Chief Constable of Merseyside Police v Joseph Patrick Owens
| Jurisdiction | England & Wales |
| Judge | President of the Queen's Bench Division |
| Judgment Date | 31 May 2012 |
| Neutral Citation | [2012] EWHC 1515 (Admin) |
| Docket Number | Case No: CO/11285/2011 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 31 May 2012 |
[2012] EWHC 1515 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Manchester Civil Justice Centre
President of the Queen's Bench Division
(Sir John Thomas)
and
Mr Justice King
Case No: CO/11285/2011
Mr Peter Sigee (instructed by the Solicitor, Merseyside Police) for the Appellant
The Respondent did not appear and was not represented
Hearing date: 18 January 2012
This is the judgment of the court.
This appeal by way of case stated from the Magistrates' Court raises issues as to whether the police are entitled to retain the respondent's property which they properly seized in the course of an investigation of a crime on the basis that the court should refuse to return it as the court would be, "indirectly assisting or encouraging the respondent in his criminal act". The issues arise on an application under s.1 of the Police (Property) Act 1897 and one of them is related to the issues in another case before this court, differently constituted, O'Leary International v Chief Constable of North Wales [2012] EWHC Admin where judgment is handed down at the same time.
It is necessary first to set out the facts.
The facts
On 6 June 2008 the house at which the respondent lived with his mother was deliberately set on fire. His mother was alone at the time but escaped without injury.
The incident was reported to the police who carried out detailed investigations, including a forensic investigation and house to house enquiries. As part of the investigation the police seized, acting under their powers under s.19(3) of the Police and Criminal Evidence Act 1984 (PACE), a video from the respondent's CCTV system. The powers under s.19(3) are:
"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."
The video was reviewed by Detective Sergeant Deborah Weir who was in charge of the investigation. It showed the front door at which a petrol can had been left; a person could be seen whom it was believed had caused the fire, but the image was unclear and no identification could be obtained from it. Despite all efforts, including viewing the video several times and enhancing the images, the police were unable to identify the person who had set the fire. The investigation was closed.
On 9 December 2008, the respondent applied to the Liverpool City Magistrates' Court for an order under s.1(1) of the Police (Property) Act 1897 (the 1897 Act) for the return of the video tape. As amended that section provides:
"Where any property has come into the possession of the police in connexion with their investigation of a suspected offence a court of summary jurisdiction may, on application, either by an officer of police or by a claimant of the property, make an order for the delivery of the property to the person appearing to the magistrate or court to be the owner thereof, or, if the owner cannot be ascertained, make such order with respect to the property as to the magistrate or court may seem meet."
That application was resisted by the appellant, the Chief Constable of Merseyside, on the basis that he had the power to retain the video tape under s.22(1) of PACE. He contended that he had a duty to enforce the law and prevent crime. He reasonably believed that the return of the video tape to the respondent might lead to the respondent committing a serious criminal offence.
The matter was heard by Deputy District Judge (Magistrates' Courts) andrew Meachin. The appellant provided a statement from Detective Sergeant Weir but she was not cross-examined. Unfortunately, and due to the Deputy District Judge's failure to follow the Criminal Procedure Rules in respect of the contents of a case stated, the Deputy District Judge made no findings in relation to her evidence. However, in the light of the fact that her evidence was not challenged, it seemed to us that the proper course for us to adopt was to set out, as part of the findings the Deputy District Judge should have made, her evidence.
Her evidence can be summarised as follows:
i) The respondent was a member of the British National Party; he had shortly prior to the fire released a book exposing police informants and "wannabe gangsters" in Liverpool.
ii) He told the police after the fire that he had received threats to petrol bomb his house. He identified to the police a possible suspect who had threatened him. He also said that as a result of the publication of the book there would be others who would have grievances against him.
iii) Detective Sergeant Weir formed the view that the respondent was not providing proper co-operation to the police. Her statements set out details of his failure to co-operate.
iv) Detective Sergeant Weir believed that if the respondent was to see the video tape he would seek revenge against a person who would either be the actual offender or a mistaken innocent third party; that person would either be killed or seriously injured. The reasons for her belief were as follows. When the respondent asked to see the video tape, he was aware there was no facial image of the offender but he thought he might be able to recognise the offender from his stance/gait. When he said that, he also told the police that he hoped the police would find out who did it before he did, as he did not want to go back to prison. The respondent had not co-operated with the police enquiry. The respondent had a violent past and had stood trial for murder. He could inflict serious and violent injury on any person that he might identify from the video tape.
The decision of the judge
The Deputy District Judge concluded that the respondent was entitled to the return of the video tape. His reasons can be summarised as follows. The application was a straightforward application. The 1897 Act dealt with ownership and nothing else. In the absence of special circumstances the police force owed no duty of care to members of the public. He concluded:
"Whilst I understood to a degree the concerns of DS Weir I was not satisfied that those concerns were so significant as to create the special circumstances required to impose a "special" duty of care on the Appellant.
I therefore ordered the Appellant to return the video to the Respondent."
He stated three questions for the court:
"1. Does the Appellant have a duty to enforce the criminal law and/or prevent criminal activity beyond the parameters set by Hill v. Chief constable of West Yorkshire (1988) and Osman v. United Kingdom (1998)?
2. Should the Magistrates court have declined to consider the application under S1 of the Police Property Act 1897 when the Appellant had reasonable belief that if the video was returned to the Respondent it may lead to serious criminal harm being caused by the Respondent to a third party on the basis this was not a suitable issue to be determined by this procedure.
3. Was the Appellant's reasonable belief that the return of the Video to the Respondent may lead the Respondent to commit serious criminal harm to a third party a sufficient reason for the Court to refuse to exercise its discretion under Section 1 of the Act to Order the appellant to return the Video to the Respondent?"
Although the case was stated on 25 March 2009, various applications asking the judge to consider further evidence and to make further findings resulted in very significant delay in the hearing of this case. None is in any way attributable to this court.
At the hearing the respondent was neither present nor represented. We satisfied ourselves that he had been notified of the date of the hearing and had deliberately decided not to be present at the appeal.
The issues on the appeal
The Chief Constable contended that the Deputy District Judge had not considered the correct issues. There were two questions:
i) Was he entitled to retain the video tape under the statutory powers contained in s.22 of PACE?
ii) Was he entitled to retain the video on the basis it would be contrary to public policy to allow the respondent to invoke the process of the court to seek the return of a video as the sole purpose for which the respondent wanted the video was unlawfully to inflict harm on another person?
The Chief Constable was correct. These were the issues.
It was accepted on behalf of the Chief Constable by Mr Peter Sigee, to whom we would like to pay a special tribute for the assistance which he gave the court, that it mattered not whether the claim was made under s.1 of the 1897 Act or was a civil claim brought in the County Court for delivery up of the video tape; the defence of the Chief Constable to its return applied in whichever court the claim was brought.
Issue 1: The power to retain under s.22
S.22 provides as follows:
"(1) Subject to subsection (4) below, anything which has been seized by a constable or taken away by a constable following a requirement made by virtue of section 19 or 20 above may be retained so long as is necessary in all the circumstances.
(2) Without prejudice to the generality of subsection (1) above—
(a) anything...
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