A review of recent judicial decisions concerning powers of search, seizure and retention.

Warrants

In October 2020, the Law Commission published its report on its project on Search Warrants.  Recommendation 14 is: that the duty of candour be codified in section 15 of PACE, since “failure to discharge the duty of candour is one of the most frequent grounds of challenge” [5.41]. The Law Commission considered that enshrining the duty in statute would assist in bringing about a necessary “cultural change in how applicants approach disclosure when applying for a search warrant”. The last twelve months have seen decisions which show the courts’ on-going concern with full and frank disclosure and candour.

In Al Hajjeh v Westminster Magistrates’ Court [2021] EWHC 2283 (Admin), the Divisional Court considered a challenge to the validity of a warrant to enter and search Christies’ auction house in London. The MPS was acting in response to a request from the Turkish Judicial Authority who wanted the police to locate and seize a Qu’ran “of considerable antiquity” [5], being signed by a celebrated calligrapher, which had been placed for auction. The Qu’ran was said to have been stolen. Submissions were made on behalf of the Claimant, who had put the Qu’ran up for sale at Christies, that because the suspects’ trial had concluded in Turkey, the true purpose behind the request from the Turkish authorities was to obtain the return of the Qu’ran because of its cultural and historical significance. This betrayed a lack of candour, went the argument. The High Court was satisfied that the Qu’ran would in fact be of substantial value to the Turkish criminal investigation, and the “dual object being pursued by the Turkish authorities” would not have led the District Judge to conclude that the application was being made for a collateral purpose: “whatever cultural significance the Qu’ran may have, the critical point is that it is in all likelihood a stolen Qu’ran” [49].

A similar issue came before the High Court of Northern Ireland in Hughes’ Application for Judicial Review [2021] NIQB 113. Considering case law both from Northern Ireland and England and Wales, the Court recognised that there is a divergence of view on the test to be applied to the inclusion of misinformation in the search warrant application or the omission of material information [35]. The Court preferred the R (Dulai) v Chelmsford Magistrates’ Court [2012] EWHC 1055 (Admin) line of authority that a search warrant will be quashed on judicial review where information which should have been given to the magistrates “might reasonably have led him to refuse to issue the warrant”; the High Court need not be satisfied that the information would have affected the decision [36].

In another case across the Sea, the High Court of Northern Ireland decided that the Petty Sessions (Ireland) Act 1851 did not allow for the execution of a search warrant in Northern Ireland in respect of an offence committed in England and Wales (Duffy v Commissioner of the City of London Police [2021] NIQB 49).

Seizure and Retention

2021 saw an increase in the use of stop and search, with Home Office statistics describing an increase of s1 searches of nearly 25% as compared to the previous year. This went hand in hand with the removal of the voluntary conditions on section 60 of the Criminal Justice and Public Order Act 1994, following the Government’s announcement of its Beating Crime Plan in the summer.

The courts too have shown a supportive approach to searches. The High Court of Ireland in DPP v Baxter [2021] IEHC 256 heard an appeal concerning the seizure of cash by customs officers at an airport. Although the matter relates to legislation which does not apply in Britain, the ratio of the case does read across neatly to our officers’ powers of search, as well as the exercise of police powers more generally.  The customs officer’s powers may only be exercised where the officer has reasonable grounds to suspect that the person may be engaged in activity in specified activities. The Court held that the test of reasonable grounds was a test of “the lowest level” and had to be interpreted in the context of dangers against which the customs officers were guarding:

[33] “…may be contrasted with the level of suspicion which an officer of customs must have in order to exercise more invasive statutory investigative powers under other provisions of the 2015 Act and under other legislation. It will not take much in the way of information to trigger a reasonable suspicion that a person may be engaged in a prohibited importation or intended exportation. Similarly, it will not take much to justify interaction with a traveller to secure safety at an airport or on an aeroplane.”

One issue that often arises for police officers is what to do with property which has been seized, where it is not desirable (for one reason or another) to return it to the person from whom it was seized but there is no other obvious route to forfeiture or destruction. Such frustrating and problematic issues arise in respect of hard drives containing risky but not unlawful material, antique firearms and stolen property generally where the victim cannot be identified. The principle that a thief has a possessory title to property which is good against everyone except the rightful owner (including against the police) was turned on its head, to the advantage of the state, in R v Seed [2021] EWCA Crim 1998. Giving the judgment of the Court, Dingemans LJ held that stolen jewellery which had been seized by the police, where the rightful owner could not be identified, would be returned to a suspected thief when the time came that the police could no longer retain it under section 22 PACE. That indicated that the thief retained a right of possession, albeit one which was suspended whilst the police exercised statutory powers. Accordingly, the stolen jewellery was available for confiscation in criminal proceedings.

Another route to preventing an unsuitable individual from having property returned to them was identified by Swift J in Commissioner of Police of the Metropolis v Meekey [2021] EWHC 34 (Admin), although it did not succeed in that case on the facts. In 2003, a large quantity of antique firearms was seized from a home address. The homeowner sought the return of the firearms, in writing, in 2009 after he served a prison sentence. The police refused, in writing, in 2010. The High Court held that where goods have been converted, and the limitation period has expired without a challenge, the owner’s title to the goods is removed, applying s3(2) Limitation Act 1980. On the right facts, and with the passage of time, this could provide a full defence to an application under the Police (Property Act) 1897.

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Authors

Aaron Moss

Call 2013

Related areas

Police Law

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