Commentary on Sections Part 2: Powers of seizure
156.The decision of the Divisional Court in R v Chesterfield Justices and Chief Constable of Derbyshire ex parte Bramley, which was given on 5th November 1999, brought into focus the difficulties faced by the police and other law enforcement agencies where material they are entitled to seize is contained within a larger collection of material some of which they might not be entitled to seize. The Bramley case made clear that the Police and Criminal Evidence Act 1984 does not entitle the police to seize material for the purposes of sifting it elsewhere.
157.The background to the judgement is that an application for judicial review was brought by Andrew Bramley, a car dealer, who challenged the seizure by Derbyshire Constabulary of documents, including correspondence with his solicitors, from his premises outside Sheffield. Before the hearing of the judicial review challenge, Derbyshire Constabulary conceded that the search warrant and seizure were unlawful and paid Mr Bramley £1,000 in damages. But, because of the importance of the issues raised by the case and uncertainties in the law, the parties agreed that the Divisional Court should be asked to rule on the legal principles. Both the Attorney General and the Law Society intervened in the case and were represented at the hearing.
158.Lawyers for the police argued that provided the police reasonably believed the material they wished to seize was not legally privileged, they had the right to remove it to examine its contents elsewhere to determine what was and was not within the scope of the warrant. Rejecting this claim, Lord Justice Kennedy, who was sitting with Mr Justice Turner and Mr Justice Jowett, said common sense would suggest that a policeman executing a warrant should be able to do a preliminary sift of documents and then take all, or a large part of them, to sort out properly elsewhere. However, if a police officer seized items which were later found to be outside the scope of the warrant, the current provisions of PACE provided no defence to an action of trespass to goods based on unjustified seizure. In some cases the damages could be “significant”. The Divisional Court suggested that this problem could only be overcome by the introduction of primary legislation.
159.Whilst Bramley concerned the police and PACE, the principle applies to the powers of seizure given to a range of law enforcement agencies. The difficulty facing the police and these other law enforcement agencies is that there are circumstances where it is not practicable to establish on the premises subject to the search, which material can be seized and which cannot. This may be because of the simple bulk of the material. It may be because relevant material is contained within the same document or set of documents as material which is protected from seizure. The most difficult circumstances relate to material held on computer media. It may be impossible to establish which material is relevant and seizable without processing the data forensically. That may involve removing the computer and/or imaging the entire contents of its hard disks and/or removing CD Roms or floppy disks.