Hewitson v Dorset Police & Anor

The common law permits police officers executing an extradition arrest warrant to search and seize evidence within the limits identified by Rottman. Those limits cannot be extended by a substantial judicial leap merely because evidence may be preserved. Physical separation from the premises, delay after arrest and the arrested person’s limited connection with the premises may place a proposed search outside the common law power. A search lacking statutory and common law authority is unlawful and may justify return of property and damages marking the illegality.

The claimant challenged the search of a flat in Poole and the seizure of his property after his arrest under a United Kingdom warrant issued for extradition proceedings relating to alleged cannabis offences in France. The police purported to act under section 32 of the Police and Criminal Evidence Act 1984, but later relied on common law powers.

The claimant was arrested in a nearby road approximately two hours and ten minutes before the search began. The flat was rented by another person, although the claimant sometimes stayed there and kept belongings there. The central issue was whether the search was authorised by statute or by the common law powers recognised in Ghani v Jones, R v Governor of Pentonville Prison Ex p Osman and R (Rottman) v Metropolitan Police Commissioner.

1. Search unlawful. The court held that the police had no statutory or common law power to search the flat or seize the claimant’s property. The claim therefore succeeded.
2. Statutory powers. Sections 17, 18 and 32 of the Police and Criminal Evidence Act 1984 regulate domestic arrests and searches, but do not apply to a person arrested for extradition proceedings concerning offences allegedly committed overseas. The police’s mistaken reliance on section 32 did not determine the case.
3. Common law limits. The court treated R (Rottman) v Metropolitan Police Commissioner as the authoritative statement of the relevant common law. The recognised power was not wide enough on these facts. The claimant was not arrested at the premises, the search began two hours and ten minutes later, and the flat was not his home, although he had some connection with it.
4. No substantial extension. The common law has developed incrementally to preserve evidence after lawful arrest. It also protects private property against arbitrary intrusion. Article 8 of the European Convention on Human Rights reinforced that principle. Extending the power to permit a search of another person’s flat merely because the claimant had been arrested nearby would be a substantial leap and was not justified by Rottman.
5. Remedies. A mandatory order was made for return of the seven outstanding items identified in the police letter of 30 April 2003, but not for money held by the Asset Recovery Unit. General damages of £100 were awarded to mark the illegality of the wrongful seizure and detention. The claimant received his costs against the Chief Constable.

First instance judicial review proceedings in the Divisional Court of the High Court. No prior appellate decision is stated in the judgment.