Regina v Commissioner of Police for the Metropolis, Ex P Rottman
23. I am inclined to think that these aspects of Scottish practice, founded as they are upon the granting of warrants which give express power to search and on the exercise of powers which are given to the sheriffs by statute, are of little assistance when one is considering the common law of England on the question of the powers of a police officer who is effecting an arrest under an arrest warrant or otherwise lawfully but has no warrant to search. It is perhaps worth noting also that the power of search which the sheriffs give extends not only to the house or premises where the suspect may be found but also to his repositories and domicile or, as section 139(1) of the 1995 Act puts it, to his "dwelling-house and repositories". This goes further than, in Jeffrey v Black  QB 490, 499C-D, Forbes J was willing to accept was the position in England under the common law.
24. As it happens, however, the common law of Scotland is not entirely silent on this issue. It remains relevant where a person is detained by a constable for questioning at a police station under section 14 of the Criminal Procedure (Scotland) Act 1995. Section 14(7)(b) provides that in that event a constable may "exercise the same powers of search as are available following an arrest".
25. As to what those powers are, reference may be made to Adair v McGarry, 1933 JC 72, where the question was whether a police constable was entitled, without the warrant of a magistrate, to take the fingerprints of a man whom he had apprehended. Lord Justice General Clyde said, at p 78:
Similar observations are to be found in the opinions of Lord Justice-Clerk Alness, at p 80, Lord Sands, at p 88 and Lord Morison, at p 89.
26. Lord Hunter, who dissented in that case, explained his views on this matter in these words, at p 85:
27. The fact that Lord Hunter was willing to acknowledge that the police would be entitled "in certain cases" to examine the contents of the premises in which the arrest took place is of some significance. But this point was not developed by the other judges in that case. It has not been the subject of later decision in any Scottish court. No doubt this is because the usual practice of granting a warrant to search the premises of the suspect when a warrant for his arrest is granted has made it unnecessary to deal with it. I am not aware of any case where the reference in section 14(7)(b) of the 1995 Act to "the same powers of search as are available following an arrest" has been held to extend to a search of the premises for evidence. If symmetry between England and Scotland in this matter is desirable - and I think it is, as the 1989 Act is a United Kingdom statute and section 8(1) applies to Scotland without modification - it is of some importance to note that it would be contrary to current practice in Scotland, and to the current state of the authorities, for a constable who was in possession of a provisional warrant of arrest issued under that section to carry out a search of premises for evidence without the person's consent or the authority of a search warrant.
Does the common law power extend to extradition cases?
28. Lloyd LJ's observation in R v Governor of Pentonville Prison, Ex p Osman  1 WLR 277, 311H that the police powers of search and seizure consequent on a lawful arrest ought to be, and are, the same in the case of an arrest under a provisional warrant and an arrest in a domestic case is attractive at first sight. There are good reasons on grounds of public policy for the provision of mutual assistance between states in the detection and punishment of crime. But I do not agree that the position which applies in domestic law can be equated so readily with that which applies in extradition cases.
29. One important difference between domestic cases and extradition cases lies in the fact that the procedure which applies in extradition cases depends upon there having first been a request. Section 7(1) of the Extradition Act 1989 provides that a person shall not be dealt with under Part III of that Act except in pursuance of an order of the Secretary of State issued in pursuance of a request for the surrender of a person under the Act. Another important difference is that, except in the case of a request 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 1989 Act is concerned only with the arrest of the person whose extradition is being sought. Subject to that exception, the Act it is not concerned with the collection of evidence or property connected with the crime for which extradition is sought or with its surrender to the requesting country.
30. The provisions which enable the United Kingdom to co-operate with other countries in criminal proceedings and investigations are contained in a separate statute, the Criminal Justice (International Co-operation) Act 1990. Section 7(1) of that Act provides that Part II of PACE, in relation to powers of entry, seizure and search, 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. Section 7(2) gives power to a justice of the peace to issue a warrant to a constable to enter and search premises and to seize any evidence that is found there.
31. But these provisions are qualified by section 7(4) of the 1990 Act, which provides that no application for a warrant or order shall be made by virtue of subsection (1) or (2) except in pursuance of a direction given by the Secretary of State in response to a request received from an overseas court, tribunal or authority, and that any evidence seized by a constable by virtue of that section shall be furnished by him to the Secretary of State for transmission to that court, tribunal or authority. The fact that Parliament has laid down in these specific terms what is to be done by way of mutual assistance, and has provided that any such assistance must be preceded by a request, is important. It provides a strong indication that it is only on those conditions, except in cases covered by sections 24(1) and 26(1) of the Theft Act 1968, that powers of entry, search and seizure should be exercised in extradition cases for the purpose of seeking out and taking possession of evidence for use by the overseas court.
Conclusions as to the common law
32. For these reasons I would hold that the common law powers which are available to a police officer when effecting an arrest do not extend to a search of the premises where the person was arrested for the purpose of obtaining evidence. It is perhaps arguable that an exception might be made where there are compelling reasons in the public interest for carrying out a such a search, for example in cases of urgency. But in the present case the decision to search the house for evidence was not taken on grounds of urgency. It was taken because the police officer considered that he had power to conduct such a search under the common law, and also because he considered that PACE was available for the carrying out of a search in extradition matters. In my opinion the search was unlawful because it was undertaken without the respondent's consent and because the police had not obtained a search warrant.
33. In any event I would hold that any power which the police might have had to conduct a search of the house for evidence at common law did not apply in this case. The arrest was on a provisional warrant for an extradition offence. The sole purpose for which that warrant was granted was to bring the respondent before the court for committal with a view to his extradition to Germany. The police were not entitled, when effecting this arrest, to exercise the powers of search for evidence which would have been available to them had the arrest been for a domestic offence.
The article 8 Convention right
34. This brings me to the question whether what was done in this case constituted a violation of the respondent's rights under article 8 of the Convention. It is clear that searches of private premises infringe the article 8(1) right unless the conditions in article 8(2) are satisfied: Funke v France (1993) 16 EHRR 297. The wording of article 8(2) as applied to this case indicates that any interference with a person's right to respect for his private life, his home and his correspondence must satisfy two basic requirements. First, the interference must be "in accordance with the law". This means that it must satisfy the principle of legality. Secondly, it must be such as is "necessary" for the prevention of crime. This raises the question of proportionality.
35. It is well established that the principle of legality requires the court to address itself to three distinct questions: see The Sunday Times v United Kingdom (1979) 2 EHRR 245, 271, para 49; R v Shayler  2 WLR 754, 782, para 56. The first is whether there is a legal basis in domestic law for the restriction. The second is whether the law or rule in question is sufficiently accessible to the individual who is affected by the interference, and sufficiently precise to enable him to understand its scope and foresee the consequences of his actions so that he can regulate his conduct without breaking the law. The third is whether, assuming that these two requirements are satisfied, it is nevertheless open to the criticism on the Convention ground that it was applied in a way that was arbitrary because, for example, it has been resorted to in bad faith or in a way that is not proportionate.
36. For the reasons which I have already given, I consider that there was no settled basis in domestic law for the carrying out by the police of a search of the respondent's house for evidence of an extradition crime without his consent and without having first obtained a search warrant. In any event, it seems to me that, if there was an undoubted power of search at common law, the second and third requirements relating to accessibility, precision and lack of arbitrariness were not satisfied. In the absence of a search warrant the police had no clear authority for which they were doing. The power which they were purporting to exercise was unregulated, and it lacked adequate safeguards against abuse. No limits had been set for its exercise, as the purpose of their search had not been subject to prior review by any judicial officer. The absence of regulation was particularly significant in this case as the conduct alleged was not a domestic offence but an extradition crime. There was an obvious risk that items taken in the course of their search might extend beyond what was strictly necessary for the purpose of prosecuting that crime in the overseas court.
37. Turning to the question of proportionality, there is a general international understanding as to the matters which should be considered where a question is raised as to whether an interference with a fundamental right is proportionate: see de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing  1 AC 69, 80G-H per Lord Clyde; R (Daly) v Secretary of State for the Home Department  2 AC 532, 547A-B per Lord Steyn; R v Shayler  2 WLR 754, 783, paras 60-61. The first question is whether the objective sought to be achieved - a pressing social need - is sufficiently important to justify limiting the fundamental right. The second is whether the means chosen to limit that right are rational, fair and not arbitrary. The third is whether the means used impair that right as minimally as is reasonably possible.
38. I am in no doubt that the public interest in the detection and punishment of crime is a pressing social need which justifies some interference in the rights which a suspect has under article 8(1). The objective sought to be achieved in this case satisfies this requirement. But the principle of proportionality requires that any such interference must be rational, fair and not arbitrary. There must be adequate guarantees in domestic law to ensure that any such measures of interference will not be abused.
39. Here again what was done in this case seems to me to be open to criticism. In the absence of prior review by a judicial officer the exercise which the Metropolitan police were carrying out in this case appears to me indeed to have been arbitrary. They had no need to search the premises for the purposes of the extradition proceedings which were being conducted in this country. It is not a responsibility of the requested state, unless requested to do so by the requesting state, to look for evidence of the commission of the extradition crime. The only reason why the police proceeded to search the premises was because they were asked to do so by the German police officers, having spoken on the telephone to the public prosecutor. We can assume that the officers of the Metropolitan police by whom the search was conducted were not familiar with German criminal law and procedure. Two separate accounts have been given of the events that followed the arrest, and there is no agreement as to what precisely took place. But it seems likely that, when the Metropolitan police removed the computer equipment, computer disks and other property from the house, they were wholly dependent on the views of the German police officers as to what to look for and what to seize.
40. Where warrants to search are granted they are specific as to the purpose and limitations of the search. But in this case, as there was no such warrant, no systems were in place to ensure that the items which the police seized in the course of their search of the premises were confined strictly to those which were relevant to the prosecution of the extradition crime in the overseas court. It has not been suggested that it would have been impracticable for the Metropolitan police to apply for a search warrant in order to clarify the position before they undertook a search of the premises for any such evidence, or that what they did was done on grounds of urgency. As to whether it has been shown that the interference with the respondent's article 8(1) right was the minimum necessary, I consider that it must at least be open to question whether less intrusive and less arbitrary means could have been employed to meet the interests of justice in this case. For these various reasons I would hold that the interference with the respondent's Convention right was not proportionate.
41. I would answer the certified question in the negative and dismiss the appeal.
42. The question certified by the Divisional Court for the consideration of the House on this appeal by the Commissioner of Police for the Metropolis is as follows:
43. The certified question arises from the following circumstances. The respondent, Mr Michael Rottman, is a German businessman. A court in Germany issued a warrant for his arrest on 27 December 1996. The warrant contained an allegation that he and other persons committed offences of fraud in Germany. The allegation arose out of events dating back to 1990 and concerned Mr Rottman's alleged role in the purchase and subsequent asset-stripping of an East German power supply company by a Swiss shell company with which he was associated. The respondent left Germany at the end of 1995 and the German authorities believed that he had access to funds stolen from the East German company.
44. On 13 September 2000 the Metropolitan Police received a request from the German authorities, via Interpol, for the respondent's extradition to Germany. At that time it was known that he was somewhere in the south of England but his precise whereabouts were not known.
45. On 22 September 2000 a provisional warrant for the respondent's arrest was issued by the Bow Street Magistrates' Court under section 8(1) of the Extradition Act 1989 which provides:
The provisional warrant alleged conspiracy to defraud, which is an extradition crime as defined by section 2 of the 1989 Act. The information placed before the magistrates' court would have justified the issue of a warrant for the arrest of a person accused of such an offence in the United Kingdom.
46. The police carried out a surveillance operation and on 23 September 2000 the respondent was seen in Henley on Thames. The police followed him to his home, which was a large detached house set in its own grounds in Hazelmere, High Wycombe. The respondent was arrested pursuant to the warrant in the driveway of the house a few yards from its front door. It is not in dispute that the police were entitled under section 17 of the Police and Criminal Evidence Act 1984 ("PACE") to enter the grounds of the house to arrest the respondent pursuant to the warrant.
47. The account of the events that followed the arrest given by the three police officers of the Metropolitan Police Extradition Unit who were present differs to some extent from the account given by the respondent. The Divisional Court found it unnecessary to reconcile the differences between the two accounts. However, it appears to be clear that a short time after the respondent had been arrested two German police officers from the German Fugitive Unit arrived at the premises and asked Detective Sergeant Loudon, the senior Metropolitan police officer present, to search the house. The police then searched the house and seized a number of articles in it which they took away to New Scotland Yard. Detective Sergeant Loudon said in his evidence filed on behalf of the appellant that in making his decision to search the house he considered a number of factors. First, it was the accepted practice of police officers in the Extradition Unit that they were able to use common law powers to search the premises following the arrest of a person on an extradition warrant, although it usually happened that the person had been arrested within the physical structure of the premises in question. In this instance the respondent had been arrested a few yards from his front door, within the boundary of the property and, in his (the detective sergeant's) belief, on the premises. In addition, he had also read from various sources that PACE was available in extradition matters for the purpose of carrying out a search.
48. The respondent brought an application for judicial review against the appellant and the Home Secretary in respect of the decision by the police to enter his home in Hazelmere to search for and seize items.
49. The Divisional Court held in favour of the respondent and
(1) declared that the entry and search carried out by the police on 23 September 2000 were unlawful;
(2) declared that the respondent's rights under article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms had been violated;
(3) ordered that there be a Mandatory Order requiring the police to deliver up to the claimant all the items seized on 23 September 2000; and
(4) ordered that the respondent's claim for damages be adjourned for directions and a hearing before a single judge in the Administrative Court.
50. The certified question relates to the seizure of "any goods or documents which [the police officer] reasonably believes to be material evidence in relation to the extradition crime in respect of which the warrant was issued." Accordingly I will consider the issue on the basis that the items seized in the respondent's house were reasonably believed by the police officers to be material evidence in relation to the extradition crime alleged against the respondent. I will also assume that the question relates to search and seizure in the property in which the suspect has been arrested.
51. The Divisional Court in its judgment delivered by Brooke LJ held that the common law power of search and seizure following an arrest had been extinguished by PACE and that the relevant provisions in respect of search and seizure in PACE related only to domestic offences and did not extend to extradition offences.
The common law power before PACE
52. It was a well-established principle of the common law that on the arrest of a person pursuant to a warrant the police officer effecting the arrest could search that person and seize any articles which he found on him which he reasonably believed to be material evidence against him for the purpose of preserving that evidence until trial. It was clear that this power to seize also extended to articles which were present in the room where the person was arrested and of which he was in possession. In Dillon v O'Brien and Davis (1887) 16 Cox CC 245 the plaintiff was arrested pursuant to a warrant in a room of a house and the police officers effecting the arrest seized banknotes and papers in the room for the purpose of producing them as evidence in the prosecution of the plaintiff. The plaintiff sued the police officers for the wrongful seizure and detention of the banknotes and papers, and on a demurrer the Irish Exchequer Division held that the seizure was lawful and Palles CB stated, at p 249:
and at p 250:
The Chief Baron then held that the power of seizure arose on an arrest for a misdemeanour as well as on an arrest for a felony.
53. The judgments of the Court of Appeal in Chic Fashions (West Wales) Ltd v Jones  2 QB 299 were cited by counsel in their submissions to the House, although that case related to seizure in execution of a search warrant and not to search and seizure after execution of a warrant of arrest. The issue in that case was whether, when police officers entered premises pursuant to a search warrant to search for specified stolen goods, they were entitled to seize on the premises goods other than those specified in the warrant which they believed 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. The Court of Appeal held that the police officers acted lawfully in seizing such goods.54.
Ghani v Jones  1 QB 693 was also a case where there was no warrant of arrest. In that case the police, who believed that a woman had been murdered, searched without a warrant the house of her father-in-law and took certain documents including the passports of the father-in-law and other members of his family. The father-in-law and his family brought an action for the return of the documents and the High Court ordered their return and the order was upheld by the Court of Appeal. But in delivering his judgment in the Court of Appeal, in which Edmund Davies LJ and Sir Gordon Willmer concurred, Lord Denning MR considered the powers of the police to search and seize after executing a warrant of arrest and stated, at p 706: