Returning property, including offensive weapons, following a caution

04 November 2020

Not reviewed after the date of publication

Question: 

A child has been cautioned for the offence of having a bladed article on school premises. The items were two flick knives which he took from his father's collection. The father is now wishing to have these items returned, should these items be destroyed or should we return them?

Answer:

Section 1(2) of the Prevention of Crime Act 1953 enables forfeiture and disposal of any weapon where a person is convicted of any offence under the Act. There is no similar power in relation to offences committed under sections 139 (possession in public place) and 139A (possession of school premises) of the Criminal Justice Act 1998, and in your circumstances the youth was not convicted, they received a caution.

In our opinion you are obliged to return the property to the rightful owner as the retention of the property is no longer necessary under section 22 of the Police and Criminal Evidence Act 1984, although the item itself is an offensive weapon it is not currently illegal to possess in a private place.

If you are not happy with returning the flick knives you could consider the Police (Property) Regulations 1997 which makes provision for the disposal of property which is in the possession of the police, to which the Police (Property) Act 1897 applies. However, as there has been no conviction and the owner of the property is requesting the return, then we believe that an application for disposal of the property in this way would not likely be successful at court.

Please see the cases of Webb v CC Merseyside and Potter v CC of Merseyside 1999 which held that where the police no longer had authority to retain property, then the property must be returned to the owner.

Please also check your force policy to see if any guidance has been provided on this issue specifically for your force.

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