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Extradition Search is Lawful, Lords Say Common Law Power Still Available
R (Rottman) v Commissioner of Police of the Metropolis and Another
House of Lords (2002) The Times, 21 May
Keywords
Power of seizure at common law; Police and Criminal Evidence Act 1984, s. 18; Extradition Act 1989, s. 8; European Convention on Human Rights, Art. 8; common law not extinguished
In the Queen's Bench
In R (Rottman) v Commissioner of Police of the Metropolis and Another (2001) EWHC Admin 576; (2001) The Times, 26 October, the Queen's Bench Divisional Court decided that police powers of search were limited. It said:
There was no common-law provision additional to section 18 of the Police and Criminal Evidence Act 1984 by which police might enter and search premises without a warrant subsequent to an arrest. Even the power in section 18 did not apply where the arrest was undertaken to facilitate extradition.
The Divisional Court went on to say that s. 17 of the Police and Criminal Evidence Act 1984 only conferred power to enter and search premises for the purpose of executing a warrant of arrest. Since R was arrested outside his front door, the police had no authority under s. 17 to go further. Section 18 did not cover extradition crimes. Similarly s. 19 did not give police officers power to seize items found at premises when they were not investigating an offence alleged to have been committed in the jurisdiction. Therefore the search and seizure were not lawful
under PACE. Parliament intended to provide in s. 18 in codified form for the full extent of a constable's powers to enter and search premises after an arrest, and intended it to be limited to domestic offences. There was a consequential breach of article 8(1) of the European Convention. The claimant was entitled to declarations accordingly and to delivery up of the seized items. (Section 32 of PACE was not relied upon.)
However, the House of Lords have allowed an Appeal holding that a police officer who had arrested a person on his premises pursuant to a warrant of arrest issued under s. 8 of the Extradition Act 1989 had power under the common law to search those premises for, and to seize, items that he reasonably believed to be material evidence in relation to the extradition crime in respect of which the warrant had been issued.
The facts
The defendant was suspected of an offence of fraud in Germany. A provisional warrant for his arrest was issued pursuant to an application for his extradition. During the course of a surveillance operation he was seen in a car with his family entering the driveway of a property in High Wycombe. He was arrested a few yards from the front door. A short time later two German police officers arrived, one of whom asked the English officers to carry out a search of the premises suspecting that computers in the property might contain evidence of fraud. A Detective Sergeant decided to exercise his powers under PACE, s. 18(5). Property including the computers was seized.
The Queen's Bench Divisional Court's view
In the Divisional Court Lord Justice Brooke said that in R v Governor of Pentonville Prison, Ex p. Osman [1990] 1 WLR 277 Lord Justice Lloyd had said:
Is there 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.
His Lordship found it impossible to interpret Part II of the 1984 Act as providing any saving for the common-law power identified in Osman.
Parliament intended s. 18 to provide in codified form for the full extent of a constable's power to enter and search premises after an arrest, for the purposes identified in that section, and intended it to be limited to police inquiries into domestic offences. His Lordship was satisfied that the common-law power of search which was identified in Osman was extinguished when Part II came into force. The police possessed no statutory power of entry and search without a warrant outside the four corners of the Act and the Act gave them no such power in an extradition context.
The House of Lords' view
However, in the Lords Lord Hutton said that the Divisional Court had held that the common-law power of search and seizure following an arrest had been extinguished by the Police and Criminal Evidence Act 1984 and that the relevant provisions in that Act did not extend to extradition offences.
Common-law power before 1984 Act
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 the person and seize any articles which he found on him, or which were present in the room where he was arrested, that he reasonably believed to be material evidence against him for the purpose of preserving that evidence until trial.
Lord Denning, Master of the Rolls, in Ghani v Jones [1969] 3 All ER 1700, and Lord Justice Lloyd, in R v Governor of Pentonville Prison, Ex p. Osman [1990] 1 WLR 277, 311, held that the common-law power permitted a police officer who had entered a house and arrested a suspect pursuant to a warrant of arrest to search the entire house and seize any articles which provided evidence against the suspect.
Osman held that the power applied to an extradition crime as well as a domestic crime. Counsel for Rottman had submitted that the common-law power had been too widely stated in those cases and that it was confined to seizing articles in the room where the suspect was present at the time of his arrest and did not extend to searching and seizing articles in the remainder of the house.
His Lordship was unable to accept that submission. Suppose after an attack on another person with a knife the police had pursued the attacker, carrying a knife, and had seen him enter his house through the front door and run through the hall into the kitchen, and the police had then entered the kitchen through the back door and arrested him but found no knife in the kitchen. To hold that the police had no power to then go into the hall and, on finding that the suspect had put down the knife in the hall, seize it, would be contrary to good sense.
The common-law power was correctly stated by Lord Denning and Lord Justice Lloyd and was a legitimate extension of the previous case law. His Lordship added that it would be artificial to draw a distinction between a house and its grounds in relation to the power to search following an arrest of a suspect on his premises. Counsel for Rottman had submitted that even if the common law did permit such power of search and seizure it should have been restricted to domestic offences and not have been extended to extradition offences. His Lordship also rejected that submission.
The effective combating of international crime was as important as the effective combating of domestic crime. If material evidence in the house of the suspect was not seized at the time of his arrest, the risk of it disappearing soon after the arrest existed whether the arrest was for an extradition or domestic crime.
Provisions of 1984 Act
Counsel for the Commissioner had submitted that, in addition to the common-law power, the police had power under both ss 18 and 19 of the 1984 Act to search the claimant's house and seize the articles. His Lordship would reject the argument that the police had power under either section. Section 18 applied only to the premises of a person under arrest for an arrestable offence which, as defined in s. 24(1), was a domestic offence. Section 19(3)(a), too, applied only to domestic offences. The power of search under s. 32(2)(b) was also confined to a domestic offence.
Turning to whether the 1984 Act had extinguished the common-law power, the Divisional Court had stated that it was impossible to interpret Part II of it as providing any saving for the common-law power identified in Osman.
Had the 1984 Act saved the common-law power, or extinguished it?
It was a well-established principle that a rule of the common law was not extinguished by a statute unless the statute made that clear by express provision or clear implication. Sections 18 and 19 of the 1984 Act were confined to domestic offences and his Lordship did not consider that the provisions of that Act led to the conclusion that Parliament intended to revoke the common-law power exercisable after the execution of a warrant of arrest for an extradition offence.
Common law not extinguished
Accordingly, the common-law power of search and seizure after the execution of a warrant of arrest issued pursuant to s. 8(1)(b) of the 1989 Act was not extinguished by the 1984 Act and the police officers had been entitled to exercise that power after the arrest of the claimant.
The common-law power of search and seizure after arrest did not violate the claimant's rights under Article 8 of the Human Rights Convention. It was in accordance with the law which was clearly stated in Osman. The power had the legitimate aim in a democratic society of preventing crime and was necessary in order to prevent the disappearance of material evidence after the arrest of a suspect.
The power was proportionate to that aim because it was subject to the safeguards that it could only be exercised after a warrant of arrest had been issued by a magistrate or justice of the peace in respect of an extradition crime and where the evidence placed before him would, in his opinion, justify the issue of a warrant for the arrest of a person accused of a similar domestic offence.
Lord Hope (dissenting judgment), agreeing that ss 18, 19 and 32 did not apply where a person was arrested under a provisional warrant for an extradition offence, said that the common-law powers available when effecting an arrest did not extend to a search of the premises for evidence, that in any event the power did not apply on an arrest on a provisional warrant and that the interference with the claimant's Article 8 rights had not been proportionate
The Decision
The question required to be answered by the court was: does the power contained in s. 18 of the Act constitute an extension to police powers, or does the 1984 Act extinguish the common law?
As well as having specific powers of seizure under various enactments, the police have always held powers of seizure at common law. Prior to the 1984 Act coming into force it was settled law, Ghani v Jones [1969] 3 All ER 1700; Elias v Passmore [1934] All ER Rep 380, [1934] 2 KB 164, that where the police are searching premises under a warrant, or have arrested a person lawfully, or entered premises lawfully, they may seize articles found on his person or on his premises that they reasonably believe to be evidence of the offence for which he was arrested or other offences.
In respect of seizure, s. 18 of the Act does nothing more than restate common-law principles in a clearer form. Reference in the section to searching premises 'controlled by a person who is under arrest' seemingly constitutes an extension to the former law which was readily identifiable with searching the home only of an arrested person. Clearly, s. 18 extends beyond that and will authorise, for example: a police officer to search the school of a headmaster arrested for indecency offences, or for misappropriation of school funds; or both the home and the shop premises of a person arrested for receiving stolen cigarettes. At common law there was no coercive power of entry. By virtue of s. 18, entry can now be effected to the premises specified without the consent of the occupier/person in control of them and, indeed, against his will. Reasonable force may be used in the exercise of the power.
The facts of Ghani and Others v Jones were that in order to justify the taking by the police of an article when no one has been arrested or charged, the following requisites must be satisfied:
(a) the police must have reasonable grounds for believing that a serious offence has been committed;
(b) the police must have reasonable grounds for believing that the article in question is either the fruit of the crime, or the instrument by which the crime was committed, or is material evidence to prove commission of the crime;
(c) the police must have reasonable grounds to believe that the person in possession of the article committed the crime, or is implicated in it, or is accessory to it, or at any rate his refusal must be quite unreasonable;
(d) the police must not keep the article, or prevent its removal for any longer than is reasonably necessary to complete their investigations or preserve it for evidence;
and
(e) the lawfulness of the conduct of the police must be judged at the time, and not by what happens afterwards.
(Dictum of Horridge J, in Elias v Pasmore [1934] All ER Rep, disapproved; R v Waterfield, R v Lynn ([1963] 3 All ER 659, doubted.)
In the course of investigating a suspected murder the defendant, a police officer, went to a house where the plaintiffs lived. The first plaintiff invited the defendant and another police officer to enter the house. The police asked questions about the disappearance of the person whom they believed to have been murdered and searched the house. The police asked for their passports and were handed the passports issued to the first and second plaintiffs. The police took these away and also took some letters. At a later date the police returned and asked for, and were handed, the third plaintiff's passport. The police retained the passports and letters asserting that they believed that the inquiries that they were pursuing would lead to the apprehension of those concerned in the murder and that, in the event of charges being preferred, some of the passports and letters would be of evidential value and others of potential evidential value.
Held - The defendant was not entitled to retain the passports and letters since it had not been shown that these were material evidence to prove the commission of the murder, nor had it been shown that the police had reasonable grounds for believing that the plaintiffs were in any way implicated in a crime or accessory to it; furthermore the passports and letters had been kept long enough. (Decision of Talbot J affirmed.)
Comment
Some s. 18 PACE cases
In R v Badham [1987] Crim LR 202 the defendant was convicted of obstructing a police officer. The defendant's two sons had been arrested earlier that day outside the defendant's house. A few hours later the arresting officer obtained authorisation from an inspector to search the defendant's house. The inspector made an entry in his notebook of the authorisation having been given. When the officers attempted to search the defendant's premises he demanded to see the authority for the search and refused the officers entry. Entry was forced. At the magistrates' court the Crown contended that the entry made in the notebook was sufficient to satisfy the requirement in s. 18(4) that the power of entry and search under s. 18(1) must be authorised in writing by an officer of the rank of inspector or above. It was further argued by the Crown that the police were empowered to enter and search under s. 32(2)(b) which provides for search upon arrest.
It was held, allowing the appeal:
(1) The police inspector having given verbal authorisation, the making of the note in his note book was only a record of the verbal authorisation. To constitute a written authorisation it must be an independent document;
(2) The heading for s. 32 is 'Search upon arrest'. Had the police gone to the defendant's house at the time of his son's arrest they would have been within s. 32(2)(b). Although the Act specified no time limit, the right was an immediate power. It may have been possible to have relied upon s. 18(1), but the police did not seek so to do.
In R v DPP, ex p. Odewale Unreported Case no. CO/138L00 QBD, May LJ, Jackson J, 28.11.00, the defendant was charged with assaulting a police officer in the execution of his duty. During the course of the execution of a search warrant at the defendant's address, under PACE, s. 18, the defendant became agitated and started swearing. After the search was completed a police officer took hold of his arm in order to escort him from the premises. The defendant turned and kneed the officer in the groin. A struggle ensued. The defendant was arrested and taken to the police station. Notwithstanding the fact that no evidence was called on the point, the magistrates held that there was sufficient evidence that the defendant had originally been lawfully arrested and that therefore the police were acting in the course of their duty at the time of the assault.
It was held, allowing the appeal, there was no evidence as to the offence for which the defendant was arrested. It was not possible for the justices to decide whether or not the offence was an arrestable offence. The bare assertion that the search was conducted pursuant to s. 18 did not support the inference that the defendant had been lawfully arrested. DPP v Riley followed.
In Linehan v DPP [2000] Crim LR 861 QBD the defendant was convicted of two charges of assaulting a constable in the execution of his duty contrary to the Police Act 1996, s. 89(1). Police officers having arrested the defendant's son had attended at his address in order to conduct a search under PACE, s. 18. They identified themselves and requested entry. The defendant asked them to slide their warrant under the door. The officers refused but offered to show it at a nearby window. The defendant refused to come to the window. He was warned that they would force the door and proceeded to do so. The defendant threw liquid through the door striking two of the officers in the face. It was submitted that there were breaches of the Codes of Practice, Codes D5.4, B5.5 and 5.7.The justices convicted and the defendant appealed by way of case stated.
Held allowing the appeal, the issue was whether the officers may be said not to have acted in the execution of their duty by virtue of the fact that no proper explanation was given of the reason for their intention to enter and search the premises. It was not clear from the case stated that any such explanation had been given. It follows that the justices were not entitled to find that the officers were acting in the execution of their duty.
In Krohn v Director of Public Prosecutions 18 March 1997, unreported, [1997] COD 345, (1997) Official Transcript 2982, the central question which arose for decision on the appeal was whether the failure by a senior police officer to make a record in writing of the grounds for searching the defendant's flat and the nature of the evidence that was sought rendered unlawful the subsequent entry by police officers into his flat.
It was held that the premises must as a fact, or perhaps as a matter of mixed fact and law, be occupied or controlled by the person under arrest if the search is to be lawful. A senior officer cannot make lawful that which is unlawful simply by granting his authority. While the authorisation requirements of s. 18 are mandatory, a failure to comply with them fully (as by not specifying precisely the grounds of the search and the property to be searched for) will not necessarily render the search unlawful. While the section is to be obeyed, the court will, in determining the consequences of any breach, have regard to whether the failure to record prejudiced the person arrested.
Rob Jerrard