Powers to seize property

In this edition, the powers of a constable to seize property under the Police and Criminal Evidence Act 1984 are discussed.

Whenever a constable is lawfully on premises he may, by virtue of Section 19, seize anything which on reasonable grounds he believes:

(i) To be evidence of the offence which he is investigating (s19(3)(a)).

(ii) To have been obtained in consequence of any offence, eg during a search for drugs, he can seize the fruits of a theft such as a television set bought out of stolen money (s19(2)(a)).

(iii) To be evidence of any other offence, eg on searching the premises of a person arrested for theft, he can seize prohibited drugs implicating a person who shares the premises (s19(3)(a)). However, the words `any other offence` relate only to domestic offences and not to offences allegedly committed outside the United Kingdom (R v Southwark Crown Court, ex p Sorsky Defries (1995).

(iv) Section 19 applies to evidence of any offence, serious or minor. Section 8(4) defines ‘relevant evidence’ as anything that would be admissible at a trial for an offence. The omission of the qualifying adjective ‘relevant’ in s19 suggests that ‘evidence’ is used in its popular sense of ‘facts in support of’ rather than its technical sense of ‘admissible evidence’.

There are, however, two limitations on the power of seizure. First, the police must believe that seizure is necessary lest the article be ‘concealed, lost, altered or destroyed’ in relation to (i) and (iii) (s19(3)(b)). As regards (ii), ‘damaged’ is added to the criteria (s19(2)(b)): the NI Order includes ‘damaged’ in (2) and (3)(b) suggesting that it was an unintended omission in s19(3)(b). Thus, if a photograph or copy of the article will suffice for the investigation (and copying facilities are available on the premises), that should be done (s21(5), Art 22(5), gives the police the power to photograph or copy).

Second, the constable cannot seize any articles which he has reasonable grounds to believe are subject to legal privilege (s19(6)). This limitation applies to all powers of seizure. An important consequence flows from the fact that legally privileged material is the only category of material exempt from seizure, which is that excluded or special procedure material which is not immune from seizure if the police are lawfully on premises, whether under search powers, or with consent to search or interview, or under a warrant which has not been obtained under the special procedure (Sch 1).

The complexities of ss9-14 and Sch 1 can thus be avoided if one of these other search powers is employed or the constable is otherwise lawfully on the premises and he comes across such material. If the occupier or holder of the information objects to the seizure, he may face a charge of obstructing a constable in the execution of his duty. For example, if the police are searching a social worker`s house under the authority of the Misuse of Drugs Act 1971 and come across evidence of a crime involving a client of the social worker, they can seize it, even though it may qualify as excluded material under s12 (Art 13).

Two further points may be noted.

(i) If the police discover evidence which is held by an innocent purchaser, the police must explain to the holder that he may face civil or criminal proceedings if he tries to part with it. Such proceedings may take the form of an action for damages or a criminal prosecution for an offence of handling, theft or obtaining by deception, depending on the circumstances of possession and disposal. However, the innocent purchaser for value may in some circumstances obtain a title to the goods which then cease to be stolen (s24(3) of the Theft Act 1968). He thus commits no offence if he disposes of those goods. Under a Sch 1 search, contempt proceedings can only follow deliberate disobedience of a court order for production.

(ii) Even if the police search premises unlawfully, for example without a proper consent, authorisation or in breach of