danuggster

Property retention (computing equipment), a "Legal Minefield"?

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I was arrested in October of 2015 (around 1 year and 4 months ago) and had a large quantity (around £6000) of computing equipment including PCs and my games consoles seized by Police Scotland for investigation. I was scheduled to appear in court the very next day, however my case was "not called" and I was released from the court building. Since then I have been battling back and forth with my Lawyer to try and get my property returned. He keeps sending them letters asking to have it returned, only to receive responses along the lines of the following from the Procurator Fiscal:

"I am not in a position at the moment to return any of the computer equipment seized to your client. The items have not yet been examined and I do not know whether they contain data which is of evidential value to the case"

after doing some of my own digging around I stumbled upon the following blog post on a UK police-law blog: (relevant sections bolded)



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Computers

Keep in mind the requirement of section 22 of PACE that property should not be retained if it is possible to make a copy. This is particularly relevant to digital equipment such as computer hard drives.

A problem with computer hardware is that it becomes rapidly obsolete. If the police hold onto a computer for two years, they may face a bill for the whole cost of the computer and software, as it is no longer of any real use to its owner. Small businesses may claim substantial losses if their hardware or data is not returned.

Often the hard drive is the only part of the computer of interest to an investigation. There is the potential to return the rest of the computer equipment, either with a blank hard drive, or a copy of the drive seized. If the person from whom the computer was seized asks the police to do this, then under section 21 of PACE there is likely to be an obligation to supply a copy of the hard drive, along with the rest of the hardware. Given the duty to return this equipment, the police should routinely consider whether to adopt the approach below, even if the person has not asked for the equipment.

Provided the CPS is in agreement, and there are no major concerns as to the use to which the data will be put, a suggested process would be:

make at least two ‘mirrors’ of the computer’s hard drive;

remove the original drive (if not already removed), and replace it with one of the mirrors;

retain the original drive to preserve continuity and use the second mirror as the working copy for interrogation, etc; and

return the computer with the first of the ‘mirrored’ hard drives – thus allowing the suspect/organisation to have access to their own data.

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This was taken from the following article (the section titled Computers):

http://www.ukpolicelawblog.com/index.php/15-in-depth/53-retaining-property-a-legal-minefield



At which point I read up on the Police and Criminal Evidence Act of 1984 (as amended) which contains the following extract (I have highlighted the important parts in bold.



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22 Retention.

(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 seized for the purposes of a criminal investigation may be retained, except as provided by subsection (4) below—

(i)for use as evidence at a trial for an offence; or

(ii)for forensic examination or for investigation in connection with an offence; and

(b)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.

(3)Nothing seized on the ground that it may be used—

(a)to cause physical injury to any person;

(b)to damage property;

©to interfere with evidence; or

(d)to assist in escape from police detention or lawful custody,

may be retained when the person from whom it was seized is no longer in police detention or the custody of a court or is in the custody of a court but has been released on bail.

(4)Nothing may be retained for either of the purposes mentioned in subsection (2)(a) above if a photograph or copy would be sufficient for that purpose.

(5)Nothing in this section affects any power of a court to make an order under section 1 of the M1Police (Property) Act 1897.

[F1(6)This section also applies to anything retained by the police under section 28H(5) of the M2Immigration Act 1971.]

[F2(7)The reference in subsection (1) to anything seized by a constable includes anything seized by a person authorised under section 16(2) to accompany a constable executing a warrant.]

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http://www.legislation.gov.uk/ukpga/1984/60/section/22

From these extracts, it seems pretty clear that the PF should have returned my property a long time ago. I have sent multiple emails to my Lawyer asking him to investigate this, or at least give me some information about whether this may be relevant but he keeps ignoring me, and sending the same letters to the PF simply stating "It has been a long time now, and the police have had ample time to complete their investigation . . . etc" which seems to always fall on deaf ears at the PF office.

What can I do to resolve this? Is the PF obligated under section 22 of PACE (above) to return my equipment? I'd like some external advice before I go hounding my Lawyer again, and before I consider looking for legal advice elsewhere.

Any questions, please ask, and thanks in advance.

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Imaging a hard drive or similar device is a fairly straightforward procedure today. A specialist company, and there's quite a few available, can go into a large company with perhaps dozens of networked computers and image the lot in a day. Most personal computers can be imaged in an hour or two. The only reason in normal circumstances when computers may not be either returned as found or with replacement imaged discs is if there are images of child porn or somesuch, which obviously could not be returned, but you would like as not know this by now. The beauty of many, if not most,most computer based investigations is that the evidence is all there.

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​As far as I am aware police will keep any seized evidence for as long as necessary, presumably till the case is over one way or another. I have a hard time believing they would keep computers hanging around if it wasn't for a reason, they need the space after all.

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I was arrested in October of 2015 (around 1 year and 4 months ago)

Are you sure it was 2015?

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Hi Guys,

Thanks so much for the replies, I had no idea that PACE only applied in England and Wales, that pretty much explains everything. After doing some further digging I have to agree that they can pretty much keep anything as long as they want. I don't particularly agree with this but things are the way they are and so I guess I just have to deal with it.

I'm also currently living in Japan right now, which I'm sure is also adding to the massive time that it is taking to get anything done.

I was arrested in October of 2015 (around 1 year and 4 months ago)

Are you sure it was 2015?

Ah, you are right indeed, sorry. It was 2014. Wow that sounds like such a long time ago now.

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Is the case finished with one way or the other yet?

If not then they have a good reason to hang on to it, if it is finished then the police are just being petty and bloody minded (surely not guv'nor), possibly just dishing out their version of summary punishment if their initial suspicions turned out to be crap (they don't like being wrong and will look to blame someone else for it).

If I were you I would complain and complain and complain. Complain to the local station, the SPA (or whatever it's called), write to your MP, local press even. Most of it will have no effect but I would make every effort to make the police look as publically bad as possible, at the end of the day, they are keeping your kit so it can't really get any worse.

Don't expect any result from the police themselves because that blue line may be thin but it's carbon fibre strong.

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Showing your true colours now Toby...

Never been anything else.

Would you suggest the OP just accepts the loss of HIS property?

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It's not lost.

Sounds like his case is still ongoing so the items are productions in a case, not lost property.

You are just trying to stir it without any knowledge of the OP's situation.

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It's not lost.

Sounds like his case is still ongoing so the items are productions in a case, not lost property.

You are just trying to stir it without any knowledge of the OP's situation.

1) Yes it is, the OP, even if the case is ongoing, has lost his property albeit temporarily. I try to look at things from the citizen point of view rather than through blue lenses.

2) Maybe it is, maybe not. Some clarification from OP would be good.

3) Guesswork masquerading as a fact, I take it you are either current or ex police?

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