Right to retain

Gough and another v Chief Constable of the West Midlands Police CA TLR 4 March

Where the police are holding property seized from a person 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. Such a power is conferred where the police intend to apply to the justices under s1 of the Police (Property) Act 1897 for an order for the delivery of the property to the person appearing to be the owner. However, this statutory justification continues only for as long as that intention continues. In the absence of a continuing statutory power to retain the property, the former possessor’s right of possession prevails. The police had seized the goods in May 1997 suspecting that they were stolen. The claimants were arrested but never charged and although the police suspected that the goods belonged to persons unknown, they were unable to identify them. When the claimants instituted proceedings in December 1997, the police averred that they were entitled to retain them under s22 of the Police and Criminal Evidence Act 1984 on the grounds that they believed they had been obtained as a result of a criminal offence and so as to ascertain the lawful owners. It was no defence for the police to argue that the former possessors, the claimants, were not the true owners of the property; although it might be different if the police could establish who the true owner was. The statutory justification for refusing to return the goods only continued for as long as the police intended making an application to the justices under the 1897 Act. That entitlement had expired long ago when the police no longer intended to bring proceedings under the 1897 Act because the claimants had brought a civil action against them. It could no longer be said that it was necessary for the police to continue to retain the goods and the claimants were entitled to their return and damages for their unlawful retention.