In the matter of Scopelight Limited & Others v Chief Constable of Northumbria and Another  EWHC 958 (QB), the police obtained a search warrant to enter the claimants’ premises, which they did, accompanied by the second defendant, a private commercial party interested in the outcome of the search.
During the search a number of items were seized. The Crown Prosecution Service subsequently decided that no criminal proceedings would be taken against the claimants. However, the second defendant decided that they would bring a private prosecution against the claimants, and, with the police, sought to retain the items for that purpose. The court held that there was no power to do so, and that the claimant’s property should be returned.
In so doing it did not rule out the possibility of the situation being different were the prosecuting body a public authority, although one would expect that this could only be done in accordance with the law.
Notably, S.8(2) PACE only authorises the power of retention to the police. It is common for the police to act with other agencies and clearly if in so doing they pass on evidence to other agencies without a legal basis they are not only interfering with other’s rights, but are providing grounds for an abuse of process argument.
In both the W and the Scopelight decisions the court relied on authorities which predated the Human Rights Act, and neither engage with the issue of Art.8 or the DPA. This is disappointing given the court’s duty to consider human rights issues in making a decision.
As it would be likely to be the claimant relying on the Art.8, this is perhaps irrelevant given that the judgments went in the claimant’s favour in any event, however in both cases the decision turned very much on the facts.