Regina v Commissioner of Police for the Metropolis, Ex p Rottman

A constable who arrests a person in or on that person's premises under a provisional extradition warrant may, at common law, search those premises and seize goods or documents reasonably believed to be material evidence of the extradition crime. That power applies to extradition as well as domestic crime and extends to an arrest in the grounds of the person's home.

The relevant search powers in Police and Criminal Evidence Act 1984 apply only to domestic offences and do not extinguish the surviving common-law power. Section 17(5) abolishes common-law powers of entry to arrest; it does not abolish powers to search for evidence after arrest. The resulting interference with the home is lawful and proportionate under article 8 where it is confined by the arrest warrant and directed to preserving material evidence.

German authorities sought the respondent's extradition for alleged fraud. A provisional warrant was issued under section 8(1) of the Extradition Act 1989. Metropolitan Police officers arrested him in the driveway of his home. At the request of German police officers, they then searched the house and seized documents and computer-related items believed to be evidence of the alleged extradition crime.

The Divisional Court declared the entry and search unlawful, found a breach of article 8 of the Convention, ordered delivery up of the seized items, and adjourned the damages claim. The Commissioner appealed on a certified question: whether the constable executing the extradition arrest warrant had a common-law power to search for and seize material evidence of the extradition crime.

1. Appeal allowed by a four-to-one majority. Lord Hutton gave the principal speech. Lord Rodger agreed and gave additional reasons. Lords Nicholls and Hoffmann agreed with both speeches. Lord Hope dissented on the existence and scope of the common-law power.
2. Per Lord Hutton, before PACE a constable who lawfully arrested a suspect under a warrant could search the suspect's premises and seize material evidence. The power was not confined to the room of arrest. It was a legitimate development of the common law stated in Ghani v Jones [1970] 1 QB 693, and it extended to an arrest for an extradition crime. It applied where the arrest occurred in the grounds as well as inside the house.
3. The House held that sections 18, 19 and 32 of the Police and Criminal Evidence Act 1984 did not authorise the search. Their references to an arrestable offence or an offence were confined to domestic offences. However, PACE did not expressly or by necessary implication abolish the common-law power applicable to extradition arrests. Per Lord Rodger, section 17(5) abolished common-law entry powers for the purpose of arrest only; it did not concern a search for evidence after arrest.
4. Per Lord Hutton, the search was in accordance with law for article 8 purposes. The power served the legitimate aim of preventing the loss of material evidence. It was proportionate because it followed the issue of an extradition arrest warrant by a judicial officer upon the statutory threshold for such a warrant.
5. The certified question was answered yes. The Divisional Court's order was set aside.

• House of Lords: allowed the Commissioner's appeal and answered the certified question affirmatively: [2002] UKHL 20 .
• High Court, Divisional Court: held the house search unlawful, declared a violation of article 8, ordered delivery up of the seized items, and adjourned the damages claim. Its decision was set aside.