Gough & Anor v West Midlands Police

This is an appeal by the claimants, Mr Gough and Mr Banyard, from a decision of HH Judge McKenna in Birmingham County Court on 20 May 2003. The case concerns vehicles and vehicle parts which the claimants contend have been unlawfully detained from them by the West Midlands police. The nominal defendant is the Chief Constable. The circumstances giving rise to the case occurred as long ago as mid-1997. The action was commenced by Particulars of Claim served in December 1997. The claimants claimed a declaration, delivery up of the goods, and damages. The case did not come to trial until May 2003. The judge held that the police were lawfully in possession of the goods, so that the claim for damages failed. He nevertheless ordered the police to deliver the goods to the claimants 14 days after the judgment. The appeal to this court is solely on the issue of liability, it being accepted by the claimants that, if the appeal succeeds, the issue of quantum of damages will have to be remitted to the County Court. There is no cross appeal by the police against the order requiring them to deliver up the goods.

In the broadest of terms the case of the claimants is that, although the police were lawfully entitled to take possession of the goods, their entitlement to retain possession has expired long ago. The police, on the other hand, contend that their lawful entitlement to retain possession of the goods continued until the trial. The judge agreed with the police. However, I agree with the claimants. In my opinion the judge was wrong, and I would allow the appeal.

The relevant facts are as follows.

In 1997 the claimants, who were in their late twenties at the time, occupied or otherwise had the use of a unit at a business estate in Halesowen. They used it to break up vehicles, typically (at least according to their account) vehicles which had been involved in accidents and which were beyond repair. They extracted from the vehicles parts which were still usable and resold them. On at least one occasion they created a working BMW car from one or more wrecks. Activities of that sort were perfectly capable of being carried on lawfully, and the claimants maintain that their activities were lawful in all respects. However, the police suspected that the vehicles, or some of the vehicles, which the claimants broke up were stolen. The rights or wrongs of that suspicion are not known and are not relevant to the present case. What is relevant is that the suspicion, whether well-founded or not, was genuinely held.

On 28 May 1997 the police obtained a warrant authorising them to search the unit and to seize goods which they believed to be stolen.

The police executed the warrant on the next day, 29 May 1997. Several police officers went to the unit and removed a number of items which they suspected of being stolen property.

On the same day the police went to the home of the mother of the first claimant, Mr Gough, and took away a car which Mr Gough kept in the garage there. I may be wrong, but I think that this was the car, made from cannibalised parts of other vehicles, which I mentioned in subparagraph (i) above. The police obviously suspected that the other vehicles had been stolen. There was no warrant authorising the police to seize the car, but it seems obvious that the police would have obtained one if Mr Gough and his mother had refused to allow them to remove it.

Still on the same day the police arrested the two claimants and another man who was at the unit. The three arrested men were held at a police station for a few hours, but then were released on police bail.

Time passed but no charges were ever brought against either claimant. The bundle contains a letter dated 14 August 1997 to the police from solicitors then acting for the claimants stating that their clients had been informed that there would be no criminal proceedings in relation to any of the property seized. At the trial of this civil action Detective Constable McWalter, an officer who was involved in the investigation, gave evidence that the police could not ascertain that any of the parts seized ‘related to any particular stolen report’. The claimants no doubt say that that was because they were not stolen. The police, as I understand it, say that they still suspected that the goods, or some of them, were stolen but they could not prove it. Either way, it is common ground that by the later part of 1997 there was no continuing intention to bring criminal proceedings.

When it was decided that no charges would be brought the police returned some of the goods to the claimants, but retained the others. Forensic examinations had shown that some of the parts still bore serial numbers or other identification markings, but that on others the markings had been removed. The police returned the items which still bore their markings but kept the ones from which the markings had been removed. This case is about the goods which the police did not return.

The police say that the removal of the markings gave substantial grounds for suspecting that the items concerned had been stolen. It could be so, but I ought to record that Mr Gough, in his witness statement for the trial in this case, said that when he and Mr Banyard purchased insurance wrecks from some auctioneers the numbers and other identification marks had already been removed by the auctioneers. This was said to have been because of a contractual obligation of the auctioneers to their insurers. The claimants produced a letter dated 5 March 1998 from Universal Salvage plc which appeared to support Mr Gough’s evidence on this point. They also produced receipts which they said identified where all of the items seized by the police had been purchased. The police witness said that many of the receipts were ‘nondescript’.

There is expert evidence that in 1997 the value of the goods which the police retained was £21,665. By November 2002 (when the police were still holding them) their value was only £2,830. Given the nature of the goods (second hand car parts removed from used and wrecked cars in 1997), it is not hard to understand how such a fall in value can have come about.

In Mr Gough’s witness statement he writes: ‘Mr Banyard and I made several attempts to contact DC Postins concerning the property which was retained and is still retained by the police. Eventually we were told that the police did not intend to return our property to us.’

On the same aspect, a sentence in the letter of 14 August 1997 from solicitors then acting for the claimants (to which I referred in sub-paragraph (vi) above) read as follows: ‘Unless all the outstanding property seized on the 29 May is returned to our clients … we will have no option but to institute proceedings for the recovery of this property’. The letter was acknowledged by Mr Dawson of the police’s legal services department. On 7 October 1997 he replied substantively. He said that he intended to proceed under the Police (Property) Act 1897. He asked whether the solicitors were instructed to accept service of proceedings. I will describe the Police (Property) Act 1897 later, but I mention here that proceedings under it take place in a Magistrates Court.

The correspondence became a little untidy at that stage, partly because the claimant had appointed new solicitors, and partly because a letter which the new solicitors had already written on 22 September 1997, threatening County Court proceedings within 28 days, did not find its way to Mr Dawson’s desk until some time after he had written his letter of 7 October to the previous solicitors. I will not follow through the correspondence in detail. It is sufficient to record the outcome. The claimants commenced the present action in the County Court, and in consequence of that the police did not proceed under the Police (Property) Act 1897. With reference to that Mr Dawson’s witness statement says: ‘Having dealt with several thousand Police (Property) Act matters I was aware that once County Court proceedings had been issued, no Magistrates Court Clerk would then allow their Court to determine the ownership of property and as such I was practically stopped from issuing the said proceedings’.

The Particulars of Claim in this case appear to have been settled by counsel in October 1997 but to have been served on an unspecified date in December 1997. They aver that the claimants owned and were entitled to possession of the various items of property, and that the defendant (nominally the Chief Constable) refused to return them. The particulars claimed a declaration, delivery up, damages and interest.

The defence was lodged on 20 January 1998. The important paragraph in it is, in my view, paragraph 7: ‘The said property is lawfully being retained in accordance with the provisions of section 22 of the Police and Criminal Evidence Act 1984 in that the defendants believe that property has been obtained following the commission/consequences of a criminal offence and so as to ascertain the lawful ownership of the same’. I will give details later of s.22 of the Police and Criminal Evidence Act (referred to hereinafter as PACE).

As far as I know that was the end of the pleadings, in January 1998. For reasons which I do not know and which Mr De Mello (counsel for the claimants) was not able to explain, the case appears to have gone to sleep, until late 2002. It eventually came to be tried by HH Judge McKenna on 19 May 2003.

In a short extempore judgment the judge said that the determination of the issue between the parties turned on whether or not ‘as a matter of fact’, and, if so, when, the police’s right to retain the seized items came to an end. I do not know why the judge described that as a matter of fact, but that is what he said. He described s.22 of PACE. He then recorded that the police’s initial approach had been to make the seized goods the subject of an application under the Police (Property) Act 1897. He concluded with the following three paragraphs, numbered 5,6 and 7 in the transcript of the judgment.

Then, after discussion with counsel, the judge made an order of which the two important paragraphs were paragraphs 1 and 2, as follows:

The order said that the claimants were to arrange for collection of the goods on 2 June 2003, and that, if they did not, the Chief Constable was at liberty to arrange for the items to be destroyed. We do not know whether the claimants did in fact collect the goods. Having regard to their low value by the time of the trial I would not be surprised if the claimants allowed them to be destroyed. Obviously what the claimants really wanted from the proceedings was damages reflecting the large fall in the value of the goods while they were in the possession of the police.

The judge was asked for, but refused to give, permission to appeal. Permission was given by Kay LJ on 31 July 2003.

The three statutes which are relevant are the Torts (Interference with Goods) Act 1977, the Police (Property) Act 1897 and PACE.

The Torts (Interference with Goods) Act 1977 is not specifically mentioned in the Particulars of Claim, but the claim is based on it. The Act abolished the old common law tort of detinue (s.2(1)), but section 3 provides that, in proceedings for wrongful interference against a person who is in possession or control of goods, relief may be given in various forms, one of which is an order for delivery of the goods and for payment of any consequential damages (s.3(2)(a)). There is no dispute as to the meaning of the Act. The issue in this case is whether or not the police, who it is accepted were initially in lawful possession of the goods, had come to be in wrongful possession of them by the time of the trial.

The long title of the Police (Property) Act 1897 is : ‘An Act to make further provision with respect to the Disposal of Property in the Possession of the Police’. The section which is in point in this case is section 1. There are two subsections. The one principally relevant is subsection (1), but I should quote subsection (2) as well. The whole section is as follows:

I move to PACE. The section directly in point is s.22, which is concerned with the circumstances in which the police may retain property which they have seized, but I ought also to quote the relevant parts of s.19, which identifies the conditions upon which they may seize property in the first place. The two sections, so far as relevant for this case, are as follows.

Both sections contain other subsections in addition to those which I have set out. The other subsections are not relevant in the present case.

I begin by referring to two important decisions of the Court of Appeal. In Webb v Chief Constable of Merseyside Police [2000] QB 427, the police suspected the claimant, Mr Webb, of drug trafficking. They seized £36,000 from him on suspicion that it was proceeds of that criminal activity. The seizure, when it was made, was lawful under statutory powers. The police arrested Mr Webb, but in the event he was not prosecuted. It was accepted by the police that their statutory power to seize the money had been exhausted and could no longer justify the retention of it. They nevertheless refused to return it to him. He brought an ordinary civil action to recover it. The police sought to defend the action in reliance on public policy grounds which were presumably said to operate as part of the common law. Their point was, in essence, that, although they had not prosecuted Mr Webb, they still suspected, and reasonably suspected, that the money was the proceeds of drug trafficking. The judge at first instance found that on the balance of probabilities the money was indeed the proceeds of drug trafficking. He decided for the police, but on appeal by Mr Webb the Court of Appeal reversed the decision. The genuine suspicions which the police had that the money derived from crime – indeed, their well-founded suspicions according to the finding of the trial judge – did not provide them with a defence. The court held that the £36,000 had to be returned.

In Costello v Chief Constable of Derbyshire Constabulary [2001] 1 WLR 1437, [2001] EWCA Civ 381, an essentially similar point arose, and there was an essentially similar result. The police seized a car from Mr Costello, believing that it was stolen. The seizure was lawful at the time, by virtue of s.19 of PACE. The police never brought any criminal proceedings against Mr Costello, but they refused to return the car to him, arguing that it had been stolen and that that justified them in retaining it. Mr Costello sued in the County Court for recovery of the car. At first instance the claim failed, but the decision was reversed on appeal. Lightman J, who delivered the principal judgment, observed that ss.19 and 22 of PACE vested in the police ‘no title to the property seized but only a temporary right to retain property for the specified statutory purposes’. Once those purposes were exhausted (as it was common ground they had been) Mr Costello, whether he was the true owner of the car or not, had a right of possession of it which was superior to any right of possession on the part of the police.

The consequences of those two cases for the present appeal are, as it seems to me: first, that if the police are holding property which they have seized from some other person who was previously in possession of it, they can only resist a civil claim by the former possessor for its return if they can identify a statutory power to retain it; second, that if the original seizure was authorised by a statutory power, it does not necessarily follow that indefinite retention of the property continues to be authorised by the statutory power; third, that a civil claim by the former possessor, brought under the Torts (Interference with Goods) Act 1977, is determined by common law principles deriving from the law of detinue and conversion, and thus rests on the right of possession; fourth, that, if the police do not have a continuing statutory power or right to retain the property, the former possessor’s right of possession is superior to theirs; and fifth, that it is no defence for the police to argue that the former possessor, the claimant in the civil action, is not the true owner of the property. On the fifth point it may be different if the police can establish who the true owner is (I say nothing about a case where that is so), but otherwise the fifth proposition stands good.

The effect of the foregoing paragraph for this case is that the police can successfully defend the claimants’ claim (based as it is on an admitted possessory title – see paragraph 7 of Judge McKenna’s judgment, quoted in paragraph 4 above) only if they can invoke a statutory provision which gave them a right or power to retain the goods notwithstanding the claimants’ request for them to be returned.

The Webb and Costello cases were not concerned with the Police (Property) Act 1897. There have been some cases which did consider points arising under that Act, and I will describe them as briefly as I can.

Raymond Lyons & Co v Metropolitan Police Commissioner [1975] 1 QB s.32(1)(b) was a case where a suspected thief had left a valuable ring with the claimant jewellers. They reported the matter to the police and handed the ring to them. The suspected thief never reappeared, and no-one claiming to be the true owner emerged. The police did not return the ring to the jewellers, who brought an application in the Magistrates Court under the Police (Property) Act 1897. The magistrates declined to order the police to return the ring, on the ground that the jewellers were not the owners of it. The decision was upheld on appeal to the Queen’s Bench Division. The case brings out the feature that the 1897 Act focuses on ownership of the property, whereas a claim in conversion or under the Torts (Interference with Goods) Act 1977 is concerned with the right of possession. One reason why the case could be of some significance in the present case is because of observations by Lord Widgery CJ that the procedure under the 1897 Act is suitable only for ‘straightforward, simple cases where there is no difficulty of law and the matter is clear’. He added: ‘I would discourage them from attempting to use the procedure of the Act of 1897 in cases which involve a real issue of law or any real difficulty in determining whether a particular person is or is not the owner’. The word ‘them’ in that passage seems to refer to the justices, but I suspect that Lord Widgery had in mind the parties to a case, whether the police or someone claiming that property held by the police should be delivered to him.

Before moving to other cases it is worth making two comments. First, I assume that in practice the regular use of the 1897 Act is for the straightforward and simple cases which Lord Widgery had in mind, and that it is rare for the ways in which the magistrates deal with applications under the Act to give rise to appeals. In an earlier paragraph I quoted from the evidence of Mr Dawson of the West Midlands Police’s Legal Services Department. He referred to having dealt with ‘several thousand Police (Property) Act matters’, from which it is, I think, obvious that the police must use the Act frequently to deal with matters where they find themselves in possession of items of property which they do not want to keep but do not know whether they can legitimately destroy them or what else they can do with them. In such cases the police will understandably wish to have the protection of a court order before destroying or otherwise disposing of the goods. Second, although the magistrates’ powers do extend to making orders which can affect possessory or ownership rights, I do not think that it is a main purpose of the Act that it should be used in order definitively to resolve issues of that nature. It is noteworthy that s.1(2) provides that an order under s.1(1) does not affect the right of any person to take (within six months) legal proceedings against any person in possession of property delivered by virtue of the s1(1) order. Such proceedings would, I take it, be brought in the civil courts, not in the Magistrates Court which made the order.

Next I mention two cases which arose under the Police (Property) Act and came to the High Court, but before the decisions of the Court of Appeal in Webb and Costello In Chief Constable of West Midlands Police v White (unreported, 13 March 1992) the respondent, Mr White, had been convicted of licensing offences. The police had seized a sum of money which they alleged was the proceeds of selling unlicensed liquor. When Mr White was convicted the magistrates made no order about what to do with the money, so the police brought the issue before a Magistrates Court under the Police (Property) Act. The magistrate found that the money was the proceeds of illegal trading, but nevertheless held that Mr White was the owner of it. The police appealed to the Divisional Court, but the appeal was dismissed. Tudor Evans J, with whom Beldam LJ concurred, summarised the position as being that, although the contracts for sale of unlicensed liquor were void and unenforceable, Mr White did become the owner of the money; it was impossible to identify any other persons as being the true owners of it; and the magistrate was not constrained on public policy grounds from making an order under the Act in favour of Mr White. The result is in line with the later decisions in Webb and Costello, but Tudor Evans J did say that it could ‘not be doubted that a Magistrates Court would be fully entitled to decline to make an order under the Police (Property) Act where it is clear that it would be contrary to public policy to do so’. In the context the type of order which the learned judge had in mind as one which the Magistrates Court would be entitled not to make was one requiring money or property to be returned to the person from whom the police had seized it.

Jackson v Chief Constable of West Midlands Police (unreported, 22 October 1993) is a case where the Magistrates Court did make such an order, and their decision was upheld on appeal. The police had arrested Mr Jackson in connection with a drugs offence, of which he was later convicted. The police had also seized some money which was in his possession at the time of the arrest. The opportunity of dealing with the money at the same time as the trial was missed, and at one point after the trial a judge suggested that the police should apply to the Magistrates Court under the 1897 Act. The police made no such application, but Mr Jackson did. The magistrate accepted that Mr Jackson was the owner of the money, but, because he (the magistrate) considered that it was the proceeds of the sale of controlled drugs, he declined to direct that the money be returned. In the Case Stated he said that for the money to be returned to Mr Jackson would have been ‘repugnant and contrary to public policy’. Laws J dismissed Mr Jackson’s appeal. He referred to the passage from the judgment of Tudor Evans J which I quoted at the end of the previous paragraph, having previously recorded that counsel for Mr Jackson had accepted ‘that if an applicant issues process in the Common Law Court on facts such as those of the present case, the defendant would be entitled to raise a public policy defence and the court would be entitled to give effect to it’. That proposition which counsel for Mr Jackson had accepted would not, I believe, be accepted any more after the decisions of the Court of Appeal in Webb and Costello. It is perhaps unfortunate that the decision in Jackson appears not to have been cited to the Court of Appeal in either of those cases.

The last case under the Police (Property) Act 1897 which I mention came before Maurice Kay J in R v Ipswich Magistrates Court ex p. Carter [2002] EWHC 332. Mr Carter’s wife had paid money to a man on the basis that it was payment for the man agreeing to murder someone. In fact the man was an undercover police agent. In time Mrs Carter was convicted of soliciting to commit murder, but Mr Carter was acquitted. She disclaimed all interest in the money in favour of her husband, and he applied to the Magistrates Court under the Police (Property) Act, seeking an order that the money be returned to him. The magistrates declined to make the order. They held that they had a discretion and declined to exercise it in favour of Mr Carter, given that ‘the money had been intended to bring about the death of a human being’. Mr Carter applied for judicial review of the decision. Maurice Kay J referred to the decision of the Court of Appeal in the Webb case, and held that in view of it the magistrates had not been entitled to take account of the matter which had conditioned their decision. He quashed their decision and ordered that the police must pay the money out to Mr Carter.

The decision of Laws J in Jackson v Chief Constable of West Midlands Police (supra) was not cited to Maurice Kay J, but I am respectfully of the opinion that the judge’s decision was correct, and that he would still have reached the same decision if the Jackson case had been cited. Laws J’s decision was predicated on an assumption that, in an ordinary civil action for recovery of the money, the court could, on public policy grounds, have declined to order it to be paid to the only person with a right to it. So the magistrates could proceed on the same basis in exercise of their jurisdiction under the Police (Property) Act. The assumption can no longer stand after Webb and Costello, and in my opinion, despite the use of the word ‘may’ in the Police (Property) Act and despite the feature that the Act refers to ownership rather than to possession, it would not be a proper exercise of discretion by the magistrates to refuse to order a return of property to the only known person who is admittedly entitled to possession of it at common law. At least that is so in a case where no-one else claims to be the owner of the property and where there is no realistic possibility of anyone else putting forward such a claim. (I ought to mention here that Potter and Carnwath LJJ, whose judgments I have read in draft, do not necessarily agree with my opinion that the decision of Maurice Kay J was correct.)

With that review of the statutes and the authorities I turn to the issues which require to be decided in this case.

I begin by considering the judgment in the court below. I suspect that the judge was under considerable pressure on the day of the trial. He had to deliver a short extempore judgment, and he did not have – or at least did not take – the opportunity which we have had to reflect on the matter. In my opinion, whether the result reached by the judge was right or wrong, the reasons which he gave are not satisfactory. I refer to the three paragraphs, numbered 5, 6 and 7 in the transcript, which I quoted earlier.

Paragraph 5 begins ‘Unfortunately’, and, taken with some observations in paragraph 6, appears to contain an implied criticism of the claimants and their solicitors for commencing the present civil action at a time when the police were proposing to bring the matter before the magistrates under the Police (Property) Act 1897. If a criticism is indeed implied I do not agree with it. The claimants’ solicitors were plainly entitled to bring a civil action, and in my opinion to do so was the best course in the interests of their clients. I quoted earlier the observations of Lord Widgery CJ in the Raymond Lyons case to the effect that, in a case which was not straightforward and simple, an ordinary civil action was more suitable than an application to magistrates under the Police (Property) Act. Although Mr Khangure QC submitted in this court that, if the matter had gone before the magistrates in 1997 or 1998, it would have been straightforward and simple, I do not consider that it would have been.

The judge’s decision comes in paragraphs 6 and 7. It is not altogether clear to me what the critical reason for the decision is. It may be that, because in the judge’s view the police’s original intention of using the procedure under the Police (Property) Act 1897 was ‘the right approach’, therefore the police’s right to possess the goods continued right up to trial. If that is the reason I do not agree. I accept that, when the claimants’ solicitors called for the return of the goods and the police formed the intention of going to the magistrates under the Police (Property) Act, there was an implied statutory power to retain the goods pending the magistrates’ decision. However, in so far as the statutory justification of the police retaining the goods is said to be found in that Act, it could only continue for as long as the intention to use the procedure of the Act continued. Mr Dawson’s evidence shows that, once the present civil action was commenced, the police took the view that it was no longer appropriate for them to use the Police (Property) Act. That stage was reached in December 1997. It follows that the 1897 Act could not provide a statutory authority for the police to retain the goods after then. The judge declared that the Chief Constable was entitled to retain possession of the goods pending the outcome of the hearing of the claimant’s civil action (see paragraph 7 of the judgment). If the basis of the declaration was the provisions of the 1897 Act, or the existence of that Act, I cannot agree with it.

Another possibility is that the judge’s decision is based on s.22(2)(b) of PACE. He mentions that provision in paragraph 6 of the judgment. I do not find it easy to follow what precise point he is making about the paragraph. However, reliance on it as a justification for the police retaining the goods would tie in with the pleaded Defence. I repeat paragraph 7 of the Defence: ‘The said property is lawfully being retained in accordance with the provisions of section 22 of the Police and Criminal Evidence Act 1984 in that the Defendants believe that property has been obtained following the commission/consequences of a criminal offence and so as to ascertain the lawful ownership of the same’. Although the paragraph refers to s.22 generally, it is, I think, clear from the other words of it that it is relying only on s.22(2)(b), since that paragraph reads as follows: ‘anything may be retained in order to establish its lawful owner, where there are reasonable grounds for believing that it has been obtained in consequence of the commission of an offence.’

In my opinion s.22(2)(b) cannot provide the statutory justification which, in consequence of the decisions in Webb and Costello, is required if the police are to have a valid defence to the claimants’ action. I accept that the second part of the paragraph is satisfied: there were reasonable grounds (which is not to say conclusive grounds) for believing that the goods had been stolen and thus had been obtained by the claimants in consequence of the commission of an offence. However, the first part of the paragraph is not satisfied. Despite what is pleaded in paragraph 7 of the Defence, it is unrealistic to say that the police have been retaining the goods in order to establish their lawful owners. If I recall correctly Mr Khangure accepted as much in the course of the hearing. This feature of the case is in no sense a criticism of the police. It is merely an inevitable recognition of reality. The goods are cannibalised parts of cars – stolen cars in the suspicion of the police, or wrecked cars lawfully purchased in the contention of the claimants. Either way there was, and there still is, no realistic possibility of lawful owners (if the claimants are not the lawful owners) being identified. There was no evidence of continuing attempts by the police to trace the lawful owners of the parts, and I would not have expected any. The parts being retained by the police are those which no longer bear any serial numbers or identification marks. Detective Constable McWalter’s evidence confirmed that the police were unable to ascertain that any of the parts ‘related to any particular stolen report’. That stage of the investigation must have been reached quite early and certainly before the claimants commenced the present action.

In my opinion it follows that the only ground upon which the pleaded defence sought to justify the retention of the goods, and a ground which may have been a basis for the judge’s decision, cannot be supported. Is there any other justification? A public policy justification is not maintainable given the decisions in Webb and Costello. As far as I am aware the only other possibilities to be considered are other statutory provisions in s.22 of PACE.

Sub-paragraphs (i) and (ii) of s.22(2)(a) specify two other situations in which retention of goods by the police is authorised: retention for use as evidence at a trial for an offence, and retention for forensic examination or for investigation in connection with an offence. Those two situations may have existed for a time, but they no longer existed by the time that the claimants commenced the present action. In a word used by Lightman J in the opening paragraph of his judgment in Costello, the purposes contemplated by those two sub-paragraphs were ‘exhausted’.

That leaves only the general provision in s.22(1): ‘anything which has been seized by a constable … may be retained so long as necessary in all the circumstances’. Was it necessary in all the circumstances for the police to retain the cars and parts which they had seized from the claimants? Mr Khangure submitted that, when the police formed the intention of bringing the issue of what to do with the goods before the magistrates under the Police (Property) Act 1897, it was necessary for the police to retain the goods. I accept that. For the police to bring an application before the magistrates would have been a proper course to take, and it would have defeated the whole point of it if the police had parted with possession of the goods before the application came on to be heard. However, that particular necessity for retaining the goods could not continue after the police, in reaction to the commencement by the claimants of the present civil action in the County Court, no longer intended to invoke the jurisdiction of the magistrates under the 1897 Act. S.22(1) permits retention of the property ‘so long as’ is necessary. If the necessity arose from an intention to bring proceedings under the Police (Property) Act, it existed so long as that intention continued, but did not exist any longer once that intention had ceased.

The argument which remains is that, where the reason why the police no longer intended to bring proceedings under the Police (Property) Act was that the claimants had brought a civil action in the County Court, it was still necessary in the circumstances for the police to retain the goods, but now the necessity arose from the existence of the County Court action. I cannot agree with that argument. In my view it is circular. The claimants sue the police to recover goods which they say that they (the claimants) have a right to possess. The police defend the action on the ground that it is necessary for them (the police) to retain the goods. Why is it necessary to retain the goods? Answer: because the claimants are suing the police and the police are defending the action. In my view that cannot be right. It is certainly not an argument which would get anywhere in a case where the defendant is not the police. Assume that a defendant is sued for the return of some goods which he has in his possession and that he intends in good faith to defend the claim. He cannot risk disposing of the goods to a third party or destroying them, and he will not wish to return them to the claimant unless and until he loses the action. If he does lose the action and the claimant seeks damages for the detention of the goods in the meantime, the defendant could not escape by saying that it was necessary for him to keep the goods until the outcome of the action was known. Can PACE put the police in a unique situation of being able successfully to advance a defence of that nature? In my opinion it cannot.

It is worth commenting that, if this argument was a valid one, it could equally have been advanced in the Webb and Costello cases, at least to the extent that the relief sought in those cases was not just return of the money or the car, but also damages for wrongful detention in the meantime.

I accept that the words of s.22(1) are quite general: ‘so long as is necessary in all the circumstances’. The statute does not explicitly identify what sorts of circumstances it has in mind. In my view it is likely to have in mind circumstances which are associated with the law enforcement functions of the police. In the present case it was certainly for one of the law enforcement purposes set out in s.19 of PACE that the goods were seized, and in my view the assumption behind s.22 was that that would always be the case. I would accept that, as a criminal investigation progresses, new ‘circumstances’ may emerge, and further reasons why the police may need to retain seized property may develop, in addition to the reason why the goods were seized in the first place. But I suggest that the circumstances and the necessities which s.22(1) contemplates are ones of a law enforcement nature, arising from the police force’s function and role in society. I cannot believe that the conditions of the subsection are met where the only circumstance relied upon is that the police, who have no further law enforcement purpose for retaining the property, are not prepared to concede without litigation the previous possessor’s claim to have the goods returned to him.

There is one other detailed aspect of the case on which I wish to comment. The judge held that the police had been entitled to retain possession of the goods at all times up to his decision, but he ordered them to deliver the goods to the claimants 14 days after the decision. I do not understand the basis on which he did that. If the judge considered (correctly in my view) that the police were obliged by law to deliver the goods to the claimants, that was not an obligation which was created by his decision. It must have been an obligation which existed before the decision, although the police, acting in all good faith, were contesting it and a decision was needed to establish what the correct legal position was. It is entirely understandable that a defendant who disputes an assertion that property held by him should be returned to a claimant will hold on to the property for the time being. But if when the case is decided the defendant loses, it is now known that all along he was not entitled to possession of the property. The position is not that he was entitled to retain the property until the court decided against him, and only then became obliged to deliver it to the successful claimant. It was reasonable and, in all probability, completely honest for him to have retained the property pending the decision, but he did that at his own risk in the sense that, if the decision went against him, his retention would thereby be shown to have been unlawful and to have exposed him to a possible liability in damages.

For the foregoing reasons I would allow this appeal. I stress that this court is at present only concerned with the principle of liability, not with the amount of any consequential damages. That is, in my view, a potentially important point. There is an aspect of this case which makes me feel uncomfortable, namely the long delay before the claimants brought their claim to trial. Given the depreciating nature of these particular goods, the delay has markedly increased the amount of damages which the claimants are seeking. I would only comment that, if the case did progress to the stage of a contested assessment of damages, there might be an argument that the part of the depreciation which is attributable to a period of unexplained delay by the claimants ought not to be included in any damages recoverable from the police. That, however, cannot go to liability. If the police would have been liable in principle had the claimants, having commenced their action in December 1997, brought it to trial promptly in 1998, they are still liable in principle where the claimants only brought the action to trial in 2003.

I agree that this appeal should be allowed, substantially for the reasons given by Park J.

I do so with some reluctance, since in the circumstances and in the state of the law prevailing at the end of 1997, when this action was commenced, the actions of the police were entirely reasonable. As the Judge accepted, the County Court proceedings were treated as making it unnecessary and inappropriate to proceed with the application to the Magistrates’ Court under the 1897 Act. On the evidence of Mr Dawson, of the police’s Legal Services Department, it would have been standard practice in any event for the Magistrates’ Court to adjourn such proceedings pending the decision in the County Court.

Unfortunately for the police, in the five years or more which then passed before the case came to hearing in the County Court, the law had moved on. The case is given a somewhat artificial feel by the fact that we have no information as to why there was this extraordinary delay in what should have been a perfectly straightforward case. Accordingly, in assessing liability we have to treat that delay as neutral, although I agree with Park J that when it comes to assessing damages, the extent to which any loss was contributed to by the claimants’ failure to progress their case may be a very relevant factor.

I add some brief comments on the relationship between the County Court proceedings and the possible proceedings under the 1897 Act. I agree with Park J that s 22(1) of PACE would have provided a sufficient legal justification for the police to retain the goods pending an application to the magistrates under the 1897 Act I agree also, that in the light of subsequent authority, the same conclusion could not automatically be applied to the County Court proceedings.

The ambit of the County Court proceedings differs from proceedings under the 1897 Act in two potentially significant respects:-

The Lyons case (referred to by Park J) shows that the term “owner” under the 1897 Act is used in “its ordinary and popular sense”, which Lord Widgery CJ defined thus:

As Park J points out, it has been held in the Divisional Court (see West Midlands Police –v- White) that the Magistrates’ court would be entitled to decline to order the return of property on public policy grounds. It is unnecessary to decide in this case (and I would not wish to do so without further argument) whether that aspect of the 1897 Act has been wholly displaced by the subsequent cases. It is true that in Jackson –v- West Midlands Police, Laws J treated the public policy discretion of the Magistrates’ Court as equivalent to that of a common law court. Furthermore in R –v- Ipswich Magistrates’ Court ex parte Carter [2002] EWHC 332, Maurice Kay J allowed an appeal against a decision of the Magistrates’ Court, where their sole ground for refusing to return money was one of public policy. I note however that there was no detailed discussion of this issue; the Judge simply commented that it was “apparent” that the same principles must apply in a Magistrates’ Court as in the County Court (judgment para 9). Accordingly, I would prefer to reserve that issue for a case where it arises directly.

What is clear, however, is that following the decisions in Webb and Costello, the police will need to give much more careful thought to the basis on which they are retaining property, if they wish to be able to rely on s 22 of PACE. An application under the 1897 Act to the Magistrates’ Court may be a sensible precaution to protect the police against possible claims in the future. However, if the police are intending to seek some order, other than the return of the property to the person from whom they took it, they will need to be clear as to the basis on which they are seeking it. They must either be able to demonstrate that some other person has a better title, or (if the public policy exception survives) to advance positive public policy reasons for not giving effect to the possessory title.

If, as in this case, civil proceedings are commenced for return of the property, then the police will have to give careful thought as to whether they are in practice able to defend those proceedings. I would accept that s 22(1) would enable them to retain the property for a short period while they are considering the position. However, if having considered the matter they are not able to offer a substantial defence, then, for the reasons given by Park J, they cannot show that it is “necessary” to retain it.

The case also shows the risks for the police, even as defendant, in allowing proceedings to remain outstanding for a prolonged period. The judge in this case seems to have assumed that if, after the commencement of the County Court proceedings, the Chief Constable was entitled to retain the property, then that right continued up until the determination of the case, however long that might be. I agree that at the commencement of the case the police were entitled to hold the property. But in my view that right came to an end at the end of such period as was reasonably necessary for them to decide whether they had any basis for resisting the proceedings, which should in normal circumstances be at or about the time for serving their defence.

Subject to these qualifications and comments, I agree that the appeal should be allowed for the reasons given by Park J.

I agree that the appeal must be allowed for the reasons given by Park J; however, I also share the reservations and endorse the qualifications expressed by Carnwath LJ.

We are bound by the decisions of this court in Webb and Costello (in which the decision in Jackson does not appear to have been cited or considered). Nonetheless, I find it inherently rebarbative that, by means of civil proceedings in detinue based on the superior possessory title of the claimant over property held by the police following seizure in the course of investigating a suspected offence, a person may be held entitled to recover and continue to enjoy property even though the court may be satisfied that he is not the true owner and has acquired the property illegally, albeit the true owner is not identifiable. It seems to me that the terms of the 1897 Act are such that, in those circumstances, magistrates may well not be obliged to make an order in favour of such a claimant and in that respect the decision of Maurice Kay J in ex P. Carter may need revisiting should a case arise where the issue is a live one.