Regina v Commissioner of Police for the Metropolis, Ex p Rottman, (2002)
HOUSE OF LORDSLord Nicholls of Birkenhead Lord Hoffmann Lord Hope of Craighead Lord Hutton Lord Rodger of Earlsferry OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENTIN THE CAUSEREGINAvCOMMISSIONER OF POLICE FOR THE METROPOLIS (APPELLANT) EX PARTE ROTTMAN (RESPONDENT) (On Appeal from a Divisional Court of the Queen's Bench Division) ON 16 MAY 2002  UKHL 20 LORD NICHOLLS OF BIRKENHEAD My Lords, 1. I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Hutton and Lord Rodger of Earlsferry. For the reasons they give, and with which I agree, I would answer the certified question in the manner Lord Hutton proposes and allow this appeal accordingly. LORD HOFFMANN My Lords, 2. I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Hutton and Lord Rodger of Earlsferry. For the reasons they give, and with which I agree, I would answer the certified question in the manner Lord Hutton proposes and allow this appeal accordingly. LORD HOPE OF CRAIGHEAD My Lords, 3. My noble and learned friend, Lord Hutton, whose speech I have had the advantage of reading in draft, has described the background to this case. I gratefully adopt his account of it. For the reasons which he has given, and for the reasons given by my noble and learned friend, Lord Rodger of Earlsferry, I agree that the powers which are given to the police by sections 18 and 19 of the Police and Criminal Evidence Act 1984 ("PACE") do not apply where a person is arrested under a provisional warrant for an extradition offence. I also agree with Lord Rodger that the power in section 32 of that Act to search premises in which the person was when he was arrested does not apply either as the term "offence" in subsection 2(b) is confined to domestic offences, and that section 17(5) of PACE has nothing to do with the power of the police to search premises once a person has been arrested. I regret however that I am unable to agree with my noble and learned friends' analysis of the powers which are available to a police officer at common law where he is in possession of an arrest warrant. 4. As Lord Hutton has explained, we are concerned here with a provisional warrant for the arrest of the respondent which was issued under section 8(1) of the Extradition Act 1989. A magistrate has power to issue a warrant of arrest under that section if he is supplied with sufficient evidence to satisfy him that he would be justified in issuing a warrant for the arrest of a person accused of a crime committed within his jurisdiction and that the conduct alleged would constitute an extradition crime: section 8(3). The purpose of the arrest, as section 9(1) makes clear, is to enable the respondent to be brought before a court of committal as soon as practicable with a view to the commencement of extradition proceedings against him in that court. Section 8(6) provides that, where a warrant is issued under that section for the arrest of a person accused of an offence of stealing or receiving stolen property committed in a designated Commonwealth country or colony, the magistrate shall have the like power to issue a warrant to search for the property as if the offence had been committed within his jurisdiction. But the magistrate did not have power to issue a warrant for search for property in this case, as the alleged offence was one of fraud and it was said to have been committed in Germany. The only power which he had under this statute was to issue a warrant for the respondent's arrest. He had power under section 26(1) of the Theft Act 1968 read with section 24(1) of that Act to issue a warrant to search for and seize stolen goods, but it was not alleged that the respondent had any stolen goods in his custody or possession or on his premises. 5. Had it not been for the possibility that a police officer executing a warrant of arrest issued under section 8(1) of the 1989 Act has powers of search at common law, therefore, the position in this case would have been quite straightforward. The warrant which was issued to him was a warrant of arrest only. Its sole purpose was to enable the respondent to be taken into custody. It was not a warrant to search. Its purpose was served as soon as the respondent had been arrested in the driveway of his house a few yards from its front door. The decision to search the house was not taken for the purpose of effecting the arrest. It was taken because two German police officers who arrived at the premises afterwards, having spoken to the public prosecutor in Germany, asked for the house to be searched. This was because they suspected that there were computers, computer disks and financial documents which might hold evidence of the offences which the respondent was alleged to have committed or proceeds of those offences. But the officer of the Metropolitan police to whom that request was made did not have a warrant to search the house. If he had asked for one to be issued to him under section 8(6) of the 1989 Act, it would have been refused. The statutory powers under PACE were not available. In the absence of a relevant common law power, it is plain that the entry and search of the house which the police carried out was unlawful, and that the respondent's rights under article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms were violated. The common law power 6. There is no doubt that a police officer had power at common law, when executing a warrant for a person's arrest, to search the suspect and to seize any articles which he might find on his person or in his immediate vicinity which might constitute material evidence against him for the purpose of preserving that evidence until trial. The question which is in dispute is whether this common law power extended to a search of the premises where the arrest took place for evidence as well as to a search of the person of the suspect. In view of the powers of search upon an arrest which are given to a constable by section 32 of PACE this question is no longer a live issue where the offence for which the person was arrested is a domestic offence. I consider that the authorities as to the state of the common law prior to the coming into force of PACE are at best unclear on the point. Its development was not assisted by the fact that the test as to whether evidence obtained in the course of a search is admissible was whether the evidence was relevant and not whether it had been properly obtained: Jeffrey v Black  QB 490. In that context there was no need to address the question whether the search was lawful. In the present case it is directly relevant. In my opinion the better view is that the constable had no common law power to carry out a search of the premises for evidence unless he had the person's consent or the authority of a search warrant. 7. In Chic Fashions (West Wales) Ltd v Jones  2 QB 299 Lord Denning MR reviewed the cases relating to the power of a constable entering a house in possession of a search warrant to seize goods not covered by the warrant but which he reasonably believed to have been stolen and to be material evidence on a charge of stealing or receiving against the person in possession of them. They included the Scottish case of Pringle v Bremner and Stirling (1867) 5 Macph HL 55. That was an action of damages in which it was alleged that a constable who was authorised by a search warrant to search a house for pieces of wood and pieces of a fuse used to cause an explosion had taken away private books and papers which he had found in the pursuer's repositories. Lord Chelmsford LC recognised, at p 60, that it might be said that the constable had no right whatever to go beyond the terms of his warrant and endeavour to find something else that might implicate the pursuer in the charge. But he added this comment in a passage which Lord Denning MR quoted, at p 311G: "But supposing that in a search which might have been improper originally, there were matters discovered which showed the complicity of the pursuer in a crime, then I think that the officers, I can hardly say would have been justified, but would have been excused by the result of their search." 8. That was however, as Lord Denning MR observed at p 312A, a case on a search warrant. He then went on to consider the power of a constable to seize other goods which go to prove guilt where he was executing a warrant of arrest. In Dillon v O'Brien and Davis (1887) 16 Cox CC 245 it was held that, where a person was arrested on an arrest warrant, a constable was entitled to take from him property found in his possession which was likely to form material evidence in his prosecution for a crime. Palles CB said, at p 249, that constables were entitled, upon a lawful arrest of a person charged with treason or felony to take and detain property "found in his possession" which would form material evidence in his prosecution for crime. I note in passing that he did not go so far as to say that they were entitled to conduct a search of the premises. In Elias v Pasmore  2 KB 164 it was held that a constable who was arresting a man named Hannington for sedition was entitled to seize documents which were in his possession which would form material evidence against the plaintiff in that action on a charge of inciting Hannington to commit the crime of sedition. Horridge J said, at p 173, that their seizure, although improper, would be excused because the documents were capable of being used and were used as evidence in the trial. 9. The conclusion which Lord Denning MR drew from these cases was that, when a constable enters a house by virtue of a search warrant for stolen goods, he may seize not only the goods which he reasonably believes to be covered by the warrant, but also any other goods which he believes on reasonable grounds to have been stolen and to be material evidence on a charge of stealing or receiving against the person...
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