7 Seizure and retention of property

7.1 Subject to paragraph 7.2, an officer who is searching any person or premises under any statutory power or with the consent of the occupier may seize anything:

(a) covered by a warrant;

(b) the officer has reasonable grounds for believing is evidence of an offence or has been obtained in consequence of the commission of an offence but only if seizure is necessary to prevent the items being concealed, lost, disposed of, altered, damaged, destroyed or tampered with;

(c) covered by the powers in the Criminal Justice and Police Act 2001, Part 2 allowing an officer to seize property from persons or premises and retain it for sifting or examination elsewhere. See Note 7B

7.2 No item may be seized which an officer has reasonable grounds for believing to be subject to legal privilege, as defined in PACE, section 10, other than under the Criminal Justice and Police Act 2001, Part 2.

7.3 Officers must be aware of the provisions in the Criminal Justice and Police Act 2001, section 59, allowing for applications to a judicial authority for the return of property seized and the subsequent duty to secure in section 60. (See paragraph 7.12(iii).)

7.4 An officer may decide it is not appropriate to seize property because of an explanation from the person holding it but may nevertheless have reasonable grounds for believing it was obtained in consequence of an offence by some person. In these circumstances, the officer should identify the property to the holder, inform the holder of their suspicions and explain the holder may be liable to civil or criminal proceedings if they dispose of, alter or destroy the property.

7.5 An officer may arrange to photograph, image or copy, any document or other article they have the power to seize in accordance with paragraph 7.1. This is subject to specific restrictions on the examination, imaging or copying of certain property seized under the Criminal Justice and Police Act 2001, Part 2. An officer must have regard to their statutory obligation to retain an original document or other article only when a photograph or copy is not sufficient.

7.6 If an officer considers information stored in any electronic form and accessible from the premises could be used in evidence, they may require the information to be produced in a form:

which can be taken away and in which it is visible and legible, or

from which it can readily be produced in a visible and legible form.

7.7 The Criminal Justice and Police Act 2001, Part 2 gives officers limited powers to seize property from premises or persons so they can sift or examine it elsewhere. Officers must be careful they only exercise these powers when it is essential and they do not remove any more material than necessary. The removal of large volumes of material, much of which may not ultimately be retainable, may have serious implications for the owners, particularly when they are involved in business or activities such as journalism or the provision of medical services. Officers must carefully consider if removing copies or images of relevant material or data would be a satisfactory alternative to removing originals. When originals are taken, officers must be prepared to facilitate the provision of copies or images for the owners when reasonably practicable. (See Note 7C.)

7.8 Property seized under the Criminal Justice and Police Act 2001, sections 50 or 51 must be kept securely and separately from any material seized under other powers. An examination under section 53 to determine which elements may be retained must be carried out at the earliest practicable time, having due regard to the desirability of allowing the person from whom the property was seized, or a person with an interest in the property, an opportunity of being present or represented at the examination.

7.8A All reasonable steps should be taken to accommodate an interested person’s request to be present, provided the request is reasonable and subject to the need to prevent harm to, interference with, or unreasonable delay to the investigatory process. If an examination proceeds in the absence of an interested person who asked to attend or their representative, the officer who exercised the relevant seizure power must give that person a written notice of why the examination was carried out in those circumstances. If it is necessary for security reasons or to maintain confidentiality officers may exclude interested persons from decryption or other processes which facilitate the examination but do not form part of it. (See Note 7D.)

7.9 It is the responsibility of the officer in charge of the investigation to make sure property is returned in accordance with sections 53 to 55. Material which there is no power to retain must be:

separated from the rest of the seized property, and

returned as soon as reasonably practicable after examination of all the seized property.

7.9A Delay is only warranted if very clear and compelling reasons exist, for example:

the unavailability of the person to whom the material is to be returned, or

the need to agree a convenient time to return a large volume of material

7.9B Legally privileged, excluded or special procedure material (or in the case the National Security Act 2023, confidential material) which cannot be retained must be returned:

as soon as reasonably practicable, and

without waiting for the whole examination.

7.9 C As set out in section 58, material must be returned to the person from whom it was seized, except when it is clear some other person has a better right to it. (See Note 7E.)

7.10 When an officer involved in the investigation has reasonable grounds to believe a person with a relevant interest in property seized under section 50 or 51 intends to make an application under section 59 for the return of any legally privileged, special procedure or excluded material, the officer in charge of the investigation should be informed as soon as practicable and the material seized should be kept secure in accordance with section 61. (See Note 7C.)

7.11 The officer in charge of the investigation is responsible for making sure property is properly secured. Securing involves making sure the property is not examined, copied, imaged or put to any other use except at the request, or with the consent, of the applicant or in accordance with the directions of the appropriate judicial authority. Any request, consent or directions must be recorded in writing and signed by both the initiator and the officer in charge of the investigation. (See Notes 7F and 7G.)

7.12 When an officer exercises a power of seizure conferred by sections 50 or 51 they shall provide the occupier of the premises or the person from whom the property is being seized with a written notice:

(i) specifying what has been seized under the powers conferred by that section;

(ii) specifying the grounds for those powers;

(iii) setting out the effect of sections 59 to 61 covering the grounds for a person with a relevant interest in seized property to apply to a judicial authority for its return and the duty of officers to secure property in certain circumstances when an application is made, and

(iv) specifying the name and address of the person to whom:

notice of an application to the appropriate judicial authority in respect of any of the seized property must be given;

an application may be made to allow attendance at the initial examination of the property.

7.13 If the occupier is not present but there is someone in charge of the premises, the notice shall be given to them. If no suitable person is available, so the notice will easily be found it should either be:

left in a prominent place on the premises, or

attached to the exterior of the premises.

7.14 Subject to paragraph 7.15, anything seized in accordance with the above provisions may be retained only for as long as is necessary. It may be retained, among other purposes:

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

(ii) to facilitate the use in any investigation or proceedings of anything to which it is inextricably linked (see Note 7H);

(iii) for forensic examination or other investigation in connection with an offence;

(iv) in order to establish its lawful owner when there are reasonable grounds for believing it has been stolen or obtained by the commission of an offence.

7.15 Property shall not be retained under paragraph 7.14(i), (ii) or (iii) if a copy or image would be sufficient.

7.15 A An order given under the urgent case premises search power found in paragraph 15 of Schedule 5 to the Terrorism Act 2000, or paragraph 12 of Schedule 2 to the National Security Act 2023 does not authorise a constable to retain confidential journalistic material. If confidential journalistic material is seized during a search conducted under such an order, a constable may apply to a Circuit Judge as soon as reasonably practicable after the material is seized for the issue of a warrant authorising the retention of the confidential journalistic material. A warrant issued by the court may impose conditions on the retention and use of the material. See note 7HA.

7.16 If property is retained, the person who had custody or control of it immediately before seizure must, on request, be provided with a list or description of the property within a reasonable time.

7.17 That person or their representative must be allowed supervised access to the property to examine it or have it photographed or copied, or must be provided with a photograph or copy, in either case within a reasonable time of any request and at their own expense, unless the officer in charge of an investigation has reasonable grounds for believing this would:

(i) prejudice the investigation of any offence or criminal proceedings; or

(ii) lead to the commission of an offence by providing access to unlawful material such as pornography;

A record of the grounds shall be made when access is denied.

7A Any person claiming property seized by the police may apply to a magistrates’ court under the Police (Property) Act 1897 for its possession and should, if appropriate, be advised of this procedure.

7B The powers of seizure conferred by PACE, sections 18(2) and 19(3) extend to the seizure of the whole premises when it is physically possible to seize and retain the premises in their totality and practical considerations make seizure desirable. For example, police may remove premises such as tents, vehicles or caravans to a police station for the purpose of preserving evidence.

7C Officers should consider reaching agreement with owners and/or other interested parties on the procedures for examining a specific set of property, rather than awaiting the judicial authority’s determination. Agreement can sometimes give a quicker and more satisfactory route for all concerned and minimise costs and legal complexities.

7D What constitutes a relevant interest in specific material may depend on the nature of that material and the circumstances in which it is seized. Anyone with a reasonable claim to ownership of the material and anyone entrusted with its safe keeping by the owner should be considered.

7E Requirements to secure and return property apply equally to all copies, images or other material created because of seizure of the original property.

7F The mechanics of securing property vary according to the circumstances; “bagging up”, i.e. placing material in sealed bags or containers and strict subsequent control of access is the appropriate procedure in many cases.

7G When material is seized under the powers of seizure conferred by PACE, the duty to retain it under the Code of Practice issued under the Criminal Procedure and Investigations Act 1996 is subject to the provisions on retention of seized material in PACE, section 22.

7H Paragraph 7.14 (ii) applies if inextricably linked material is seized under the Criminal Justice and Police Act 2001, sections 50 or 51. Inextricably linked material is material it is not reasonably practicable to separate from other linked material without prejudicing the use of that other material in any investigation or proceedings. For example, it may not be possible to separate items of data held on computer disk without damaging their evidential integrity. Inextricably linked material must not be examined, imaged, copied or used for any purpose other than for proving the source and/or integrity of the linked material.

7HA Further details, including the conditions that must be satisfied before a judge may grant an application for a warrant authorising retention under the urgent case premises search power, can be found in paragraph 15A of Schedule 5 to the Terrorism Act 2000 and paragraph 13 of Schedule 2 to the National Security Act 2023.