Commissioner of Police for the Metropolis, Ex P Rottman, R v.

The House considered whether a constable executing a provisional arrest warrant issued under section 8 of the Extradition Act 1989 has a common law power to search the premises where the arrest takes place for material evidence relating to the extradition offence, and whether that power (if it existed) was displaced by the Police and Criminal Evidence Act 1984 (PACE). The majority held that, at common law, police officers effecting an arrest on such a warrant could search the premises of the person arrested for material evidence and seize items reasonably believed to be evidence, and that that common law power was not extinguished by PACE. The court held that the PACE provisions relied on (sections 17, 18, 19 and 32) do not extend to extradition offences and therefore did not displace the pre-existing common law power. The majority also rejected the argument that the common law power necessarily failed the Convention principle of legality or was disproportionate in the circumstances. A dissenting speech held that no such common law power extended to searches for evidence in extradition cases and that the search in this case violated article 8 of the European Convention on Human Rights.

The respondent, a German national, was arrested in the driveway of his house on a provisional arrest warrant issued under section 8 of the Extradition Act 1989. Shortly after arrest German police officers requested a search of the respondent's house; Metropolitan police officers entered and searched the premises and seized computer equipment and documents. The Divisional Court held the entry and search unlawful, found an article 8 Convention violation and ordered return of the seized items. The Commissioner of Police appealed to the House of Lords.

Nature of the claim: judicial review and declaration that the entry and search were unlawful; relief included delivery up of seized items and damages.

Issues framed:

• whether at common law a police officer executing a provisional extradition arrest warrant may search the premises where the arrest occurs for material evidence and seize such items;
• whether PACE (notably sections 17, 18, 19 and 32) displaced or governed any such common law power in extradition cases;
• whether any power exercised complied with article 8 of the Convention (legality, accessibility, precision and proportionality).

Reasoning and outcome: the majority concluded that historical practice, case law (including Ghani v Jones and Osman) and considerations of public policy supported a common law power to search premises on arrest to preserve material evidence and that Parliament had not clearly intended PACE to extinguish that power in extradition cases. The statutory provisions relied on were construed as confined to domestic offences; other statutory schemes govern international mutual assistance. The majority therefore held the search lawful and allowed the appeal. A dissenting opinion concluded there was no settled common law power to conduct such searches in extradition cases, that PACE did not permit the search, and that the search violated article 8 because it lacked prior judicial authorisation and adequate safeguards.

Appeal allowed. The majority held that common law powers exercised when effecting an arrest extend to searching the premises where the arrest took place for material evidence and seizing items reasonably believed to be material, and that those common law powers were not extinguished by PACE in respect of arrests under a provisional extradition warrant. The statutory powers in PACE were construed as confined to domestic offences and did not displace the pre-existing common law power. A dissenting Lord held the opposite and would have dismissed the appeal on article 8 grounds.

Divisional Court (Queen's Bench Division) held the entry and search of 23 September 2000 unlawful, found an article 8 violation and ordered delivery up of seized items. Appeal to the House of Lords resulted in this judgment [2002] UKHL 20.