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- LORD HOPE OF CRAIGHEAD
- LORD HOFFMANN
- LORD NICHOLLS OF BIRKENHEAD
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Commissioner of Police for the Metropolis, Ex P Rottman, R v.
Smart Summary
Factual and Procedural Background
The Respondent, a businessperson from The Country, was the subject of an arrest warrant issued by The Magistrates’ Court under section 8(1) of the Extradition Act 1989. Police officers from the Metropolitan Police Extradition Unit arrested the Respondent on the driveway of his home in The City. Shortly after the arrest, two officers from the requesting state asked the Metropolitan Police to search the premises for computers and documents believed to contain evidence of fraud offences abroad. Acting without a domestic search warrant, the officers entered the house and seized various items.
The Respondent sought judicial review. A Divisional Court ruled that the entry and search were unlawful, declared a violation of Article 8 of the European Convention on Human Rights, ordered the return of the seized items and adjourned the claim for damages. The Appellant (Commissioner of Police for the Metropolis) appealed to the House of Lords.
Legal Issues Presented
- Whether, at common law, a police officer executing an extradition arrest warrant may enter and search the arrestee’s premises for evidence without a separate search warrant.
- Whether any such common-law power survived the enactment of the Police and Criminal Evidence Act 1984 (PACE).
- Whether the search infringed the Respondent’s rights under Article 8 of the European Convention on Human Rights.
Arguments of the Parties
Appellant's Arguments
- At common law, officers effecting a lawful arrest (domestic or extradition) may search the premises where the arrest occurs and seize items reasonably believed to be material evidence (Ghani v Jones; Osman).
- PACE did not abolish that common-law power; sections 17, 18, 19 and 32 coexist with, but do not oust, pre-existing common law.
- The officers therefore acted lawfully and proportionately; Article 8 was not violated.
Respondent's Arguments
- Common-law authority to search premises extends only to the person and immediate vicinity, not the entire house; Ghani v Jones was wrongly understood.
- Even if such a power once existed, PACE impliedly extinguished it; sections 18, 19 and 32 apply only to domestic offences and create a complete statutory code.
- Absent statutory authority or a search warrant, the entry and seizure breached Article 8 due to lack of legality and proportionality.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|
| Jeffrey v Black [1978] QB 490 | Illegality of warrant-less domestic house searches; scope of police power on arrest. | Discussed to illustrate pre-PACE uncertainty and to distinguish immediate-vicinity searches from full-premises searches. |
| Chic Fashions (West Wales) Ltd v Jones [1968] 2 QB 299 | Police may seize items not specified in a warrant if reasonably believed stolen. | Cited to support a broader pragmatic view of police seizure powers. |
| Dillon v O’Brien & Davis (1887) 16 Cox CC 245 | Right to take evidence “found in possession” of an arrestee. | Used as historical foundation for seizure powers upon arrest. |
| Elias v Pasmore [1934] 2 KB 164 | Seizure of documents incidental to lawful arrest. | Reinforces tradition of evidence-preservation rationale. |
| Pringle v Bremner & Stirling (1867) 5 Macph HL 55 | Limits of searching beyond warrant terms. | Considered but distinguished; dealt with search warrants, not arrest warrants. |
| Ghani v Jones [1970] 1 QB 693 | Stated (obiter) that officers may search premises and seize evidence in course of lawful arrest. | Majority treated as authoritative articulation of common-law power. |
| R v Governor of Pentonville Prison, ex p Osman [1990] 1 WLR 277 | Applied Ghani to extradition arrests; affirmed parity with domestic cases. | Relied on as direct authority validating the search in extradition context. |
| Adair v McGarry 1933 JC 72 | Scottish view on post-arrest searches and evidence preservation. | Comparative support; indicates similar approach in Scotland. |
| Funke v France (1993) 16 EHRR 297 | Article 8 requires searches to be “in accordance with the law.” | Used by dissent to test Convention compliance. |
| The Sunday Times v UK (1979) 2 EHRR 245 | Three-stage “legality” test under Article 8. | Framework for assessing Convention breach. |
| R v Shayler [2002] 2 WLR 754 | Accessibility and foreseeability requirements under Article 8. | Applied in proportionality analysis. |
| de Freitas v Permanent Secretary (1999) 1 AC 69 | Three-limb proportionality test. | Guided Article 8 proportionality discussion. |
| R (Daly) v Home Secretary [2001] 2 AC 532 | Refinement of proportionality test. | Referenced in assessing necessity of interference. |
| R v Governor of Brixton Prison, ex p Levin [1997] AC 741 | Extradition arrests are made “in connection with criminal proceedings.” | Basis for treating extradition warrant as “warrant of arrest” under PACE s.17. |
| R v Southwark Crown Court, ex p Sorsky Defries [1996] Crim LR 195 | “Offence” in PACE provisions ordinarily means domestic offence. | Cited to exclude PACE ss.18, 19 and 32 from applying to extradition crimes. |
| Cox v Army Council [1963] AC 48; Air-India v Wiggins [1980] 1 WLR 815; Macleod v A-G for NSW [1891] AC 455 | Statutory use of word “offence” generally confined to domestic crimes absent contrary indication. | Support for reading “offence” in PACE as domestic only. |
| Liangsiriprasert v USA [1991] 1 AC 225 | Importance of tackling international crime. | Used to justify parity between domestic and extradition search powers. |
| Entick v Carrington (1765) 19 State Tr 1029 | Foundational case on unlawful search and entry. | Mentioned in historical survey of common-law protections. |
| Bessell v Wilson (1853) 20 LT (OS) 233 | Early authority on scope of search incident to arrest. | Cited in historical discussion. |
Court's Reasoning and Analysis
Four judges (Judge Nicholls, Judge Hoffmann, Judge Hutton and Judge Rodger) formed the majority; Judge Hope dissented.
- Common-law power: The majority accepted Judge Denning’s statement in Ghani v Jones that, upon a lawful arrest, officers may search the entire premises for evidence. Historical practice, the absence of contrary authority, and pragmatic necessity justified recognition of that power.
- Application to extradition arrests: Building on Osman, the House held that common-law search powers apply equally to provisional extradition warrants; effective international cooperation in crime control requires parity with domestic arrests.
- Impact of PACE: Sections 18, 19 and 32 of PACE concern domestic offences; nothing in the statute expressly or impliedly abolishes the older common-law search power. Section 17(5) abolishes only common-law entry “for the purpose of arrest,” not searches after arrest.
- Article 8 analysis: The majority found the interference “in accordance with the law” (i.e., the surviving common-law power) and proportionate to the legitimate aim of preventing crime. The dissent (Judge Hope) considered the power insufficiently certain and the search disproportionate, leading to a Convention breach.
Holding and Implications
APPEAL ALLOWED. The certified question was answered in the affirmative: a police officer who arrests a person on premises under an extradition warrant may lawfully search those premises and seize items reasonably believed to be material evidence of the extradition offence.
Direct consequences include reinstatement of the seizure and reversal of the Divisional Court’s declarations and mandatory order. The decision confirms that PACE does not codify the field and that a robust common-law power of search survives for both domestic and extradition arrests. No new statutory precedent was set, but the judgment clarifies the interaction between common law, PACE and Convention rights.
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