PROPERTY SEIZED
Section 199 of the Summary Proceedings Act 1957 provides for the disposal of things seized pursuant to a warrant issued under s198.
The section provides only for an application for return of property seized to be made either at the trial or hearing or on a subsequent occasion, unless the application is made by a constable pursuant to s199(3)(b).
Section 199 is set out in full in Appendix 3.
We recommend that s199 be replaced by a provision whereby a person from whom property has been seized, whether pursuant to a warrant or not, or who claims to be entitled to it, can apply to the court at any time for the immediate return of the property, subject to such conditions as the court may impose. A person from whom things are seized should not have to wait until the hearing before making such an application.
In Malone v Metropolitan Police Commissioner [1980] QB 49 the English Court of Appeal held that the only justification for retaining seized items was to preserve them for evidential purposes in a forthcoming trial, unless possession of the property is unlawful per se.
The court made it clear that the police had no statutory or common law power to retain money or property seized from an accused person solely in anticipation of the possibility of a compensation, forfeiture or restitution order being made against the accused if he or she was convicted. The court declined to develop the common law to embrace such a power, stating that this was more properly a question for Parliament.
In many cases the police may seek to retain property which may be liable to forfeiture because it will also be evidence in the proceedings. Where the existence or use of any such item is admitted for the purposes of the trial, we consider that the fact that the item may also be liable to forfeiture on conviction should not of itself justify the retention .of the item.
In other cases a thing seized may not be required as evidence even though it is liable to forfeiture on a conviction being entered against its owner.
We consider that where a power of forfeiture is granted by an Act explicit provision should be made either for the retention of the seized property in official custody or for return to its owner subject to such conditions as are appropriate, e.g., the provision of financial security or the entering into of a bond. (There is an example of a power to release goods seized, if certain conditions are first met, in s80(3) of the Fisheries Act 1983.)
In each case it will require a policy decision whether a power to retain items seized which are liable to forfeiture on conviction should be granted pending trial. In our view such a power should be granted only if this is necessary to preserve the property by preventing the disposal of the asset before trial to avoid the consequences of a forfeiture order. The power to return property on condition will further reduce the number of cases where it is necessary to retain such property in official custody.
Whenever reasonable prudence permits, items which have been seized and which are necessary to the continuing functioning of a legitimate business enterprise should be released, subject to any conditions which are appropriate.
Clearly, where possession of an article is illegal per se there should be no right to the return of the article.
We consider that such provisions should strike a reasonable balance between the public interest in the due administration of justice and the right of the individual not to be deprived of his or her property.
Accordingly, we recommend that whenever an item is seized the owner, or person entitled to possession, may apply to the court at any time, whether before or after the hearing, for its return and the court may order retention or return on such conditions as it thinks fit.