What Are the Rules for Seizing Evidence?

Seizing evidence is a central part of criminal investigations in England and Wales. It enables police to take items into custody that may be connected to a crime, prevent vital evidence from being destroyed, and ensure that material is preserved for forensic examination or use in court. However, police powers to seize evidence are strictly regulated by statute and professional guidance to protect individuals' rights and prevent unlawful interference with property. This article explains in clear, authoritative terms when and how police may seize evidence, the legal standards they must meet, how evidence is retained, and the rights of those affected.

What Does “Seizing Evidence” Mean?

In legal terms, seizing evidence refers to police taking possession of property that is suspected of being involved in an offence or that may help in a criminal investigation. This includes physical items such as weapons or stolen goods, digital data, documents, clothing, vehicles, or even human tissue in certain investigations. Seizure is not the same as permanent confiscation; evidence may be returned once it is no longer needed.

The principal legal authority for seizing evidence during criminal investigations is the Police and Criminal Evidence Act 1984 (PACE) and its Codes of Practice - particularly Code B - supported by related statutes and case law.

The Core Legal Power: Section 19 PACE

When Police Can Lawfully Seize Evidence

The fundamental statutory power to seize evidence is found in Section 19 of PACE. This provision allows a police officer to seize anything that is on premises where they are lawfully present if:

• They have reasonable grounds for believing that the item has been obtained in consequence of a criminal offence, or
• The item is evidence in relation to an offence the officer is investigating (or another offence), and
• It is necessary to seize the item to prevent it being concealed, lost, damaged, altered or destroyed.

This power also extends to digital material: if information stored electronically is accessible from the premises, an officer may require it to be produced in a form that can be taken away and examined.

Key requirements under Section 19 include:

• The officer must be lawfully on the premises - simply being invited in does not automatically confer lawful authority unless other powers apply.
• They must have reasonable grounds - a suspicion alone is not enough.
• Seizure must be necessary - officers must reasonably consider whether less intrusive options would suffice.

Police cannot use Section 19 to seize material that is subject to solicitor privilege, such as confidential communications between a client and their solicitor.

Seizure During Arrest and Search

Police Searches and Seizure Without a Warrant

Under PACE and its Codes of Practice, police may also search a person or premises in other circumstances and seize evidence:

• During a search under arrest: Police may search an arrested person or their immediate surroundings for evidence and seize relevant items.
• Under statutory search powers: Other sections of PACE and specific legislation (for example, stop-and-search powers) allow police to search and seize items without a warrant if certain conditions are met.

Search Warrants

When police need to enter and search premises where they do not already have lawful authority, they may apply for a search warrant from a justice of the peace. A warrant specifies what can be searched and often implicitly supports the lawful seizure of evidence found during the search.

In both types of searches, the decision to seize must align with the conditions of Section 19 - in essence, whether the item is evidence of an offence and whether seizure is necessary to preserve it.

Retention of Seized Evidence: Section 22 PACE

Once evidence is seized, police are permitted to retain it under Section 22 of PACE, but only for as long as necessary in all the circumstances. This includes:

• Use as evidence at trial.
• Forensic examination or analysis.
• Further investigation.
• Establishing lawful ownership where appropriate.

There is no fixed statutory time limit for how long evidence can be retained; retention must be justified based on investigative and evidential needs. If a photograph or copy can serve the same purpose as the original item, police are generally expected to return the original and retain only the copy.

Procedural Requirements and Safeguards

Codes of Practice

Under PACE Code B, police are required to:

• Act lawfully, responsibly and proportionately when seizing evidence.
• Respect individual rights, including privacy and property rights under the Human Rights Act 1998.
• Avoid seizure of items covered by legal privilege, except in limited statutory circumstances.

Police should record details of seized items, provide receipts where practicable, and explain the grounds for seizure to individuals affected unless it would jeopardise safety or the investigation.

Human Rights and Privacy

Article 1 of Protocol 1 to the European Convention on Human Rights protects an individual's peaceful enjoyment of possessions. This means any interference with property - including seizure - must be lawful, necessary and proportionate. Unlawful seizure may give rise to a legal claim against the police.

Practical Examples

Example 1 - Stolen Property:
Police executing a search warrant at a home find a set of jewellery that matches the description of items stolen in a burglary. Under Section 19, they may seize the jewellery as evidence and retain it under Section 22 pending forensic examination and possible court proceedings.

Example 2 - Electronic Devices:
During an investigation of fraud, a police officer lawfully on the premises sees a laptop with documents and emails relevant to the suspected crime. If there are reasonable grounds to believe the device contains evidence and it is necessary to prevent destruction or alteration of data, the officer may seize it and require digital information to be produced in a removable form for examination.

Example 3 - Search After Arrest:
A suspect is arrested on suspicion of drug offences. During their arrest, officers search the person and seize a mobile phone and a bag containing drugs. These items can be seized under statutory search powers, and if necessary under Section 19, to preserve evidence for investigation.

Challenging Seizure or Requesting Return of Property

Individuals affected by seizure of evidence generally have limited options while an investigation is ongoing, but they may:

• Request information from the investigating officer about why property was seized and when it may be returned.
• Seek legal advice or challenge detention and retention if there was an unlawful seizure or unreasonable delay in returning property that is no longer needed.
• Apply under the Police (Property) Act 1897 or make representations to a magistrates' court if property is not returned and there is no ongoing need for it.

Any challenge will typically focus on whether the police acted within their statutory powers, whether the grounds for seizure were reasonable and whether retention is still necessary.

Common Questions from our Readers

Do police need a warrant to seize evidence?
Police do not always need a search warrant to seize evidence. Section 19 allows seizure if they are lawfully on the premises and have reasonable grounds to seize the item for evidential purposes. Warrants are often used to support lawful entry and search but are not a precondition for seizure when other lawful authority to be on the premises exists.

Can seized evidence be returned?
Yes. Once evidence is no longer required for investigation, forensic examination, trial preparation or establishing ownership, police are generally expected to return it. If they refuse, it may be possible to challenge the decision legally.

Can police seize privileged material?
No. Items that are subject to solicitor privilege (e.g. confidential legal communications) cannot be seized under PACE, except in very limited statutory circumstances.

Key Takeaways

Police in England and Wales have defined legal powers to seize evidence during criminal investigations:

• Section 19 of PACE permits seizure of items when police are lawfully on premises and have reasonable grounds to believe those items are evidence of an offence or obtained through an offence and that seizure is necessary to preserve it.
• Section 22 of PACE governs how long seized evidence may be retained, based on investigative and evidential needs.
• Police must respect procedural safeguards in PACE Code B, avoid seizing privileged material, and act proportionately.
• Individuals may seek return of property that is no longer required and can challenge unlawful surrender or retention.

Understanding these rules helps individuals, solicitors and students assess when police actions are lawful and how to address disputes over seized evidence.