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

HOUSE OF LORDS

Lord Nicholls of Birkenhead Lord Hoffmann Lord Hope of Craighead Lord Hutton Lord Rodger of Earlsferry

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

REGINA v

    COMMISSIONER 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

[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 [1978] 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 [1968] 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 [1934] 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 in possession of them or anyone associated with him: [1967] 2 QB 299, 313C-E. He did not discuss the question which arises in this case, which is whether a constable who is lawfully on premises for the execution of an arrest warrant may conduct a search of those premises for evidence without being in possession of a search warrant.

    10. At p 316E-F, Diplock LJ said:

    "… unless forced to do so by recent binding authority, I decline to accept that a police officer who is unquestionably justified at common law in arresting a person whom he has reasonable grounds to believe is guilty of receiving stolen goods, is not likewise justified in the less draconian act of seizing what he, on reasonable grounds, believes to be the stolen goods in that person's possession."

Salmon LJ enlarged on this point, at pp 319G-320B :

    "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. There is no doubt that if they find the goods in his possession when they arrest him, they may seize the goods: see the observations of Lord Campbell in the footnote to Bessell v Wilson (1853) 20 LTOS 233; Dillon v O'Brien and Davis (1887) 16 Cox CC 245; and Elias v Pasmore [1924] 2 KB 164. Suppose the police, reasonably believing a man has stolen some jewellery, follow him into his house in order to arrest him. As they enter the front door, they see him disappearing out of the back door, but there on the table is the jewellery. Surely they may seize it; the fact that he has evaded capture cannot confer any immunity on him in respect of the stolen goods."

But the situations contemplated in these passages, where stolen goods are found in the person's possession when he is arrested or are in plain view as he evades arrest, are not those which are under consideration in this case. What their Lordships had in contemplation was a power to seize stolen goods which they find in his possession or they happen to see while they are attempting to effect the arrest. There is no discussion in these judgments of the question whether the police officer, having effected the arrest, would then be entitled at common law to conduct a search of the premises for evidence.

    11. The only passage in the authorities which may be said to be directed to this precise issue is to be found in the judgment of Lord Denning MR in Ghani v Jones [1970] 1 QB 693. That was a case where police officers who were inquiring into a woman's disappearance searched without warrant the house of the woman's father-in-law. At their request the father-in-law handed over to them various documents which included several passports. The plaintiffs later asked for the documents to be returned to them, but the police refused to do so. It was held that the police had not shown reasonable grounds for believing that the documents were material evidence to prove the commission of a murder or that the plaintiffs were in any way implicated in or accessory to a crime, and the police were ordered to return the documents forthwith.

    12. In the course of his judgment in Ghani v Jones Lord Denning said, at pp 705H-706C:

    "So we have a case where the police officers, in investigating a murder, have seized property without a warrant and without making an arrest and have retained it without the consent of the party from whom they took it. Their justification is that they believe it to be of 'evidential value' on a prosecution for murder. Is this a sufficient justification in law?

    I would start by considering the law where police officers enter a man's house by virtue of a warrant, or arrest a man lawfully, with or without a warrant, for a serious offence. I take it to be settled law, without citing cases, that the officers are entitled to take any goods which they find in his possession or in his house which they reasonably believe to be material evidence in relation to the crime for which he is arrested or for which they enter. If in the course of their search they come upon any other goods which show him to be implicated in some other crime, they may take them provided they act reasonably and detain them no longer than is necessary. Such appears from the speech of Lord Chelmsford LC in Pringle v Bremner and Stirling (1867) 5 Macph HL 55, 60 and Chic Fashions (West Wales) Ltd v Jones [1968] 2 QB 299." (Emphasis added)

    13. Were it not for the presence in this passage of the words which I have highlighted, it would not have been possible to say that it added anything to what could be found in the earlier authorities. The earlier authorities were not concerned with the question whether a police officer was entitled at common law, when effecting an arrest, also to conduct a search of the premises for evidence. What then are we to make of Lord Denning's use of the phrase "in the course of their search"?

    14. In my opinion the best guide to what Lord Denning had in mind is to be found in the fact that he said that he was setting out, without citing cases, what he took to be settled law. It was settled law that a police officer seeking to effect an arrest, with or without a warrant, was entitled to search the person of the suspect. It was also settled law that he was entitled to search premises where the suspect might be hiding for the purpose of finding the suspect and effecting the arrest. And it was settled law that he was entitled to seize things found in the course of either of these exercises which he reasonably believed to be material evidence in relation to the crime for which the suspect was being arrested or, having entered the premises in possession of a search warrant, he found articles in relation to a crime other than that for which the search warrant was granted. But there was no basis in the authorities for saying that it was settled law that a police officer, having effected an arrest, was then entitled to conduct a search of the premises for evidence without first having obtained a search warrant. I do not detect in Lord Denning's remarks an intention to extend the law to this effect. Nor was it necessary for him to do so for the decision in that case. The passage which I have quoted was plainly obiter, as the decision in the case did not turn on the question whether the police were entitled to take possession of the documents without a search warrant.

    15. In Jeffrey v Black [1978] QB 490 the police arrested the defendant for the offence of stealing a sandwich from a public house. They then searched his home without a search warrant and without his consent. It was held that their search of his home in these circumstances was unlawful and that the evidence which the police had obtained during their search of drug offences had been irregularly obtained. Reference was made to Lord Denning's observations in Ghani v Jones. It was not necessary for the court in that case to decide whether it would have been open to the police to conduct a search of the premises where the defendant was arrested with a view to finding material evidence of the crime for which he was arrested. Lord Widgery CJ said, at p 497A, that it might very well be that they might have made that inspection without further authority. But he went on to say that they did not have power to inspect his house at another place when the contents of the house, on the face of it, bore no relation whatever to the offence with which he was charged. I agree that there is no hint in this passage or in what Forbes J said, at p 499C, of any criticism of Lord Denning's observations. But here again the judges' comments on the issue that arises in this case were obiter.

    16. The only other case which bears on this issue is R v Governor of Pentonville Prison, Ex p Osman [1990] 1 WLR 277. In that case the police officers were in possession of a search warrant issued under the Forgery Act 1981 and a provisional warrant issued under section 6 of the Fugitive Offenders Act 1967 (from which section 8(1) of the Extradition Act 1989 is derived). They arrested Osman on the provisional warrant and then carried out a search in the course of which they removed a large number of documents. Objection was taken to the search on the ground that there was no common law power to search and seize documents in relation to a crime alleged to have been committed abroad. It was rejected by the Divisional Court for the following reasons which were given by Lloyd LJ, at p 311G-H:

    "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. 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."

    17. I agree that in the first sentence of this passage, read in its context, Lloyd LJ must be taken to have accepted Lord Denning MR's observations in Ghani v Jones as authority for the proposition that, where a police officer enters a house and arrests a suspect in pursuance of a warrant of arrest or otherwise lawfully, he is entitled to search the entire house and seize any articles which he reasonably believes to be material evidence. But for the reasons which I have already given I consider, with great respect, that this was a misreading of those observations. In any event, if Lord Denning's observations are to be read in this way I think that they went further than was justified by the authorities.

    18. I derive support for my approach from the views expressed by Professor David Feldman, The Law Relating to Entry, Search and Seizure (1986), pp 241-247, paras 9.36-9.48. In para 9.36 he observes that, when a person is arrested in private premises, police practice prior to PACE was to search the whole of the house or flat and remove any evidence they found and that this practice relied for common law authority on the dictum of Lord Denning in Ghani v Jones [1970] 1 QB 693, 706. In para 9.48 he says that PACE did what the Royal Commission on Criminal Procedure had recommended by regularising the existing police practice on search of the premises where the person is arrested. Of particular interest for present purposes is his examination of the common law in paras 9.37-9.47. As he points out, police practice is one thing. What the law is on the matter is quite another. Unless authorised by judicial decision or by statute, police practice is no more than that. It is not the law.

    19. In para 9.37 Professor Feldman says that Lord Denning MR's statement went further than was justified by the authorities, perhaps because of the confusion caused by treating powers of arrest as if they were the same as powers under a search warrant, and that the assumption that the police had power to search a man's house after his arrest was not supported by either of the cases which Lord Denning cited. As he points out later in the same paragraph:

    "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."

    20. The powers of entry to and search of premises by the police were considered by the Royal Commission on Criminal Procedure in its report The Investigation and Prosecution of Criminal Offences in England and Wales: The Law and Procedure (January 1981, Cmnd 8092-1). Its conclusions as to the powers of the police on arrest are stated at p 11, para 29 of the report as follows:

    "The law on whether a constable has power to search the premises of an arrested person is not certain. He is empowered to search areas under the immediate control of the prisoner, as the right to search on arrest described in paragraph 27 [the power to search the arrested person] suggests. This certainly covers the room in which he was arrested. Beyond this the law is unclear. There does, however, seem to be a right on arrest to search the premises of the arrested person even if the arrest took place elsewhere. But such a search is unlawful if there is no connection between it and the offence for which the prisoner was arrested."

The authority for the point made in the last sentence is to be found in the judgment of Widgery CJ in Jeffrey v Black [1978] QB 490, 497C. The fact that the law on whether a constable has power to search the premises of an arrested person was thought in 1981 by the Royal Commission to be uncertain supports the view which I myself have formed as to the state of the law at that time.

    21. The Report of an Interdepartmental Working Party, A Review of the Law and Practice of Extradition in the United Kingdom (Home office, May 1982) contains this observation, at p 65, para 11.6:

    "Section 6(5) of the Fugitive Offenders Act 1967 provides that "Where a warrant is issued … for the arrest of a person accused of an offence of stealing or receiving stolen property or any other offence in respect of property, a justice of the peace in any part of the United Kingdom shall have the like power to issue a warrant to search for the property as if the offence had been committed within the jurisdiction of the justice." The absence of any equivalent provision from the Extradition Act 1870 for many years deprived the police officer seeking to execute a warrant of arrest of the reassurance available from being armed at the same time with a search warrant. However the problem is now adequately dealt with by section 26(1) of the Theft Act 1968, read with section 24(1) of the same Act. These would permit a justice of the peace to issue a search warrant in extradition or fugitive offender cases, and we therefore find it unnecessary to provide specific powers of search in new extradition statute."

It is of some interest to see that the working party recognised that there might be a problem if the police officer was not armed with a search warrant, and that it had now been adequately dealt with by the power to issue a search warrant which is contained in section 26(1) of the Theft Act 1968. It was noted at p 64, para 11.3 of the report that a sizeable proportion of requests made to the United Kingdom relate to offences such as theft and fraud, and that it was not uncommon for property discovered during searches carried out on or after the fugitive's arrest to be exhibited to the court during extradition proceedings and surrendered to the requesting country with the fugitive. The assumption appears however to have been, as the discussion in para 11.6 indicates, that a search of premises for property in extradition cases would require the issue of a search warrant.

Scottish practice

    22. My noble and learned friend, Lord Rodger of Earlsferry has drawn attention to the fact that when a sheriff in Scotland grants a warrant to search for and to arrest an accused he also, as a matter of routine, grants a warrant to search the house or the premises where the accused is found. In Renton & Brown's Criminal Procedure, 6th edition, para 5.03 it is stated that complaint and petition warrants normally include warrants to arrest and search the person of the suspect, his dwelling-house, repositories and the place where he is found. A helpful discussion of the practice is to be found in Sheriff Charles N Stoddart's book, Criminal Warrants, 2nd ed (1999), paras 1.09 - 1.12. In para 1.12 he points out that the sheriff has power in summary cases, on a complaint under the Criminal Procedure (Scotland) Act 1995 being laid before the court, to grant all competent warrants under section 139(1) of that Act. This subsection includes a power "to grant warrant to search the person, dwelling-house and repositories of the accused and any place where he may be found for any documents, articles or property likely to afford evidence of his guilt of, or guilty participation in, any offence charged in the complaint, and to take possession of such documents, articles or property": section 139(1)(c).

 
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