Neutral Citation Number: [2004] EWHC 2171 (Ch)
Case No: HC04C02993
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 29th September 2004

Before :

THE HONOURABLE MR JUSTICE PETER SMITH
- - - - - - - - - - - - - - - - - - - - -
Between :

	(1)	PETER SETTELEN
(2)	CHAKRA PRODUCTIONS LIMITED	Claimants	
	- and -		
	THE COMMISSIONER OF POLICE OF THE METROPOLIS	Respondent	

- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -

Mr Thomas Lowe (instructed by Reed Smith) for the Claimant
Mr Duncan Macleod (instructed by Metropolitan Police Service) for the Defendant

Hearing dates: Thursday 16th September 2004
- - - - - - - - - - - - - - - - - - - - -
Judgment

The Honourable Mr Justice Peter Smith :
INTRODUCTION 
1.	This Judgment is handed down as a result of a hearing that took place on 16th September 2004.  At the end of the hearing I indicated that I would accede to the Claimant’s application for relief as sought before me subject to undertakings being given by the Claimants and the Claimant’s Solicitors as to the preservation of the tapes, the subject matter of the application.
2.	The Defendant, the Commissioner of the Police of the Metropolis had indicated through its Counsel Mr Macleod at the hearing before me that it was content for the copy tape the subject matter of the application to be delivered up to be held in accordance with the undertakings to which I have already made reference.  However, it contended that it was not obliged to deliver the copy tape up and that therefore it sought an order that the Claimants pay its costs.  The Claimants for their part contended that they would have been entitled to an order and that therefore they would have recovered their costs.
3.	By the time the matter came on before me therefore, the only live issue, in effect was the question of costs.  That of necessity however, required the Court to determine the overall merits of the case.  Ordinarily I would have declined to embark on such an exercise, but given the urgency, the importance of the case factually and potential legal issues arising out of the determination it was, in my judgment appropriate to determine the issues as to principle for the costs issue.
4.	As a result of my determination the Defendant will have to pay the Claimants costs to be the subject matter of a detailed assessment if not agreed.
THE APPLICAITON
5.	The Claimants have not actually issued a claim form and the order following the delivery of the judgment will have to include an undertaking to issue a claim form and pay the appropriate fee.  
6.	They issued an application notice on 7th September 2004, which provided for (1) delivery up into the safe keeping of the Claimants Solicitors video tapes referred to in the draft order, (2) provision of information and (3) costs.
7.	By the time the matter came on before me, as I have said, the issue of delivery had been resolved and there was no pursuit of the request for information.  The only matter for me to determine was whether or not the Claimants were entitled to delivery up of the videotape referred to in paragraph 1 of the draft order.
BACKGROUND
8.	The order sought the delivery up of a copy of the Claimants videotape referred to in a letter dated 10th August 2004, from the Metropolitan Police Director of Legal Services to Mr Rutherford of the Claimant’s Solicitors, Reed Smith. And all other copies of the Claimants videotapes, which may be in the possession, power or control of the Defendant.  Although the draft order provided for a retention of the tape until further order by the Claimants’ Solicitors, in practical terms the action is concluded, save as to regards the continued retention of the copy tape and the further documents referred to in the draft order to be drawn following the undertaking proffered by Mr Lowe Counsel for the Claimants (and for this purpose Reed Smith also).
9.	The application is another piece of court litigation arising out of the unfortunate death of the late Diana Princess of Wales (“the Princess”).  The First Claimant who controls the Second Claimant (his company for all purposes as I understand it) in the early 1990’s was asked by the Princess to help her with speeches and speech delivery following the breakdown of her marriage with HRH Prince Charles (“The Prince of Wales”) and over the period during which they made a formal separation.
10.	In the course of the work the First Claimant (“Mr Settelen”) recorded several (but not all) of the sessions on the videotapes.  His recollection is that he produced a total of twenty tapes or there abouts, some of which remain in his possession, but some of which were left with the Princess for her to review at her leisure.  There was no express agreement made concerning the ownership of the tapes and the terms upon which Mr Settelen was providing services were never put into writing.  He was not paid separately for the videotapes and he charged for his services in the usual way, by the hour.  He did however pay for and own the blank videotapes and was responsible for all arrangements for the recordings made.
11.	He asserts that he never made a gift of them to the Princess and has asserted in this action (there is now no doubt so far as I can see) that he and or the Second Claimant are the author of the videotapes within the meaning of section 9 of the Copyright Designs and Patents Act 1988 and the first owner of the copyright by virtue of section 11 of that Act.
HISTORY OF CLAIMS
12.	Following the death of the Princess MR Settelen wrote to Kensington Palace asking for the return of tapes, which he had always and consistently regarded as his property.  He was told that the Princess’s former butler, Paul Burrell had been unable to trace the tapes and could only assume that they were destroyed by the Princess.  However, when Mr Burrell was arrested and his premises searched at least six of the tapes turned up in the possession of Mr Burrell who was charged with theft of other items of property and acquitted.  He was not however ever charged with the theft of the six tapes, which were recovered from his house.  This was despite the fact that Mr Settelen contacted the Defendant who told him to report them as stolen, which he did.
13.	Following the trial the Defendant had the task of returning property seized from Mr Burrell’s premises to its rightful owners.  Many of the items were disputed as between Mr Burrell and the executors of the Princesses Estate (“the Estate”), but all of these issues were resolved.
14.	Mr Burrell was acquitted in early November 2002.  Shortly thereafter Mr Settelen on 3rd November 2002 requested the return of his tapes.  He had of course first made a claim shortly after the death of the Princess on 25th September 1997.  He has consistently asserted the Claimants ownership and copyright in the tapes.
15.	Following the acquittal of Mr Burrell, the Estate on the 1st November 2002 also asserted ownership of all property that was in Mr Burrell’s possession other than property owned or claimed by the Princes’.
16.	That of course meant that the Defendant was faced shortly after the acquittal of Mr Burrell with two competing claims for the ownership of the tapes.  It had lawfully seized the tapes under section 19 of the Police and Criminal Evidence Act 1984 (“PACE”) when it searched the house of Mr Burrell.  They were seized then for the purposes of investigating whether Mr Burrell had committed any criminal offence.  As I have said, the tapes were never the subject mater of a charge against Mr Burrell.  There is of course no question of the Claimants ever being involved in any criminal activity and there has never been any question of retaining tapes for the purposes of investigating the Claimants.
17.	Following the competing claims (and other claims) the Defendants investigated the matter further and on 28th January 2003 wrote to Mr Settelen setting out a schedule of property recovered from the house of Mr Burrell.  Schedule G related to the six original tapes of which the tapes the subject matter of this application is a copy of one of them.
18.	The Defendant through Samantha Rachel-Ann Bird the Director to Legal Services for the Defendant indicated in the letter that the Defendant proposed to hold the property stored in a secure location until a final court order is made with respect to the restoration of the property as the court orders or consent is reached.  The Claimants had sought access to the tapes, but this apparently had been refused although summaries were provided at a later stage.  On 12th March 2003 Ms Bird indicated that the tapes would be retained by the Defendant until agreement was reached with the Estate or a court order made.  During 2003 there was fruitless correspondence passing between the Claimant’s Solicitors and the Defendant’s Solicitors, which did not take the matter further.  Somewhat surprisingly the Claimants and their lawyers were refused access to review the tapes.  Attempts were made to negotiate with the Estate, the Claimants Solicitors correspondence being unreasonably categorised as “irksome” (letter 21st July 2003).
19.	Despite the lack of access to the Claimant and the fact that only a handful of senior officers had seen the tapes and two lawyers in the legal directorate, an article appeared in the Guardian on 15th March 2003, which purported to report that officers who knew the contents had privately conceded that the tapes were “awfully embarrassing and that Mr Settelen probably has a powerful case for their return”.
20.	This following the traditional route of all leaks in high profile cases is attributable.  The Defendant denies it was responsible for the leak (and a later more significant one in September 2004).
21.	Ultimately, inter-pleader proceedings were issued on 12th November 2003 by the Defendant against Mr Settelen and the Estate.  Those were then adjourned for mediation, which proved fruitless, save allowing both Mr Settelen’s and the Estate’s lawyers to view the tape under strict conditions.  In May 2004 the proceedings were then revived.
22.	On 4th June 2004 Master Turner made a detailed order for the determination of the ownership of the tape.  In particular, in paragraph 5 he directed that three copies of the six videotapes be made to be provided to Mr Settelen’s lawyers, the Estates lawyers and a copy to be retained by the court.  Further he provided that the original tapes were to be sealed in a package and kept secure in the possession of the Defendant and that no further copies of the tapes be permitted save with the consent of all parties or leave of the court.
23.	As Mr Rutherford points out in his witness statement (paragraph 27) copying of the tapes in a controlled condition was very important because of confidence and copyright.  He was also concerned about repeated access to the original might damage the quality of the already fragile material.
24.	Although the Defendant wrote to Master Turner on 10th June 2004 expressing surprise about the sealed order, it never sought to vary the order, or challenge it.
25.	It follows therefore from the 4th June 2004, the Defendant was not permitted to take any copies of the tapes, save those permitted by the order.
SETTLEMENT OF DISPUTE
26.	In July 2004 the Estate renounced its claim to ownership of the original Tapes, which lead to the Inter-pleader action being discontinued on 19th July 2004, with no order as to costs.
27.	From that date the ownership of the tapes is clearly established as being that of the Claimant, although the Estate by the letter of Nicholson Graham and Jones on its behalf dated 16th July 2004, accepted that the tapes belonged to the Claimant, but without prejudice to its rights other than ownership which were reserved.   Those rights appear to relate possibly to copyright and any allegation of confidentiality in respect of the material on the tapes.  The ownership of the tapes themselves however is not disputed.
28.	Following the settlement the tapes were collected by the Claimants from the Defendant on 22nd July 2004.  Apparently inspection showed one of the tapes had greater signs of wear than the others and this was consistent with the tape being repeatedly run through a machine, either for viewing or for copying.  This was taken up by the Claimants Solicitors with the Defendant.  Ms Bird, by letter dated 10th August 2004, as I have said denied there was any leaking of the contents of further articles that apparently appeared in the Daily Mail and the News of the World.  She also said:-
“I can inform you that one copy of the “sensitive” tape has been retained by the Police for use by the Commissioner in his investigation into the death of Lady Diana, Princess of Wales.  Copies of the other five tapes have not been made.  This information should, for the avoidance of doubt, be kept confidential”.
29.	The Claimant had not been informed of the taking of this copy beforehand.  I have already observed that if the copy had been made between 4th June 2004 and 19th July 2004 that would have been a breach of Master Turner’s order.  
30.	Not surprisingly, this revelation attracted other correspondence.  It would be noted that the retention is as a result of the investigation into the death of the Princess.  That relates to a request made by Michael Burgess, the Coroner of the Queen’s Household and HM Coroner for Surrey on 6th January 2004, when he opened the inquest into the Princess and Al Fayed to the Defendant to make enquiries as to the cause of their deaths.
31.	As appears form a witness statement of Alan James Brown, Deputy Assistant Commissioner in the Defendant dated 14th September 2004, he was asked by the Commissioner to conduct that investigation.
A FURTHER JUSTIFICATION
32.	In paragraph 20 of Ms Bird’s witness statement dated 13th September 2004 I these proceedings, it is said that the tape which has been copied was copied because of the investigation into the death of the Princess and in particular a theory that she might have been murdered.  In the tape in question she has apparently alleged that one of her closest protection officers suffered the same fate, which could not be ignored.  The Defendant is also reviewing the investigation into the death of that security officer, which has not yet been completed.
33.	Thus the Defendant quite understandably is not able to form a view as to whether any of those possibilities is correct, as it is still at the investigation stage.
JUSTIFICATION FOR RETENTION 
34.	The original purpose for which the tapes were seized, ceased to be a justification for their retention following the acquittal of Mr Burrell in November 2002.  As far as I can see, the only basis for retention from that date until January 2004 can only have been a practical one with the Defendant being faced with competing claims for ownership of the tapes.  The Inter-pleader proceedings, which were commenced somewhat belatedly will have provided it with a measure of protection, but there is no lawful basis, so far as I can discern, which the Defendant could have asserted as a justification for retaining the original tapes.  Equally it follows that there was no lawful basis for the Defendant to make copies of such tapes once the Burrell trial had ended and the issue was only as to ownership.  No complaint can realistically, I suspect,  be made by the Claimants about the detention of the tapes during that period, as it was always open to them to commence Inter-pleader proceedings themselves, but they choose to go along with the somewhat tardy route carried out by the Defendant.
35.	The justification for taking the copy now and retaining the copy arises out of the Defendants investigation into the further deaths referred to above.  I entertain great doubts as to why the copy tape was necessary for either of those investigations.  The allegation made by the Princess as regards the death of her close protection officer has been in the public domain before.  I refer to paragraph 4 of Mr Rutherford’s second witness statement dated 15th September 2004 and the extract from a book published by Andrew Morton in 2004.
36.	I do not see how the Princess’s belief can form any evidence; either as to her own death or that of the close protection officer.  When pressed on this Mr Macleod alluded to other matters on the tape which showed a motive for the death of the close protection officer and thus possibly the death of the Princess.  I stress that it is important for people to appreciate that no consideration of the truth of these allegations has taken place before me.  Nor has the Defendant expressed a view about the truth of these allegations because it is still proceeding with the investigations.
37.	The Defendant therefore asserts a right to retain a copy having created the copy on 20th July 2004 for the purpose of those investigations.  It is fair to say that the justification for retention changed, but ultimately the stance is as set out in Ms Bird’s witness statement and I of course accept what she says there in that regard.  Deputy Assistant Commissioner Brown in his witness statement deposes to the fact that he reviewed the tapes and as a result of that review he formed the view that a copy of the tape would be needed for the purposes of the investigation.
LEGAL JUSTIFICATION
38.	The Defendant asserts a right to retain the copy under sections 19 and 22 PACE and at common law.
39.	The common law basis derives from the well-known Court of Appeal decision of Ghnia –v- Jones [1970] 1 QB 693.  In that case Lord Denning MR said this:-
“Balancing these interests, I should have thought that, in order to justify the taking of an article, when no man has been arrested or charged, these requisites must be satisfied:
First: The police officers must have reasonable grounds for believing that a serious offence has been committed - so serious that it is of the first importance that the offenders should be caught and brought to justice.
Second: The police officers must have reasonable grounds for believing that the article in question is either the fruit of the crime (as in the case of stolen goods) or is the instrument by which the crime was committed (as in the case of the axe used by the murderer) or is material evidence to prove the commission of the crime (as in the case of the car used by a bank raider or the saucer used by a train robber).
Third: The police officers must have reasonable grounds to believe that the person in possession of it has himself committed the crime, or is implicated in it, or is accessory to it, or at any rate his refusal must be quite unreasonable.
Fourth: The police must not keep the article, nor prevent its removal, for any longer than is reasonably necessary to complete their investigations or preserve it for evidence. If a copy will suffice, it should be made and the original returned. As soon as the case is over, or it is decided not to go on with it, the article should be returned.
Finally: The lawfulness of the conduct of the police must be judged at the time, and not by what happens afterwards”.
40.	Whilst that might have been a justification for seizure from Mr Burrell, because they had reasonable grounds for believing that an offence had been committed (i.e. theft by him), or were investigating a crime, none of the requirements set out in Ghani –v- Jones can possibly have been satisfied for retention of the claimants goods as against them following the acquittal of Mr Burrell.
41.	As the Privy Council in considering that decision said in Jaroo –v- The Attorney General of Trinidad and Tobago [2002] UKPC 5 there is no general power in the Police when they have lawfully seized property which is thereafter not the subject of any charge and is clearly shown not to have been stolen to retain that property as against the person entitled to possession of it against some uncertain future contingency (paragraph 27 of the Opinion).
42.	It follows therefore that there was in my Judgment no common law right to retain the tapes after the Burrell trial.
RETENTION UNDER PACE
43.	It is essential to distinguish between seizure and retention as the powers and rights are different.  Section 19 and 22 provide as follows:-
“General power of seizure etc.
19. (1) The powers conferred by subsections (2), (3) and (4) below are exercisable by a constable who is lawfully on any premises.
(2) The constable may seize anything which is on the premises if he has reasonable grounds for believing-
(a)	that it has been obtained in consequence of the commission of an offence; and
(b)	that it is necessary to seize it in order to prevent it being concealed, lost, damaged, altered or destroyed.
(3) The constable may seize anything which is on the premises if he has reasonable grounds for believing-
(a)	that it is evidence in relation to an offence which he is investigating or any other offence; and
(b)	that it is necessary to seize it in order to prevent the evidence being concealed, lost, altered or destroyed.
(4) The constable may require any information which is contained in a computer and is accessible from the premises to be produced in a form in which it can be taken away and in which it is visible and legible if he has reasonable grounds for believing
(a)	 that-
(i)		it is evidence in relation to an offence which he is investigating or any other offence; or
(ii)	it has been obtained in consequence of the commission of an offence; and
(b)	that it is necessary to do so in order to prevent it being concealed, lost, tampered with or destroyed.
(5)	The powers conferred by this section are in addition to any power otherwise conferred.
(6)	No power of seizure conferred on a constable under any enactment (including an enactment contained in an Act passed after this Act) is to be taken to authorise the seizure of an item which the constable exercising the power has reasonable grounds for believing to be subject to legal privilege.
Retention.

22. (1)	Subject to subsection (4) below, anything which has been seized by a constable or taken away by a constable following a requirement made by virtue of section 19 or 20 above may be retained so long as is necessary in all the circumstances;
(2)	Without prejudice to the generality of subsection (1) above—
(a)	anything seized for the purposes of a criminal investigation may be retained, except as provided by subsection (4) below-
(i)	for use as evidence at a trial for an offence; or
(ii)	for forensic examination or for investigation in connection with an offence; and
(b)	anything may be retained in order to establish its lawful owner, where there are reasonable grounds for believing that it has been obtained in consequence of the commission of an offence.
	(3) Nothing seized on the ground that it may be used—
(a) to cause physical injury to any person;
(b) to damage property;
(c) to interfere with evidence; or
(d) to assist in escape from police detention or lawful custody,
may be retained when the person from whom it was seized is no longer in police detention or the custody of a court or is in the custody of a court but has been released on bail.
(4) Nothing may be retained for either of the purposes mentioned in subsection (2)(a) above if a photograph or copy would be sufficient for that purpose.
(5) Nothing in this section affects any power of a court to make an order under section 1 of the Police (Property) Act 1897.
(6) This section also applies to anything retained by the police under section 28H(5) of the Immigration Act 1971.”
44.	If it is the case that the tape can be seized and detained by the Defendant if it is ordered to be returned to the Claimants there is no point in ordering delivery up even if technically there has been no seizure and detention under PACE.
45.	It will be seen that the power of seizure falls under subsection (2) or subsection (3).  Under subsection (2) the seizure can be made if a constable has reasonable grounds for believing it has been obtained in a consequence of the commission of an offence and it is necessary to seize it in order to prevent it being concealed lost damaged altered or destroyed.  That might have justified the seizure in respect of Mr Burrell, but it cannot be the justification (for example) for seeking to seize the tapes from the possession of the Claimants.
46.	Under subsection (3), anything can be seized by the police if there are reasonable grounds for believing that it is evidence in relation to an offence, which is being investigated and it is necessary to seize it in order to prevent the evidence being concealed, lost or destroyed.
47.	Seizure can take place where the constable has reasonable grounds for believing it is evidence for investigation (as opposed to reasonable grounds for believing a commissionable offence) and once again it is necessary to seize it in order to prevent the evidence being concealed lost altered or destroyed.
48.	Once again, whilst that might have been a justification for seizure from Mr Burrell, it is not suggested that such a seizure would be necessary as against the Claimants, because there is no suggestion that the Claimants would put at risk the preservation of the evidence pending trial.  It must be appreciated that the justification for the original seizure from Mr Burrell had long since ceased.  Indeed, the fact that the Defendant has been willing before the hearing to concede possession is completely demonstrative of that fact, and in my judgment fatally destroys any argument it has to retain the copy.
49.	A contrast however should be made to the powers of detention.  Once a document has been seized it can be retained “so long as is necessary in all the circumstances”.  
50.	Under subsection 2 as is set out above, without prejudice to that generality anything seized for the purpose of criminal investigation may be retained for use as evidence at a trial for an offence or forensic examination, or for investigation in connection with an offence.
51.	Where something is retained for the purposes mentioned under subsection (2)(a) a copy can be of sufficient purpose.
52.	I accept Mr Macleod’s submission that if the retention of the original was justified a copy would also be justified.
53.	I also accept Mr Macleod’s submission that there is no linkage between the offence for which a document is retained and the purpose for which it was seized.  Thus a document may be seized for investigating crime “A”, but if it lawfully retained during the period of that investigation and a possible crime “B” investigation occurs, it can be retained “so long as necessary in all the circumstances” in respect of that investigation.
54.	I reject Mr Macleod’s submission that the power of retention under subsection (2) is paramount and enables the Defendant to retain a document or property as long as it is investigating any offence so that no challenge can be made to that.  That does not seem to me to accord with the Court of Appeal decision of Gough –v- The Chief Constable of the West Midlands Police [2004] EWCA Civ 206.  I refer to in particular the Judgment of Park J who delivered the leading judgment on this point for which I am grateful, in paragraphs 30 to 37.
55.	In other words, for a retention of a document, or property, it must be necessary in all the circumstances.
56.	That involves an investigation on a case-by-case, fact-by-fact basis.  Where the property is seized is that of the person charged with the offences, or being investigated in relation to those goods, very little evidence will be required to justify a retention.  On the other hand, as both the common law cases and the statute clearly intended in my judgment where the goods and property of third parties is involved a balancing exercise can and should take place.  For example, if the police seize a very valuable asset belonging to an innocent person, which was needed for that person to carry on its business, I cannot see that a retention of that piece of property is going to be justified (assuming it cannot be copied) if safe guards can be put in place to preserve the item whilst allowing its remain in the possession of the innocent third party.
57.	The Claimants have offered undertakings, not merely to preserve the copy tape in the possession of their Solicitors but also the original tape from which it was derived.  They are also prepared to offer undertakings to ensure that that preservation continues until the investigation is complete, or the Defendant otherwise indicates that the preservation is not required.
58.	The Defendant, as I have said, has not indicated that that arrangement would cause it a concern from the point of view of preservation of the tape and copy.  Given that it seems to me that when one weighs all the circumstances required by section 22, a retention of a copy by the Defendant is not justified.
59.	I have no doubt that had the Defendant been open and frank with the Claimants and revealed what it was doing, a satisfactory arrangement could have been obtained along the lines of the agreed disposal of this action.  The reason no such agreed arrangement took place was because the Defendant choose to copy the tape secretly without telling the Claimants, despite the wording of the order of Master Turner’s to which I have referred.  The fact that the tape is in the possession of the Defendant regrettably does not appear to make it any more secure as regards publication.  There have been once again extensive revelations in the press this month about the contents of the tape.
60.	No doubt the usual leak inquiry will produce the usual results.  However, the Claimant is entitled to feel suspicious about the protestations on the part Defendant that there is no source of this information within the Defendant’s organisation.
61.	In conclusion, I accept that the tape has material on it, which the Defendant wished to have preserved for the purpose of the two investigations.  I also accept that the Statements on the tape are the only direct evidence of the linkage aspect of the various deaths (if any).  However, in all the circumstances of the case I do not see that that justified them taking a copy when a regime was capable of being put in place fully to provide for their need for the purpose of investigations and the Claimants rights to possession of their property and their right to take their steps to preserve what they perceive to be a valuable asset.
62.	Mr Macleod in the course of his submissions suggested that a decision against the Defendant would open a floodgate to all sorts of claims.  I do not agree.  The case does not establish any precedent, because it is quite clear on the basis of the Gough decision that all the circumstances are required to be investigated under a retention of section 22 and the Defendant has no unfettered absolute rights to retain property which it might have lawfully seized initially under a section 19 procedure.  For example, if a Police Officer dishonestly for his own purposes sought to retain property when there was no legal justification a Court could intervene and stop such retention.  In other words, an assertion of a right to detain is capable of challenge in my opinion.
63.	For all of those reasons I therefore determine that the Defendant ought to pay the Claimants costs to be the subject matter of a detailed assessment it not agreed.