England and Wales High Court (Administrative Court) Decisions

Queen on the application of MICHAEL ROTTMAN v. COMMISSIONER OF POLICE FOR METROPOLIS and SECRETARY OF STATE FOR HOME DEPARTMENT [2001] EWHC Admin 576 (24th July, 2001)

Case No: CO/4611/2000
Neutral Citation Number: [2001] EWHC Admin 576
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Tuesday 24th July 2001

20. An arrestable offence is interpreted pursuant to section 24(1) of the Act as an offence for which the sentence is fixed by law, an offence for which a person of 21 years of age or over (not previously convicted) may be sentenced to imprisonment for a term of five years (or might be so sentenced but for the restrictions imposed by section 33 of the Magistrates' Courts Act 1980) or one of a long list of statutory offences under the law of England and Wales. It is not open to us, in my judgment, to use interpretative sleight of hand to extend the meaning of arrestable offence to include extradition crimes or arrestable offences under the law of some other country. Although section 18(5) permits a constable to conduct a search in certain circumstances without prior written authority from an officer of the rank of inspector or above (see section 18(1)), such a search would be "a search under subsection (1)", and this, as I have said, is concerned only with domestic offences.
21. I turn to section 19, on which Mr Perry places most reliance in this part of his argument, in case I am wrong about the distinction between sections 18 and 19. It is necessary to consider section 19 in some detail. It reads, so far as is material:

22. Miss Montgomery QC relied strongly on a decision of this court in R v Sorsky Defries (COT 6 July 1995) in support of her contention that section 19 of PACE does not, without more, give our police officers power to seize items found at premises which they have lawfully entered when they are not investigating an offence alleged to have been committed in this jurisdiction.
23. In Sorsky Defries complaint was made, among other things, about the seizure of documents which fell outside the scope of a search warrant issued by a circuit judge under section 9 and Schedule 1 of PACE, following a direction by the Secretary of State made pursuant to section 7(4) of the Criminal Justice (International Co-operation) Act 1990. The search requested by the United States authorities related to alleged money laundering offences committed in that jurisdiction.
24. This court accepted the submission that the words "in relation to ... any other offence" in section 19(3) of the Act could not refer to an offence committed in the United States on the basis that in the absence of express words to the contrary, "offence" means a domestic offence: see Cox v Army Council [1963] AC 48; Air India v Wiggins [1980] 1 WLR 815; and Macleod v the Attorney-General of New South Wales [1891] AC 455 per Lord Halsbury LC at p 458:

"All crime is local. The jurisdiction over the crime belongs to the country where the crime is committed."

25. McCowan LJ, with whom Waller J agreed, was influenced by the fact that express provision was required in section 7(1) of the Criminal Justice (International Co-operation) Act 1990 to prescribe that Part II of PACE was to have effect as if references to serious arrestable offences in section 8 and Schedule 1 of PACE included any conduct which was an offence under the law of a country or territory outside the United Kingdom and would constitute a serious arrestable offence if it had occurred in any part of the United Kingdom. He went on to say:

"That section to my mind confirms the view that without that amendment those offences (sic) would not have covered offences outside the UK. That very provision militates against a construction that allowed `offence' elsewhere in Part II of the 1984 Act to include a foreign offence."

26. Mr Perry was quite properly unable to advance any argument to the effect that an English police constable could be taken to have any power, after entering premises to arrest a man on a provisional warrant issued under the Extradition Act, to seize anything on those premises which he had reasonable grounds for believing to be evidence in relation, not to the offence which he was investigating, but to any other offence committed anywhere in the world, of whatever level of seriousness. He was therefore constrained to argue that the words "or any other offence" must be notionally excised from section 19(3)(a) in circumstances such as those that obtained in Magnolia Dene that day. He then encountered a further difficulty, because the words in that sub-section "an offence which he is investigating" fit uneasily with the sole function of the English police officers that day, which was to execute the provisional warrant, and not to investigate the offence which had been committed in Germany.
27. I am satisfied that Miss Montgomery's submissions are well founded, and that there would have to be express statutory provision extending the powers conferred on police officers under section 19 of PACE to police officers executing a warrant for an extradition crime.
28. As I have already said, Mr Perry placed most reliance at the hearing on the contention that the police officers had the power at common law to search the premises and seize anything which they reasonably believed to be material evidence in relation to the extradition crime for which Mr Rottman had been arrested. In this context he relied heavily on a short passage in the judgment of Lloyd LJ in R v Governor of Pentonville Prison ex p Osman [1990] 1 WLR 277.
29. In that case police officers had entered the defendant's house pursuant to authority given by a search warrant issued under the Forgery Act 1981. Once inside the house, they arrested him on a provisional warrant issued under section 6 of the Fugitive Offenders Act 1967. They then conducted a search of his premises and removed a very large number of documents.
30. The court rejected the defendant's contention that there was no power at common law to search and seize documents in relation to a crime alleged to have been committed abroad. Lloyd LJ said at p 311:

"It is beyond dispute that, in relation to a domestic offence, a police officer entering a house in pursuance of a warrant of arrest, or otherwise lawfully arresting a defendant, is entitled to take any goods or documents which he reasonably believes to be material evidence in relation to the crime for which the defendant is being arrested: Ghani v Jones [1970] 1 QB 693, 706. Is there then 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. The police powers of search and seizure consequent on a lawful arrest ought to be, and in our judgment are, the same in both cases."

Miss Montgomery invited us to observe that the police entry and search of Mr Osman's house took place on 6th December 1985, just over three weeks before Part II of PACE, which includes sections 17-19, came into effect.
31. Mr Perry relied on section 19(5) (see para 21 above) as saving the common law power identified by Lloyd LJ in Osman: he contrasted section 19(5) with section 17(5) which expressly abolished almost all the common law powers of entry for the purpose of an arrest. Miss Montgomery on the other hand argued that whether or not Osman was correctly decided in that respect, its authority could not survive the coming into force of the Human Rights Act 1998. Alternatively, she submitted that section 19 of PACE codified the common law powers described by Lord Denning in Ghani v Jones, and that section 19(5) was directed to saving any other statutory powers conferred on constables to seize property when they were lawfully on any premises. She appreciated that at this level of the judicial hierarchy it might be difficult to persuade us that we should not follow Osman, everything else being equal, because to do so we would have to be convinced that the decision in Osman was wrong (see R v Greater Manchester Coroner ex p Tal [1985] 1 QB 76, 81).
32. In order to understand why Osman was decided as it was, it is necessary to go back into judicial history. Fortunately it is not necessary to go back further than two cases decided by the Court of Appeal just over 30 years ago, because they describe the development of the common law very effectively in themselves.
33. In Chic Fashions (West Wales) Ltd v Jones [1968] 2 QB 299 three distinguished common law judges were confronted by a case in which police officers entering shop premises armed with a search warrant authorising them to search the shop for goods stolen from A had found none of A's goods there, but did find and seize goods which they believed on reasonable grounds to have been stolen from B, C and D. They had no warrant to seize these goods, and there was no previous decided case which indicated that they were entitled to do so.
34. In three separate judgments Lord Denning MR and Diplock and Salmon LJJ showed how the common law had set the balance from time to time between a citizen's right to liberty and the enjoyment of his private property on the one hand and the duty of the police on the other hand to prevent and detect serious crime. So far as the sanctity of private property is concerned, Diplock LJ said at p 315 that it was possible to discern over the last two centuries how different judges would have thought the balance lay between the inviolability of private property and the pursuit of public weal in a society of the kind in which they lived.
35. Thus in relation to search warrants there was a move forward from the early rigidity which made a constable liable in trespass, both as to the goods he seized and as to the land he had entered, if he seized any goods which did not answer the description given in his warrant. In 1800 he was given a defence if he seized goods which he reasonably but mistakenly believed to be included in the warrant. In 1827 he was held to be entitled to seize other goods, not named in a search warrant, if they were likely to furnish evidence of the identity of the stolen goods mentioned in the warrant. And in 1861 the House of Lords held that when executing a search warrant for stolen goods a constable was entitled to seize other goods which would be likely to prove the guilt of the thief/receiver. See, for these developments, the Six Carpenters' Case (1610) 8 Co Rep 146a; Price v Messenger (1800) 2 Bos & P 158; Crozier v Cundey (1827) 9 Dow and Ry KB 224; Pringle v Bremner and Stirling (1867) 5 Macp HL 55.
36. Similarly, if a constable had been issued with a warrant to arrest a man, it was held in Ireland in 1887 that he was entitled to take and detain property found in the man's house which would form material evidence in his prosecution for that crime. In Dillon v O'Brien and David (1887) 16 Cox CC 245 Pallas CB said at p 247:

"[The] interest of the State in the person charged being brought to trial in due course necessarily extends, as well to the preservation of material evidence of his guilt or innocence as well as to his custody for the purpose of the trial. His custody is of no value if the law is powerless to prevent the abstraction or destruction of the evidence, without which a trial would be no more than an empty form."

37. This principle was followed by Horridge J in Elias v Pasmore [1934] 2 KB 164, where police equipped with a warrant for the arrest of a man said to have made a seditious speech in Trafalgar Square arrested him at the headquarters of his movement where they also seized documents capable of being used as evidence at his trial. (In his judgment in the Chic Fashions case at p 312F-G Lord Denning MR approved this part of Horridge J's judgment while commenting that the judge had used extra words which unduly restricted the scope of the justification available to the police).
38. Against this background the Court of Appeal was willing to go one step further in the Chic Fashions case in favour of the police. Lord Denning MR set out the competing considerations in his inimitable style at p 313A-E:

"We have to consider, on the one hand, the freedom of the individual. The security of his home is not to be broken except for the most compelling reason. On the other hand, we have to consider the interest of society at large in finding our wrongdoers and repressing crime. In these present times, with the ever-increasing wickedness there is about, honest citizens must help the police and not hinder them in their efforts to track down criminals. I look at it in this way: so far as a man's individual liberty is concerned, the law is settled concerning powers of arrest. A constable may arrest him and deprive him of his liberty, if he has reasonable grounds for believing that a felony (now an `arrestable offence') has been committed and that he is the man. I see no reason why goods should be more sacred than persons. In my opinion, when a constable enters a house by virtue of a search warrant for stolen goods, he may seize not only the goods which he reasonably believes to be covered by the warrant, but also any other goods which he believes on reasonable grounds to have been stolen and to be material evidence on a charge of stealing or receiving against the person in possession of them or anyone associated with him. Test it this way: suppose the constable does not find the goods mentioned in the warrant but finds other goods which he reasonably believes to be stolen. Is he to quit the premises and go back to the magistrate and ask for another search warrant to cover these other goods? If he went away, I should imagine that in nine cases out of ten, by the time he came back with a warrant, these other goods would have disappeared. The true owner would not recover them. The evidence of the crime would have been lost. That would be to favour thieves and to discourage honest men."

39. Diplock LJ, for his part, said at p 316E-317A:

"... unless forced to do so by recent binding authority, I decline to accept that a police office who is unquestionably justified at common law in arresting a person whom he has reasonable grounds to believe is guilty of receiving stolen goods, is not likewise justified in the less draconian act of seizing what he, on reasonable grounds, believes to be the stolen goods in that person's possession. The purpose of the seizure in such a case is twofold: first, that the goods may be produced as material evidence upon the prosecution of a criminal charge against the person from whom they were seized, and, secondly, that after the trial they may be restored to their rightful owner; and a similar justification exists for their detention so long as the detainor has reasonable grounds for believing that such a charge will lie and that the goods will be material evidence upon its prosecution."

40. Salmon LJ said at p 319E-320B:

"If the preservation of law and order requires that a policeman shall have the power to arrest a man whom he believes on reasonable grounds to be a thief or receiver, it is difficult to understand why the policeman should not have the power to seize goods on that man's premises which the policeman believes on reasonable grounds that he has stolen or received. If the man's person is not sacrosanct in the eyes of the law, how can the goods which he is reasonably suspected of having stolen or received be sacrosanct? Only if the law regards property as more important than liberty; and I do not accept that it does so. It would be absurd if the police had the power to arrest a man, but, having failed to catch him, had no power to seize the goods in his house which they reasonably believed he had stolen or unlawfully received. There is no doubt that if they find goods in his possession when they arrest him, they may seize the goods: see the observations of Lord Campbell in the footnote to Bessell v Wilson (1835) 20 LTOS 233; Dillon v O'Brien and Davis 16 Cox CC 245; and Elias v Passmore [1934] 2 KB 164. Suppose the police, reasonably believing a man has stolen some jewellery, follow him into his house in order to arrest him. As they enter the front door, they see him disappearing out of the back door, but there on the table is the jewellery. Surely they may seize it; the fact that he has evaded capture cannot confer any immunity on him in respect of the stolen goods."

41. This was the line of authority on which Lord Denning MR drew in Ghani v Jones [1970] 1 QB 693. Police officers inquiring into a woman's disappearance were concerned to justify their search of her father-in-law's house without a warrant and their seizure of the occupants' passports. Lord Denning said at p 706A-C:

"I would start by considering the law where police officers enter a man's house by virtue of a warrant, or arrest a man lawfully, with or without a warrant, for a serious offence. I take it to be settled law, without citing cases, that the officers are entitled to take any goods which they find in his possession or in his house which they reasonably believe to be material evidence in relation to the crime for which he is arrested or for which they enter. If in the course of their search they come upon any other goods which show him to be implicated in some other crime, they may take them provided they act reasonably and detain them no longer than is necessary. Such appears from the speech of Lord Chelmsford LC in Pringle v Bremner and Stirling (1867) 5 Macph HL 55, 60 and Chic Fashions (West Wales) Ltd v Jones [1968] 2 QB 299."

42. There can be no doubt that in the Osman case this court took these principles one stage further forward. The police came to Mr Osman's London home equipped with a search warrant issued under the Forgery Act 1981 - they had reason to believe he possessed a forged passport - and a provisional warrant for his arrest on various charges of dishonesty issued under the Fugitive Offenders Act 1967.
43. Section 6(5) of that Act conferred a limited power of search in cases where the fugitive has not been arrested, but this court held that this provision did not exclude the ordinary common law powers of search when he has. Lloyd LJ said at p 312A that it was unnecessary to consider the position under the search warrant, because once the police had obtained access and Mr Osman had been arrested, the search warrant receded into the background.
44. A well-known example of the importance of the police, when lawfully on premises, being able to search and seize material evidence which they reasonably believe to be capable of proving the guilt of the person for whom they were searching was given by Lord Denning MR in Ghani v Jones at p 708E-F. Police officers searching the great train robbers' hideout at Leatherslade Farm found and seized a saucer which had been used to give milk to a cat on the farm in order to examine it for finger prints. During the course of his submissions Mr Perry suggested to us that police executing a provisional warrant for the arrest of a man under extradition legislation might find comparable evidence in the house where they found him which would be unlikely to be still there if they left and returned with a search warrant.
45. It appears to me that it was open to this court in Osman to decide to extend the common law powers of the police in this way. As in the case of a warrant relating to an English crime, the police had to furnish appropriate evidence to a magistrate before they could be issued with a provisional warrant to arrest a fugitive, and it appears that in these days when it is easier for suspected offenders to move from one country to another, this court considered it reasonable to extend the common law powers of an English police constable so as to entitle him to search the premises of the person he had just arrested on such a warrant. As in Chic Fashions, the court was untrammelled by authority, and I am certainly not convinced that the decision was wrong.
46. I turn now to the question whether we should now hold that whatever the position might have been before PACE came into force, this common law power must be taken to have been extinguished. It is at once noticeable that Osman was decided in the interval between PACE's appearance on the statute book on 31st October 1984 and the date when Part II of PACE came into force. Parliament would therefore have been unaware of this latest extension of the police's common law powers when it was considering the bill which became PACE.
47. I find it quite impossible to interpret Part II of PACE as providing any saving for the common law power identified by Lloyd LJ in Osman. While it is true that section 18 contains no provision comparable to section 17(5) ("... all the rules of common law under which a constable has power to enter premises without a warrant are hereby abolished"), it appears to me that Parliament intended section 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.
48. When Parliament enacted PACE on 31st October 1984, the Government was already engaged in a long drawn out review of extradition law and practice. An interdepartmental working party reported in May 1982, and we have been shown Chapter 11 of its report, entitled "Seizure and Surrender of Property", which did not expressly refer to any police powers of searching premises owned or occupied by the person whose extradition was sought, or any need for reform of the law in that area. It mentioned, without comment, the provisions of the UK model extradition treaty and the European Convention on Extradition which referred to the requested party handing over to the requesting party articles acquired by the person in question as a result of the offence which were in his possession. In February 1985 the Government published a Green Paper entitled "Extradition" (Cmnd 9421) which stated that it was unnecessary to make specific provision in an extradition statute to allow property connected with an alleged offence to be seized and surrendered to the requesting state. There is no hint in this material of any need to extend the powers of search and seizure contained in the new domestic legislation so as to make them available in an extradition context.
49. No progress was made in this regard until the end of the decade. Part I of the Criminal Justice Act 1988 contained pre-consolidation amendments of the extradition legislation (which never came into force and were repealed by Schedule 2 of the Extradition Act 1989, which was a consolidation Act with Law Commission amendments). These amendments were not concerned with search powers. It was not until the enactment of the Criminal Justice (International Co-operation) Act 1990 that Parliament produced a modern code for mutual assistance in criminal proceedings and investigations. Section 7 of that Act creates arrangements for the issue of search warrants of varying gravity, which dovetail with the language used by PACE in relation to domestic procedure.
50. The enactment of this legislation gave Parliament the opportunity to decide whether it wished to give the police a power to search the premises of an arrested person without a warrant such as was enacted in a domestic context in section 18 of PACE. It decided not to take that opportunity. Instead, in that part of the 1990 Act which is headed "Additional co-operation powers", it obliged the police to obtain a warrant before entering premises occupied or controlled by the person in question for the purpose of searching them and seizing relevant evidence found there.
51. If Mr Perry was correct, then an unnoticed common law power of search would have survived the coming into force of PACE but would not have attached to it any of the disciplines created by section 18 of PACE or PACE Code of Practice B (see para 1.3 for the searches to which that code applies). It is not at all surprising that in such uncharted territory D/Sgt Loudon says in his witness statement (see para 10 above) that he decided to exercise his power of search under section 18(5) of PACE (although he goes on to express his belief that the police officers on the Extradition Unit possessed common law powers to search premises following the arrest of a person on an extradition warrant). His "Premises Searched Book" contains space for tick-box entries for the power under which he was conducting his search. There is no reference to common law powers, and D/Sgt Loudon appears to have placed ticks against both section 18(5) and section 32 in that book, although the first of these ticks was also crossed.
52. For these reasons, I am satisfied that the common law power of search which was identified by this court in Osman was extinguished when Part II of PACE came into force. I am also satisfied - and indeed the contrary was not argued - that the police possessed no statutory power of entry and search without a warrant outside the four corners of PACE, and PACE gave them no such power in an extradition context. Given that Parliament has decided to set out the extent of police powers of entry and search without a warrant, I do not consider that it would be appropriate for us to create new common law powers today. I do not need to repeat in this judgment the submissions we received from Miss Montgomery on the ECHR requirements of clarity and accessibility in the context of a potential violation of Article 8(1) of the Convention. Where Parliament has legislated in fine detail in relation to the exercise of powers of entry and search without a warrant in a domestic context, judges should not act as substitute lawmakers in order to identify similar powers in an extradition context to which no such fine detail by necessity could be attached. Because there was no lawful justification for the search without a warrant, Mr Rottman's Article 8(1) rights were violated.
53. I must make it clear that nothing in this judgment must be taken as negativing any power of the police to seize articles found in the possession of the person they are arresting. What the police needed in this case was (i) a power to enter the dwellinghouse (which Mr Rottman cannot be taken to have given them voluntarily for the purpose of searching it) and (ii) a power to search it. In the absence of a warrant from a court they possessed neither of these powers. In the interests of completeness I would add that if the search was otherwise lawful, I do not consider that the involvement of the two German police officers, even on Mr Rottman's account of the matter, would have rendered it unlawful.
54. I would therefore grant Mr Rottman a mandatory order requiring the first defendant to deliver up to him all the items seized on 23rd September 2000; a declaration that the entry and search carried out by the first defendant on 23rd September 2000 was unlawful; and a declaration that his rights under Article 8 of the European Convention on Human Rights have been violated. Mr Rottman's claim for damages is adjourned for directions and a hearing before a single judge in the Administrative Court.
55. The Secretary of State for the Home Department has taken no part in these proceedings since he suspended his nomination of Bow Street Magistrates' Court under section 4 of the 1990 Act, and no relief is now sought against him.