


114B.Application of Act to labour abuse prevention officers


115. Expenses.


116. Meaning of “serious arrestable offence”.


117. Power of constable to use reasonable force.


118. General interpretation.


119. Amendments and repeals.


120. Extent.


121. Commencement.


122. Short title.


SCHEDULES
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SCHEDULE 1


Special Procedure
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SCHEDULE 1A


Specific offences which are arrestable offences
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SCHEDULE 2
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SCHEDULE 2A


Fingerprinting and samples: power to require attendance at police station
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SCHEDULE 3
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SCHEDULE 4
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SCHEDULE 5
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SCHEDULE 6


Minor and Consequential Amendments
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SCHEDULE 7


Repeals