Is a 'seize and sift' notice required for mobile phones?

12 June 2019

Not reviewed after the date of publication

Question:

Regarding sections 50 to 52 of the Criminal Justice and Police Act 2001, in relation to 'seizing and sifting', is a section 52 notice required when seizing a mobile phone?

Answer:

Where it is not possible to sift through everything at the scene to determine what needs to be seized as evidence, the provisions in sections 50 to 66 of the Criminal Justice and Police Act 2001 provide additional powers of seizure. Section 50 allows an officer to seize bulk material, and sift through it at another place, where it is not reasonably practicable for it to be sifted through in the place where it was found. However, the powers under this section can only be exercised where there is an existing power of seizure as shown in Part 1 of Schedule 1 to the Act. PACE Code of Practice B, paragraphs 7.7 - 7.17, provide guidance on the implementation of these powers.

Similarly section 51 of the Criminal Justice and Police Act 2001 gives the police additional powers of seizure from a person, where there is an existing power to search, as shown in Part 2 of Schedule 1. This section is almost identical to section 50 but is necessary because, for example, an individual might be carrying a file or suitcase containing a bulk of correspondence which could not be examined in the street.

Section 52 of the Criminal Justice and Police Act 2001 deals with the requirement to give the occupier and / or some other person or persons from whom material has been seized a notice specifying what has been seized and why – this applies to both sections 51 and 52 (above). The notice should also include information about applying to a judge for the return of the seized material and about applying to attend any examination of the seized material.

The case of R (on the application of Faisaltex Ltd and Others) v Preston Crown Court and Another 2008 concerned a claim in respect of a variety of search warrants executed on different sets of premises in respect of a case by the police and HMRC. The investigators who had applied for the warrants suspected a large scale importation and exportation of counterfeit clothing and related offences. Computers, hard drives, memory sticks etc. had been seized in this case and the court found that the digital storage devices were not akin to a filing cabinet, in that the police could take what they required from the filing cabinet but they could not do this from a digital storage device. They described the computer hard drive as a 'thing' and it was open to the issuing Court to name computers etc. in a warrant even if they contained other irrelevant material. A comparison was made with a diary, in that it may contain a lot of irrelevant material, but that would not prevent it being listed in a warrant and seized.

Therefore, on this basis, we are of the opinion that if a computer has been identified as a single 'thing' then this could also apply to a mobile phone and so a section 52 notice is not required. However, as this case was not specifically about mobile phones, any challenge to police action would ultimately be for the courts to decide.

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