University of Arkansas System
Type of paper: Thesis/Dissertation Chapter
The material facts of the case:
The Metropolitan Police received a request from the German authorities for the issuance of a warrant for Mr.Rottman’s extradition, a German business man, who was alleged of committing an offence of conspiracy to defraud in his indigenous country. Bow street magistrates’ court issued a provisional arrest warrant under s8(1)(b) of the Extradition Act 1989. Mr. Rottman was arrested in the driveway of the house, a few yard from the front door. Soon after his arrest, two German polices obtained the permission from the senior police officer present to search the house and seized a number of articles which they took to the New Scotland Yard. Mr. Rottman then bought judicial review proceedings against the legality of the decision to enter his home and to search for and seize items. Divisional court found in favour of Mr. Rottman, held that the entry and search the house carried out by the German polices had been unlawful and his rights under Art 8 of the European Convention on Human Right(ECHR) had been violated. The divisional court rejected the decision in R v Governor of pentonville Prison ex p Osman that the power of search and seizure after a lawful arrest applied to extradition cases as to a domestic crime. The old common law pursuant to search and seizure had been abolished by PACE when it is given to affect. There is no power either statutory or common law to carry out a search of premises following the arrest made pursuant to the provisional warrant executed under s8(1) under the extradition act.
Ratio of the case:
A statute does not extinguish a common law rule unless the statute makes this clear by express provision or by clear implication. The common law power would have been supplemented by but not replaced by the statutory powers in PACE. Nor was it in breach of article 8 of the ECHR as long as the search and seizure was proportionate to the legitimate purpose of preventing crime.
The House of Lord challenged the issue on general public authority which was certified by Divisional Court that – “At common law, does a police officer executing a warrant of arrest issued a pursuant to section 8 of the Extradition Act 1989 have power to search for and seize any goods or documents which he reasonably believes to be material evidence in relation to the extradition crime in respect of which the warrant was issued?”
Two argument were raised per curiam: 1) whether before the enactment of PACE police officer would have had a common law power to search the suspect’s premises when arresting him for an extradition crime under warrant; and 2) whether any such common law power of search had been extinguished by PACE thereafter.
It was a well established common law principle that police officer carrying out arrest in or on a person’s premises could search and seize any articles which he reasonably believed to be material evidence against him for a purpose of preserving that evidence until trial. It was further agreed that the powers to search and seize also extended to article presented in the room where the suspect was arrested. The lords upheld Lord Denning’s judgment in Ghani v Jones that the common law power extended to entire premises upon which the alleged was arrested. In support with a wider search power,Lloyd LJ gave the judgment in R v Governor of Pentonville Prison, ex p Osman, considered that the power of search and seizure after a lawful arrest applied to extradition cases as well as to a domestic offence.
Summary of Lord Hutton’s reasoning:
Lord Hutton gave the leading judgment. He rejected the argument advanced by Rottman that the power had been too widely stated by Lord Denning. He subsequently rejected the submission the existence of statutory power in s7 of 1990 Act implied that there was no common law power in extradition cases. He upheld that the common law power of search and seizure was not extinguished by PACE, supplemented that “it is well-established principle that a rule of the common law is not extinguished by a statute makes this clear by express provision or by clear implication.” A power to seize material evidence is necessary when a suspect was arrested, it was not apply for a search warrant.
In terms of the alignment of Article of the ECHR, Lord Hutton’s opinion was that the common law power of search and seizure did not violate the appellant’s right under Article 8 of the European Convention on Human Rights. It was in accordance with the law which was clearly stated in Osman that the power had the legitimate aim in a democratic society of preventing crime and was necessary to prevent the disappearance of material evidence after the arrest of suspect. The power was proportionate to that aim because it was subject to the safeguard that it could only be exercised after a warrant of arrest had been issued by a magistrate.
Summary of Lord Rodger’s reasoning:
He was supportive of Lord Hutton’s opinion that PACE does not extinguish the common law power of search of police officers executing an arrest warrant. Parliament left them deliberately with those common law powers and left arrested persons with the corresponding law safeguards. When the police officers in the case arrested the respondent, they were entitled to exercise those common law powers and equally, the respondent enjoyed the safeguards afforded by the common law. The research of his house was accordingly lawful.
Summary of Lord Nicholls and Lord Hoffman’s reasoning:
They both gave little reasoning to the ruling. They largely agreed with the judgment from Lord Hutton that a where a police officer entered a house with or without an arrest warrant and arrested a suspect he enjoyed a common law power to search the house and seize any goods that he reasonably believed to be a material evidence.
Summary of Lord Hope’s reasoning:
He dissented the majority of ruling by Lord Hutton and others that the powers which are available to police officer at common law where he is in possession of an arrest warrant. He claimed that the statutory powers under PACE were not available that in the absence of the common law power, it is unlawful that the entry and search of the house violate the respondent’s right under the Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
He also disagreed that the extradition cases could be equated with domestic ones. He expressed that any power which the police might have did not apply to arrests on a provisional warrant for an extradition offence. Extradition required an order of the Home Secretary issued in response to a request by the foreign state. And there was no common law paper of arrest for the purposes of extradition. Also the Extradition Act granted powers of search and seizure in very limited cases.
He claimed that the extradition always requires a request that there is no common law power entitling an officer, for the purposes of extradition, to make an arrest without a warrant.
By the majority of 4:1, excepts Lord Hope dissenting, the appeal was allowed. The House held that the commissioner of police who had arrested a person in or on his premises, executing a warrant of arrest issued pursuant to s8 of the Extradition Act 1989 had the common law power to search for and seize any articles which he reasonably believes to be material evidence in relation to the extradition crime.
On the whole, this is a strong case as the majority of the judges held the appeal that the power of search to the police is more stringent in extradition cases than domestic cases. This in turn make a clear pictures to the commissioner of police in the region that they knows how and when to apply the rule without any violation to the ECHR.