Judgments - Regina v Commissioner of Police for the Metropolis, Ex P Rottman

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    55. In R v Governor of Pentonville Prison, Ex p Osman [1990] 1 WLR 277, which was a case where extradition was sought of Osman to Hong Kong, the police officers entered a house where he was living. They had with them a search warrant. Once inside the house they arrested Osman on a provisional warrant issued under section 6 of the Fugitive Offenders Act 1967. They then searched the house and seized and removed a large number of documents.

    56. Objection was taken that there was no common law power to search and seize documents in relation to a crime alleged to have been committed abroad. Lloyd LJ, giving the judgment of the court, first considered the power to search and seize when police officers lawfully arrested a person for a domestic crime. He stated, at p 311:

    "We do not accept Mr Ross-Munro's first objection. It is beyond dispute that, in relation to a domestic offence, a police officer entering a house in pursuance of a warrant of arrest, or otherwise lawfully arresting a defendant, is entitled to take any goods or documents which he reasonably believes to be material evidence in relation to the crime for which the defendant is being arrested: Ghani v Jones [1970] 1 QB 693, 706."

Thus it is clear that Lloyd LJ considered that where a police officer enters a house and arrests a suspect pursuant to a warrant of arrest he is entitled to search the entire house and seize any articles which provide evidence against the suspect. Lloyd LJ then held that the power to search and seize after a lawful arrest applied to an extradition crime as well as to a domestic crime and he said, at p 311:

    "Is there then any difference between a warrant of arrest in domestic proceedings and a provisional warrant under section 6 of the Fugitive Offenders Act 1967? We can see none. The police powers of search and seizure consequent on a lawful arrest ought to be, and in our judgment are, the same in both cases."

    57. Miss Montgomery QC, for the respondent, accepted that under the common law where a suspect had been arrested in his own house pursuant to a warrant for a domestic crime, the police officers effecting the arrest were entitled to search the person of the suspect for items which might constitute evidence for a prosecution and also to seize such items which were in his possession in the actual room in which he had been arrested. But she submitted that the earlier authorities did not support the opinion of Lord Denning MR in Ghani v Jones and the opinion of Lloyd LJ in Osman that the common law power extended to searching and seizing articles which would be material evidence in the remainder of the house. She cited the observations of Professor Feldman in his work The Law Relating to Entry, Search and Seizure (1986) who stated, at pp 241-242, paras 9.37-9.38, with reference to the passage in Lord Denning's judgment in Ghaniv Jones [1970] 1 QB 693, 706:

    "9.37  As regards arrests this statement goes further than the authorities will justify, perhaps because of the confusion caused by treating powers following arrest as if they were the same as powers under a search warrant. The assumption that the police have power to search a man's house after his arrest, at least when the arrest has taken place in the house, is not supported by either of the cases cited by Lord Denning MR [Pringle v Bremner and Stirling, and Chic Fashions which related to searches under a search warrant] …. Cases where authority to search is granted by a magistrate on being convinced (at least in theory) that there is reasonable cause to believe that the articles sought are on the premises are in a different category from searches following arrest. In the latter case, the search will not have been subject to prior review, it will be of a speculative nature and the goods sought will be uncertain. The question is, therefore, whether there is any clear authority for the existence of a power to search anything more than the arrested person himself.

    9.38  There is no English authority either at common law or under statute for searching an area or taking property which is not under the immediate physical control of the person arrested."

Therefore Miss Montgomery submitted that the common law power was too widely stated by Lord Denning and that your Lordships should hold that the power was confined to seizing articles in the room where the suspect was present at the time of his arrest.

    58. My Lords, I am unable to accept that submission. The power of the police to search the person of the suspect when he had been arrested and to seize articles in the room where he was present was based, as Diplock LJ stated in Chic Fashions [1968] 2 QB 299, 317B, on the robust common sense of the reasoning of Palles CB in Dillon, 16 Cox CC 245. I consider that it would be contrary to common sense to hold that the power to search and seize after arrest did not extend to searching the remainder of the premises belonging to the suspect in which or on which he had been arrested. Suppose after an attack on another person with a knife the police had pursued the attacker, carrying a knife, and had seen him enter his house through the front door and run through the hall into the kitchen, and the police had then entered the kitchen through the back door of the house and arrested him but found no knife in the kitchen, were the police acting unlawfully if they then went into the hall and, on finding that the suspect had put down the knife in the hall, seized it? To hold that the police had no power in law to act in this way would, in my opinion, be contrary to good sense. When the police are not authorised to arrest a man they should only have power to search his house pursuant to a search warrant or under statutory authority. But the position is different when the police are entitled to arrest him. In Chic Fashions after referring to the power of a police officer to arrest a suspect Salmon LJ stated, at p 319:

    "If the man's person is not sacrosanct in the eyes of the law, how can the goods which he is reasonably suspected of having stolen or received be sacrosanct? Only if the law regards property as more important than liberty; and I do not accept that it does so. It would be absurd if the police had the power to arrest a man, but, having failed to catch him, had no power to seize the goods in his house which they reasonably believed he had stolen or unlawfully received."

This reasoning applies with even greater force when the suspect has been arrested.

    59. To the argument that after the arrest of a suspect in his house pursuant to a warrant the police should not be entitled to search the remainder of the house because they had not been authorised to carry out such a search by a magistrate, I consider that the answer is that a magistrate had considered it proper to authorise the arrest of the suspect. The arrest and the taking into custody of a person and the entry into his home to effect the arrest is a much greater intrusion into his home, his liberty and his privacy that the search of his home and seizure of articles subsequent on his arrest. As such search and seizure will often be necessary to prevent the disappearance of material evidence before the police have time to obtain a search warrant, I consider that this action should be permitted by the law. Therefore I am of opinion that the common law power was correctly stated by Lord Denning MR and Lloyd LJ and was a legitimate extension of the previous case law.

    60. Miss Montgomery submitted that having arrested the respondent, not in his house, but outside it in the grounds of his property, the police were not entitled to enter the house to search it. I would not accept this argument because the house and the grounds surrounding it comprised the premises of the respondent and I think that it would be artificial to draw a distinction between a house and its grounds in relation to the power to search following an arrest of a suspect on his premises.

    61. It was further submitted on behalf of the respondent that even if the common law had permitted police officers, after they had arrested a person in his house, to search the house and seize articles in it, the power should have been restricted to domestic offences and should not have been extended to extradition offences. Miss Montgomery argued that in Chic Fashions [1986] 2 QB 299 and in Ghani v Jones [1970] 1 QB 693 the Court of Appeal was influenced, not by the need to combat foreign crime, but by the need to combat domestic crime, and she relied on the observation of Lord Denning in the former case, at p 313B, that in these times, "with the ever-increasing wickedness there is about", honest citizens must help the police and not hinder them in their efforts to track down criminals, on a similar observation by him in the latter case, at p 708G, and on the statement by Salmon LJ in Chic Fashions, at p 319C, that there had never been a time when the incidence of crime was higher or the need for prevention of crime greater.

    62. My Lords, I reject this submission. The effective combating of international crime is as important as the effective combating of domestic crime. As Lord Griffiths said in Liangsiriprasert (Somchai) v Government of the United States of America [1991] 1 AC 225, 251: "Unfortunately in this century crime has ceased to be largely local in origin and effect. Crime is now established on an international scale and the common law must face this new reality." If, prior to PACE, the police had power under the common law, after an arrest for a domestic crime, to search the suspect's house and seize articles which would constitute material evidence against him at a subsequent trial, I consider that the common law gave a similar power when an arrest had been made for an extradition crime, and that Lloyd LJ was right to hold in Osman [1990] 1 WLR 277 that in relation to the power to search and seize there is no difference between a warrant of arrest in domestic proceedings and a warrant of arrest in extradition proceedings. If material evidence in the house of the suspect is not seized by the police at the time of his arrest, the risk of it disappearing soon after the arrest exists whether the arrest is for an extradition crime or for a domestic crime.

    63. Therefore before PACE came into operation I am of opinion that the police had power under the common law, after arresting a person in his house or in the grounds of his house pursuant to section 8(1)(b) of the 1989 Act, to search the house and seize articles which they reasonably believed to be material evidence in relation to the crime for which they had arrested that person. I am further of opinion that this power was one that served a valuable purpose because it ensured that what appeared to be material evidence in the house of the suspect would not disappear after his arrest and before the police had had time to obtain a search warrant.

The provisions of PACE

    64. PACE was enacted on 31 October 1984 and Part II which contains the relevant sections came into operation on 1 January 1986. Section 17 provides:

    "(1)  Subject to the following provisions of this section, and without prejudice to any other enactment, a constable may enter and search any premises for the purpose—

    (a)  of executing—

    (i)  a warrant of arrest issued in connection with or arising out of criminal proceedings. ….

    (2)  Except for the purpose specified in paragraph (e) of subsection (1) above, the powers of entry and search conferred by this section—

    (a)  are only exercisable if the constable has reasonable grounds for believing that the person whom he is seeking is on the premises. ….

    (4)  The power of search conferred by this section is only a power to search to the extent that is reasonably required for the purpose for which the power of entry is exercised.

    (5)  Subject to subsection (6) below, all the rules of common law under which a constable has power to enter premises without a warrant are hereby abolished.

    (6)  Nothing in subsection (5) above affects any power of entry to deal with or prevent a breach of the peace."

Section 23 defines "premises" as including "any place". Extradition proceedings are criminal proceedings: see R v Governor of Brixton Prison, Ex p Levin [1997] AC 741. Therefore the warrant of arrest issued in this case under section 8(1)(b) of the 1989 Act was a warrant of arrest within the meaning of section 17(1)(a)(i). Accordingly the police had power under section 17(1)(a)(i) to enter the respondent's premises for the purpose of executing the warrant of arrest but, by reason of section 17(4), the police, having arrested the respondent, had no power to search his house.

    65. Section 18 provides:

    "(1)  Subject to the following provisions of this section, a constable may enter and search any premises occupied or controlled by a person who is under arrest for an arrestable offence, if he has reasonable grounds for suspecting that there is on the premises evidence, other than items subject to legal privilege, that relates—

    (a)  to that offence; or

    (b)  to some other arrestable offence which is connected with or similar to that offence.

    (2)  A constable may seize and retain anything for which he may search under subsection (1) above.

    (3)  The power to search conferred by subsection (1) above is only a power to search to the extent that is reasonably required for the purpose of discovering such evidence."

Section 18 then sets out certain procedures to be observed:

    "(4)  Subject to subsection (5) below, the powers conferred by this section may not be exercised unless an officer of the rank of inspector or above has authorised them in writing.

    (5)  A constable may conduct a search under subsection (1) above—

    (a)  before taking the person to a police station; and

    (b)  without obtaining an authorisation under subsection (4) above,

    if the presence of that person at a place other than a police station is necessary for the effective investigation of the offence.

    (6)  If a constable conducts a search by virtue of subsection (5) above, he shall inform an officer of the rank of inspector or above that he has made the search as soon as practicable after he has made it.

    (7)  An officer who—

    (a)  authorises a search; or

    (b)  is informed of a search under subsection (6) above, shall make a record in writing—

    (i) of the grounds for the search; and

    (ii) of the nature of the evidence that was sought.

    (8)  If the person who was in occupation or control of the premises at the time of the search is in police detention at the time the record is to be made, the officer shall make the record as part of his custody record."

    Section 19 provides:

    "(1)  The powers conferred by subsections (2), (3) and (4) below are exercisable by a constable who is lawfully on any premises. ….

    (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. ….

    (5)  The powers conferred by this section are in addition to any power otherwise conferred."

    66. The principal argument advanced by Mr Perry, on behalf of the appellant, was that having lawfully arrested the respondent pursuant to the warrant, the police officers had power under common law to search his house and seize the articles which they considered to be material evidence in relation to the crime, and that this power had not been extinguished by PACE. Mr Perry also submitted that in addition to this common law power the police had power under both section 18 and section 19 to search the respondent's house and to seize the articles. I would reject, as did the Divisional Court, the argument that the police had such a power under either section. Section 18 only applies to the premises of a person who is under arrest for an "arrestable offence". An "arrestable offence" is defined in section 24(1) as an offence for which the sentence is fixed by law, an offence for which a person of 21 years or over (not previously convicted) may be sentenced to imprisonment for a term of five years (or might be so sentenced but for the restrictions imposed by section 33 of the Magistrates' Courts Act 1980) or a long list of domestic offences created by United Kingdom statutes. Therefore it is clear, in my opinion, that an "arrestable offence" is a domestic offence and the extradition crime alleged to have been committed by the respondent in Germany cannot be regarded as an "arrestable offence" within the meaning of section 24(1).

    67. Nor, in my opinion, can the appellant rely on section 19(3)(a). That section only applies to the seizure of evidence in relation to "an offence which [the police officer] is investigating or any other offence". In R v Southwark Crown Court, Ex p Sorsky Defries [1996] Crim LR 195 (and transcript 6 July 1995) the Divisional Court held that the words in section 19(3)(a) "any other offence" were confined to domestic offences because (following Cox v Army Council [1963] AC 48, Air-India v Wiggins [1980] 1 WLR 815 and Macleod v Attorney-General for New South Wales [1891] AC 455,458) in the absence of an express provision to the contrary the word "offence" in a statute meant a domestic offence. In coming to this conclusion the Divisional Court also took into account section 8(1)(a) of PACE and section 7(1) of the Criminal Justice (International Co-operation) Act 1990. Section 8(1)(a) gives power to a justice of the peace to issue a search warrant if he was satisfied on reasonable grounds that a "serious arrestable offence" had been committed. Section 7 of the 1990 Act provides:

    "(1)  Part II of the Police and Criminal Evidence Act 1984 (powers of entry, search and seizure) shall have effect as if references to serious arrestable offences in section 8 of and Schedule 1 to that Act included any conduct which is an offence under the law of a country or territory outside the United Kingdom and would constitute a serious arrestable offence if it had occurred in any part of the United Kingdom."

    Referring to section 7(1) McCowan LJ stated:

    "That very provision militates against a construction that allows 'offence' elsewhere in Part II of the 1984 Act to include a foreign offence."

I consider that the word "offence" in the phrase "an offence which he is investigating" should not be given a wider meaning than the same word subsequently appearing in sub-clause (a) and is also confined to a domestic offence. In this case the police were not investigating a domestic offence and are not entitled to claim a power to seize under section 19(3)(a).

    68. Section 32(2)(b) gives a police officer power "to enter and search any premises in which [an arrested person] was when arrested or immediately before he was arrested for evidence relating to the offence for which he has been arrested", but the appellant cannot rely on this subsection because, for the reasons which I have given in relation to section 19(3)(a), the term "offence" is confined to a domestic offence and does not extend to an extradition offence.

    69. Therefore I turn to consider the question whether the common law power of search and seizure after an arrest on a warrant issued pursuant to section 18(1)(b) of the 1989 Act was extinguished by PACE. The reasoning of the Divisional Court on this question is contained in paragraphs 46 to 53 of its judgment. Brooke LJ stated, at paragraphs 46-47:

    "46.  I turn now to the question whether we should now hold that whatever the position might have been before PACE came into force, this common law power must be taken to have been extinguished. It is at once noticeable that Osman was decided in the interval between PACE's appearance on the statute book on 31 October 1984 and the date when Part II of PACE came into force. Parliament would therefore have been unaware of this latest extension of the police's common law powers when it was considering the bill which became PACE.

    47.  I find it quite impossible to interpret Part II of PACE as providing any saving for the common law power identified by Lloyd LJ in Osman. While it is true that section 18 contains no provision comparable to section 17(5) (" … all the rules of common law under which a constable has power to enter premises without a warrant are hereby abolished"), it appears to me that Parliament intended section 18 to provide in codified form for the full extent of a constable's power to enter and search premises after an arrest (for the purposes identified in that section), and intended it to be limited to police inquiries into domestic offences."

    70. In paragraph 48 Brooke LJ noted that when Parliament enacted PACE on 31 October 1984 the government was already engaged in a long drawn out review of extradition law and practice and he referred to the publication by the government in February 1985 of a Green Paper entitled "Extradition" (Cmnd 9421) which stated that it was unnecessary to make specific provision in an extradition statute to allow property connected with an alleged offence to be seized and surrendered to the requesting state. Brooke LJ then observed that there was no hint in this material of any need to extend the powers of search and seizure contained in the new domestic legislation so as to make them available in an extradition context.

    71. In paragraph 49 he stated that it was not until the enactment of the Criminal Justice (International Co-operation) Act 1990 that Parliament produced a modern code for mutual assistance in criminal proceedings and investigations and he stated that section 7 of that Act created arrangements for the issue of search warrants of varying gravity, which dove-tailed with the language used by PACE in relation to domestic procedure.

    72. In paragraph 50 he stated that the enactment of the 1990 Act gave Parliament the opportunity to decide whether it wished to give the police a power to search the premises of an arrested person without a warrant such as was enacted in a domestic context in section 18 of PACE, and he observed that Parliament decided not to take that opportunity. Instead the 1990 Act obliged the police to obtain a warrant before entering premises occupied and controlled by the person in question for the purpose of searching them and seizing relevant evidence found there.

    73. Brooke LJ then stated, at paragraph 51:

    "If Mr Perry was correct, then an unnoticed common law power of search would have survived the coming into force of PACE but would not have attached to it any of the disciplines created by section 18 of PACE or PACE Code of Practice B (see para 1.3 for the searches to which that code applies). …."

    74. He then stated, at paragraphs 52-53:

    "52.  For these reasons, I am satisfied that the common law power of search which was identified by this court in Osman was extinguished when Part II of PACE came into force. I am also satisfied - and indeed the contrary was not argued - that the police possessed no statutory power of entry and search without a warrant outside the four corners of PACE, and PACE gave them no such power in an extradition context. Given that Parliament has decided to set out the extent of police powers of entry and search without a warrant, I do not consider that it would be appropriate for us to create new common law powers today. I do not need to repeat in this judgment the submissions we received from Miss Montgomery on the ECHR requirements of clarity and accessibility in the context of a potential violation of Article 8(1) of the Convention. Where Parliament has legislated in fine detail in relation to the exercise of powers of entry and search without a warrant in a domestic context, judges should not act as substitute lawmakers in order to identify similar powers in an extradition context to which no such fine detail by necessity could be attached. Because there was no lawful justification for the search without a warrant, Mr Rottman's Article 8(1) rights were violated.

    53.  I must make it clear that nothing in this judgment must be taken as negativing any power of the police to seize articles found in the possession of the person they are arresting. What the police needed in this case was (i) a power to enter the dwellinghouse (which Mr Rottman cannot be taken to have given them voluntarily for the purpose of searching it) and (ii) a power to search it. In the absence of a warrant from a court they possessed neither of these powers. In the interests of completeness I would add that if the search was otherwise lawful, I do not consider that the involvement of the two German police officers, even on Mr Rottman's account of the matter, would have rendered it unlawful."

    75. In my opinion the common law power of search and seizure was not extinguished by PACE and I consider, with respect, that the Divisional Court fell into error when Brooke LJ stated in paragraph 47:

    "I find it quite impossible to interpret Part II of PACE as providing any saving for the common law power identified by Lloyd LJ in Osman."

But the question is not whether PACE saved the common law power — rather the question is whether PACE extinguished it, as Brooke LJ had recognised in the preceding paragraph. It is a well-established principle that a rule of the common law is not extinguished by a statute unless the statute makes this clear by express provision or by clear implication. The common law power was a valuable one in respect of an extradition offence because, just as in respect of a domestic offence, it guarded against the risk of the disappearance from the suspect's house of material evidence after his arrest and before the police had time to obtain a search warrant. Sections 18 and 19 of PACE are confined to domestic offences and I do not consider that the provisions of that Act lead to the conclusion that Parliament intended to revoke the common law power exercisable after the execution of a warrant of arrest for an extradition offence; and it is relevant to note that section 19(5) expressly preserved any power otherwise conferred.

    76. Annex B of the 1985 Green Paper on Extradition set out recommendations of the working party on extradition accepted in principle and paragraph 22 stated:

    "It is unnecessary to make specific provision in an extradition statute to allow property connected with an alleged offence to be seized and surrendered to the requesting State (Rec 48)."

I consider that Mr Perry was correct in his submission that this recommendation meant that the government accepted that there was a common law power to seize property connected with an alleged extradition offence and considered that therefore there was no need for an express statutory provision. In my opinion it did not mean, as the Divisional Court suggests, that the government considered that there was no need to extend the powers of search and seizure in PACE so as to make them available in an extradition context.

 
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