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URL: http://www.bailii.org/uk/cases/UKHL/2002/20.html
Cite as: [2002] HRLR 32, [2002] 2 AC 692, [2002] 2 All ER 865, [2002] 2 WLR 1315, 12 BHRC 329, [2002] UKHL 20, [2002] ACD 69

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Commissioner of Police for the Metropolis, Ex P Rottman, R v. [2002] UKHL 20 (16th May, 2002)

HOUSE OF LORDS

Lord Nicholls of Birkenhead Lord Hoffmann Lord Hope of Craighead Lord Hutton Lord Rodger of Earlsferry

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

REGINA v
    COMMISSIONER OF POLICE FOR THE METROPOLIS (APPELLANT)

    EX PARTE ROTTMAN (RESPONDENT)

    (On Appeal from a Divisional Court of the Queen's Bench Division)

ON 16 MAY 2002

[2002] UKHL 20

LORD NICHOLLS OF BIRKENHEAD

My Lords,

1. I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Hutton and Lord Rodger of Earlsferry. For the reasons they give, and with which I agree, I would answer the certified question in the manner Lord Hutton proposes and allow this appeal accordingly.

LORD HOFFMANN

My Lords,

2. I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Hutton and Lord Rodger of Earlsferry. For the reasons they give, and with which I agree, I would answer the certified question in the manner Lord Hutton proposes and allow this appeal accordingly.

LORD HOPE OF CRAIGHEAD

My Lords,

3. My noble and learned friend, Lord Hutton, whose speech I have had the advantage of reading in draft, has described the background to this case. I gratefully adopt his account of it. For the reasons which he has given, and for the reasons given by my noble and learned friend, Lord Rodger of Earlsferry, I agree that the powers which are given to the police by sections 18 and 19 of the Police and Criminal Evidence Act 1984 ("PACE") do not apply where a person is arrested under a provisional warrant for an extradition offence. I also agree with Lord Rodger that the power in section 32 of that Act to search premises in which the person was when he was arrested does not apply either as the term "offence" in subsection 2(b) is confined to domestic offences, and that section 17(5) of PACE has nothing to do with the power of the police to search premises once a person has been arrested. I regret however that I am unable to agree with my noble and learned friends' analysis of the powers which are available to a police officer at common law where he is in possession of an arrest warrant.

4. As Lord Hutton has explained, we are concerned here with a provisional warrant for the arrest of the respondent which was issued under section 8(1) of the Extradition Act 1989. A magistrate has power to issue a warrant of arrest under that section if he is supplied with sufficient evidence to satisfy him that he would be justified in issuing a warrant for the arrest of a person accused of a crime committed within his jurisdiction and that the conduct alleged would constitute an extradition crime: section 8(3). The purpose of the arrest, as section 9(1) makes clear, is to enable the respondent to be brought before a court of committal as soon as practicable with a view to the commencement of extradition proceedings against him in that court. Section 8(6) provides that, where a warrant is issued under that section for the arrest of a person accused of an offence of stealing or receiving stolen property committed in a designated Commonwealth country or colony, the magistrate shall have the like power to issue a warrant to search for the property as if the offence had been committed within his jurisdiction. But the magistrate did not have power to issue a warrant for search for property in this case, as the alleged offence was one of fraud and it was said to have been committed in Germany. The only power which he had under this statute was to issue a warrant for the respondent's arrest. He had power under section 26(1) of the Theft Act 1968 read with section 24(1) of that Act to issue a warrant to search for and seize stolen goods, but it was not alleged that the respondent had any stolen goods in his custody or possession or on his premises.

5. Had it not been for the possibility that a police officer executing a warrant of arrest issued under section 8(1) of the 1989 Act has powers of search at common law, therefore, the position in this case would have been quite straightforward. The warrant which was issued to him was a warrant of arrest only. Its sole purpose was to enable the respondent to be taken into custody. It was not a warrant to search. Its purpose was served as soon as the respondent had been arrested in the driveway of his house a few yards from its front door. The decision to search the house was not taken for the purpose of effecting the arrest. It was taken because two German police officers who arrived at the premises afterwards, having spoken to the public prosecutor in Germany, asked for the house to be searched. This was because they suspected that there were computers, computer disks and financial documents which might hold evidence of the offences which the respondent was alleged to have committed or proceeds of those offences. But the officer of the Metropolitan police to whom that request was made did not have a warrant to search the house. If he had asked for one to be issued to him under section 8(6) of the 1989 Act, it would have been refused. The statutory powers under PACE were not available. In the absence of a relevant common law power, it is plain that the entry and search of the house which the police carried out was unlawful, and that the respondent's rights under article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms were violated.

The common law power

6. There is no doubt that a police officer had power at common law, when executing a warrant for a person's arrest, to search the suspect and to seize any articles which he might find on his person or in his immediate vicinity which might constitute material evidence against him for the purpose of preserving that evidence until trial. The question which is in dispute is whether this common law power extended to a search of the premises where the arrest took place for evidence as well as to a search of the person of the suspect. In view of the powers of search upon an arrest which are given to a constable by section 32 of PACE this question is no longer a live issue where the offence for which the person was arrested is a domestic offence. I consider that the authorities as to the state of the common law prior to the coming into force of PACE are at best unclear on the point. Its development was not assisted by the fact that the test as to whether evidence obtained in the course of a search is admissible was whether the evidence was relevant and not whether it had been properly obtained: Jeffrey v Black [1978] QB 490. In that context there was no need to address the question whether the search was lawful. In the present case it is directly relevant. In my opinion the better view is that the constable had no common law power to carry out a search of the premises for evidence unless he had the person's consent or the authority of a search warrant.

7. In Chic Fashions (West Wales) Ltd v Jones [1968] 2 QB 299 Lord Denning MR reviewed the cases relating to the power of a constable entering a house in possession of a search warrant to seize goods not covered by the warrant but which he reasonably believed to have been stolen and to be material evidence on a charge of stealing or receiving against the person in possession of them. They included the Scottish case of Pringle v Bremner and Stirling (1867) 5 Macph HL 55. That was an action of damages in which it was alleged that a constable who was authorised by a search warrant to search a house for pieces of wood and pieces of a fuse used to cause an explosion had taken away private books and papers which he had found in the pursuer's repositories. Lord Chelmsford LC recognised, at p 60, that it might be said that the constable had no right whatever to go beyond the terms of his warrant and endeavour to find something else that might implicate the pursuer in the charge. But he added this comment in a passage which Lord Denning MR quoted, at p 311G:

8. That was however, as Lord Denning MR observed at p 312A, a case on a search warrant. He then went on to consider the power of a constable to seize other goods which go to prove guilt where he was executing a warrant of arrest. In Dillon v O'Brien and Davis (1887) 16 Cox CC 245 it was held that, where a person was arrested on an arrest warrant, a constable was entitled to take from him property found in his possession which was likely to form material evidence in his prosecution for a crime. Palles CB said, at p 249, that constables were entitled, upon a lawful arrest of a person charged with treason or felony to take and detain property "found in his possession" which would form material evidence in his prosecution for crime. I note in passing that he did not go so far as to say that they were entitled to conduct a search of the premises. In Elias v Pasmore [1934] 2 KB 164 it was held that a constable who was arresting a man named Hannington for sedition was entitled to seize documents which were in his possession which would form material evidence against the plaintiff in that action on a charge of inciting Hannington to commit the crime of sedition. Horridge J said, at p 173, that their seizure, although improper, would be excused because the documents were capable of being used and were used as evidence in the trial.

9. The conclusion which Lord Denning MR drew from these cases was that, 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: [1967] 2 QB 299, 313C-E. He did not discuss the question which arises in this case, which is whether a constable who is lawfully on premises for the execution of an arrest warrant may conduct a search of those premises for evidence without being in possession of a search warrant.

10. At p 316E-F, Diplock LJ said:

Salmon LJ enlarged on this point, at pp 319G-320B :

Bessell v Wilson

Dillon v O'Brien and Davis

Elias v Pasmore

But the situations contemplated in these passages, where stolen goods are found in the person's possession when he is arrested or are in plain view as he evades arrest, are not those which are under consideration in this case. What their Lordships had in contemplation was a power to seize stolen goods which they find in his possession or they happen to see while they are attempting to effect the arrest. There is no discussion in these judgments of the question whether the police officer, having effected the arrest, would then be entitled at common law to conduct a search of the premises for evidence.

11. The only passage in the authorities which may be said to be directed to this precise issue is to be found in the judgment of Lord Denning MR in Ghani v Jones [1970] 1 QB 693. That was a case where police officers who were inquiring into a woman's disappearance searched without warrant the house of the woman's father-in-law. At their request the father-in-law handed over to them various documents which included several passports. The plaintiffs later asked for the documents to be returned to them, but the police refused to do so. It was held that the police had not shown reasonable grounds for believing that the documents were material evidence to prove the commission of a murder or that the plaintiffs were in any way implicated in or accessory to a crime, and the police were ordered to return the documents forthwith.

12. In the course of his judgment in Ghani v Jones Lord Denning said, at pp 705H-706C:

in the course of their search

Pringle v Bremner and Stirling

Chic Fashions (West Wales) Ltd v Jones

[1968] 2 QB 299

13. Were it not for the presence in this passage of the words which I have highlighted, it would not have been possible to say that it added anything to what could be found in the earlier authorities. The earlier authorities were not concerned with the question whether a police officer was entitled at common law, when effecting an arrest, also to conduct a search of the premises for evidence. What then are we to make of Lord Denning's use of the phrase "in the course of their search"?

14. In my opinion the best guide to what Lord Denning had in mind is to be found in the fact that he said that he was setting out, without citing cases, what he took to be settled law. It was settled law that a police officer seeking to effect an arrest, with or without a warrant, was entitled to search the person of the suspect. It was also settled law that he was entitled to search premises where the suspect might be hiding for the purpose of finding the suspect and effecting the arrest. And it was settled law that he was entitled to seize things found in the course of either of these exercises which he reasonably believed to be material evidence in relation to the crime for which the suspect was being arrested or, having entered the premises in possession of a search warrant, he found articles in relation to a crime other than that for which the search warrant was granted. But there was no basis in the authorities for saying that it was settled law that a police officer, having effected an arrest, was then entitled to conduct a search of the premises for evidence without first having obtained a search warrant. I do not detect in Lord Denning's remarks an intention to extend the law to this effect. Nor was it necessary for him to do so for the decision in that case. The passage which I have quoted was plainly obiter, as the decision in the case did not turn on the question whether the police were entitled to take possession of the documents without a search warrant.

15. In Jeffrey v Black [1978] QB 490 the police arrested the defendant for the offence of stealing a sandwich from a public house. They then searched his home without a search warrant and without his consent. It was held that their search of his home in these circumstances was unlawful and that the evidence which the police had obtained during their search of drug offences had been irregularly obtained. Reference was made to Lord Denning's observations in Ghani v Jones. It was not necessary for the court in that case to decide whether it would have been open to the police to conduct a search of the premises where the defendant was arrested with a view to finding material evidence of the crime for which he was arrested. Lord Widgery CJ said, at p 497A, that it might very well be that they might have made that inspection without further authority. But he went on to say that they did not have power to inspect his house at another place when the contents of the house, on the face of it, bore no relation whatever to the offence with which he was charged. I agree that there is no hint in this passage or in what Forbes J said, at p 499C, of any criticism of Lord Denning's observations. But here again the judges' comments on the issue that arises in this case were obiter.

16. The only other case which bears on this issue is R v Governor of Pentonville Prison, Ex p Osman [1990] 1 WLR 277. In that case the police officers were in possession of a search warrant issued under the Forgery Act 1981 and a provisional warrant issued under section 6 of the Fugitive Offenders Act 1967 (from which section 8(1) of the Extradition Act 1989 is derived). They arrested Osman on the provisional warrant and then carried out a search in the course of which they removed a large number of documents. Objection was taken to the search on the ground that there was no common law power to search and seize documents in relation to a crime alleged to have been committed abroad. It was rejected by the Divisional Court for the following reasons which were given by Lloyd LJ, at p 311G-H:

Ghani v Jones

17. I agree that in the first sentence of this passage, read in its context, Lloyd LJ must be taken to have accepted Lord Denning MR's observations in Ghani v Jones as authority for the proposition that, where a police officer enters a house and arrests a suspect in pursuance of a warrant of arrest or otherwise lawfully, he is entitled to search the entire house and seize any articles which he reasonably believes to be material evidence. But for the reasons which I have already given I consider, with great respect, that this was a misreading of those observations. In any event, if Lord Denning's observations are to be read in this way I think that they went further than was justified by the authorities.

18. I derive support for my approach from the views expressed by Professor David Feldman, The Law Relating to Entry, Search and Seizure (1986), pp 241-247, paras 9.36-9.48. In para 9.36 he observes that, when a person is arrested in private premises, police practice prior to PACE was to search the whole of the house or flat and remove any evidence they found and that this practice relied for common law authority on the dictum of Lord Denning in Ghani v Jones [1970] 1 QB 693, 706. In para 9.48 he says that PACE did what the Royal Commission on Criminal Procedure had recommended by regularising the existing police practice on search of the premises where the person is arrested. Of particular interest for present purposes is his examination of the common law in paras 9.37-9.47. As he points out, police practice is one thing. What the law is on the matter is quite another. Unless authorised by judicial decision or by statute, police practice is no more than that. It is not the law.

19. In para 9.37 Professor Feldman says that Lord Denning MR's statement went further than was justified by the authorities, perhaps because of the confusion caused by treating powers of arrest as if they were the same as powers under a search warrant, and that the assumption that the police had power to search a man's house after his arrest was not supported by either of the cases which Lord Denning cited. As he points out later in the same paragraph:

20. The powers of entry to and search of premises by the police were considered by the Royal Commission on Criminal Procedure in its report The Investigation and Prosecution of Criminal Offences in England and Wales: The Law and Procedure (January 1981, Cmnd 8092-1). Its conclusions as to the powers of the police on arrest are stated at p 11, para 29 of the report as follows:

The authority for the point made in the last sentence is to be found in the judgment of Widgery CJ in Jeffrey v Black [1978] QB 490, 497C. The fact that the law on whether a constable has power to search the premises of an arrested person was thought in 1981 by the Royal Commission to be uncertain supports the view which I myself have formed as to the state of the law at that time.

21. The Report of an Interdepartmental Working Party, A Review of the Law and Practice of Extradition in the United Kingdom (Home office, May 1982) contains this observation, at p 65, para 11.6:

It is of some interest to see that the working party recognised that there might be a problem if the police officer was not armed with a search warrant, and that it had now been adequately dealt with by the power to issue a search warrant which is contained in section 26(1) of the Theft Act 1968. It was noted at p 64, para 11.3 of the report that a sizeable proportion of requests made to the United Kingdom relate to offences such as theft and fraud, and that it was not uncommon for property discovered during searches carried out on or after the fugitive's arrest to be exhibited to the court during extradition proceedings and surrendered to the requesting country with the fugitive. The assumption appears however to have been, as the discussion in para 11.6 indicates, that a search of premises for property in extradition cases would require the issue of a search warrant.

Scottish practice

22. My noble and learned friend, Lord Rodger of Earlsferry has drawn attention to the fact that when a sheriff in Scotland grants a warrant to search for and to arrest an accused he also, as a matter of routine, grants a warrant to search the house or the premises where the accused is found. In Renton & Brown's Criminal Procedure, 6th edition, para 5.03 it is stated that complaint and petition warrants normally include warrants to arrest and search the person of the suspect, his dwelling-house, repositories and the place where he is found. A helpful discussion of the practice is to be found in Sheriff Charles N Stoddart's book, Criminal Warrants, 2nd ed (1999), paras 1.09 - 1.12. In para 1.12 he points out that the sheriff has power in summary cases, on a complaint under the Criminal Procedure (Scotland) Act 1995 being laid before the court, to grant all competent warrants under section 139(1) of that Act. This subsection includes a power "to grant warrant to search the person, dwelling-house and repositories of the accused and any place where he may be found for any documents, articles or property likely to afford evidence of his guilt of, or guilty participation in, any offence charged in the complaint, and to take possession of such documents, articles or property": section 139(1)(c).

23. I am inclined to think that these aspects of Scottish practice, founded as they are upon the granting of warrants which give express power to search and on the exercise of powers which are given to the sheriffs by statute, are of little assistance when one is considering the common law of England on the question of the powers of a police officer who is effecting an arrest under an arrest warrant or otherwise lawfully but has no warrant to search. It is perhaps worth noting also that the power of search which the sheriffs give extends not only to the house or premises where the suspect may be found but also to his repositories and domicile or, as section 139(1) of the 1995 Act puts it, to his "dwelling-house and repositories". This goes further than, in Jeffrey v Black [1978] QB 490, 499C-D, Forbes J was willing to accept was the position in England under the common law.

24. As it happens, however, the common law of Scotland is not entirely silent on this issue. It remains relevant where a person is detained by a constable for questioning at police station under section 14 of the Criminal Procedure (Scotland) Act 1995. Section 14(7)(b) provides that in that event a constable may "exercise the same powers of search as are available following an arrest".

25. As to what those powers are, reference may be made to Adair v McGarry, 1933 JC 72, where the question was whether a police constable was entitled, without the warrant of a magistrate, to take the fingerprints of a man whom he had apprehended. Lord Justice General Clyde said, at p 78:

Jackson v Stevenson

Similar observations are to be found in the opinions of Lord Justice-Clerk Alness, at p 80, Lord Sands, at p 88 and Lord Morison, at p 89.

26. Lord Hunter, who dissented in that case, explained his views on this matter in these words, at p 85:

Pringle v Bremner and Stirling

27. The fact that Lord Hunter was willing to acknowledge that the police would be entitled "in certain cases" to examine the contents of the premises in which the arrest took place is of some significance. But this point was not developed by the other judges in that case. It has not been the subject of later decision in any Scottish court. No doubt this is because the usual practice of granting a warrant to search the premises of the suspect when a warrant for his arrest is granted has made it unnecessary to deal with it. I am not aware of any case where the reference in section 14(7)(b) of the 1995 Act to "the same powers of search as are available following an arrest" has been held to extend to a search of the premises for evidence. If symmetry between England and Scotland in this matter is desirable - and I think it is, as the 1989 Act is a United Kingdom statute and section 8(1) applies to Scotland without modification - it is of some importance to note that it would be contrary to current practice in Scotland, and to the current state of the authorities, for a constable who was in possession of a provisional warrant of arrest issued under that section to carry out a search of premises for evidence without the person's consent or the authority of a search warrant.

Does the common law power extend to extradition cases?

28. Lloyd LJ's observation in R v Governor of Pentonville Prison, Ex p Osman [1990] 1 WLR 277, 311H that the police powers of search and seizure consequent on a lawful arrest ought to be, and are, the same in the case of an arrest under a provisional warrant and an arrest in a domestic case is attractive at first sight. There are good reasons on grounds of public policy for the provision of mutual assistance between states in the detection and punishment of crime. But I do not agree that the position which applies in domestic law can be equated so readily with that which applies in extradition cases.

29. One important difference between domestic cases and extradition cases lies in the fact that the procedure which applies in extradition cases depends upon there having first been a request. Section 7(1) of the Extradition Act 1989 provides that a person shall not be dealt with under Part III of that Act except in pursuance of an order of the Secretary of State issued in pursuance of a request for the surrender of a person under the Act. Another important difference is that, except in the case of a request for the arrest of a person accused of an offence of stealing or receiving stolen property committed in a designated Commonwealth country or colony, the 1989 Act is concerned only with the arrest of the person whose extradition is being sought. Subject to that exception, the Act it is not concerned with the collection of evidence or property connected with the crime for which extradition is sought or with its surrender to the requesting country.

30. The provisions which enable the United Kingdom to co-operate with other countries in criminal proceedings and investigations are contained in a separate statute, the Criminal Justice (International Co-operation) Act 1990. Section 7(1) of that Act provides that Part II of PACE, in relation to powers of entry, seizure and search, shall have effect as if references to serious arrestable offences in section 8 of and Schedule 1 to that Act included any conduct which is 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. Section 7(2) gives power to a justice of the peace to issue a warrant to a constable to enter and search premises and to seize any evidence that is found there.

31. But these provisions are qualified by section 7(4) of the 1990 Act, which provides that no application for a warrant or order shall be made by virtue of subsection (1) or (2) except in pursuance of a direction given by the Secretary of State in response to a request received from an overseas court, tribunal or authority, and that any evidence seized by a constable by virtue of that section shall be furnished by him to the Secretary of State for transmission to that court, tribunal or authority. The fact that Parliament has laid down in these specific terms what is to be done by way of mutual assistance, and has provided that any such assistance must be preceded by a request, is important. It provides a strong indication that it is only on those conditions, except in cases covered by sections 24(1) and 26(1) of the Theft Act 1968, that powers of entry, search and seizure should be exercised in extradition cases for the purpose of seeking out and taking possession of evidence for use by the overseas court.

Conclusions as to the common law

32. For these reasons I would hold that the common law powers which are available to a police officer when effecting an arrest do not extend to a search of the premises where the person was arrested for the purpose of obtaining evidence. It is perhaps arguable that an exception might be made where there are compelling reasons in the public interest for carrying out a such a search, for example in cases of urgency. But in the present case the decision to search the house for evidence was not taken on grounds of urgency. It was taken because the police officer considered that he had power to conduct such a search under the common law, and also because he considered that PACE was available for the carrying out of a search in extradition matters. In my opinion the search was unlawful because it was undertaken without the respondent's consent and because the police had not obtained a search warrant.

33. In any event I would hold that any power which the police might have had to conduct a search of the house for evidence at common law did not apply in this case. The arrest was on a provisional warrant for an extradition offence. The sole purpose for which that warrant was granted was to bring the respondent before the court for committal with a view to his extradition to Germany. The police were not entitled, when effecting this arrest, to exercise the powers of search for evidence which would have been available to them had the arrest been for a domestic offence.

The article 8 Convention right

34. This brings me to the question whether what was done in this case constituted a violation of the respondent's rights under article 8 of the Convention. It is clear that searches of private premises infringe the article 8(1) right unless the conditions in article 8(2) are satisfied: Funke v France (1993) 16 EHRR 297. The wording of article 8(2) as applied to this case indicates that any interference with the right to respect for a person's right to respect for his private life, his home and his correspondence must satisfy two basic requirements. First, the interference must be "in accordance with the law". This means that it must satisfy the principle of legality. Secondly, it must be such as is "necessary" for the prevention of crime. This raises the question of proportionality.

35. It is well established that the principle of legality requires the court to address itself to three distinct questions: see The Sunday Times v United Kingdom (1979) 2 EHRR 245, 271, para 49; R v Shayler [2002] 2 WLR 754, 782, para 56. The first is whether there is a legal basis in domestic law for the restriction. The second is whether the law or rule in question is sufficiently accessible to the individual who is affected by the interference, and sufficiently precise to enable him to understand its scope and foresee the consequences of his actions so that he can regulate his conduct without breaking the law. The third is whether, assuming that these two requirements are satisfied, it is nevertheless open to the criticism on the Convention ground that it was applied in a way that was arbitrary because, for example, it has been resorted to in bad faith or in a way that is not proportionate.

36. For the reasons which I have already given, I consider that there was no settled basis in domestic law for the carrying out by the police of a search of the respondent's house for evidence of an extradition crime without his consent and without having first obtained a search warrant. In any event, it seems to me that, if there was an undoubted power of search at common law, the second and third requirements relating to accessibility, precision and lack of arbitrariness were not satisfied. In the absence of a search warrant the police had no clear authority for which they were doing. The power which they were purporting to exercise was unregulated, and it lacked adequate safeguards against abuse. No limits had been set for its exercise, as the purpose of their search had not been subject to prior review by any judicial officer. The absence of regulation was particularly significant in this case as the conduct alleged was not a domestic offence but an extradition crime. There was an obvious risk that items taken in the course of their search might extend beyond what was strictly necessary for the purpose of prosecuting that crime in the overseas court.

37. Turning to the question of proportionality, there is a general international understanding as to the matters which should be considered where a question is raised as to whether an interference with a fundamental right is proportionate: see de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69, 80G-H per Lord Clyde; R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532, 547A-B per Lord Steyn; R v Shayler [2002] 2 WLR 754, 783, paras 60-61. The first question is whether the objective sought to be achieved - a pressing social need - is sufficiently important to justify limiting the fundamental right. The second is whether the means chosen to limit that right are rational, fair and not arbitrary. The third is whether the means used impair that right as minimally as is reasonably possible.

38. I am in no doubt that the public interest in the detection and punishment of crime is a pressing social need which justifies some interference in the rights which a suspect has under article 8(1). The objective sought to be achieved in this case satisfies this requirement. But the principle of proportionality requires that any such interference must be rational, fair and not arbitrary. There must be adequate guarantees in domestic law to ensure that any such measures of interference will not be abused.

39. Here again what was done in this case seems to me to be open to criticism. In the absence of prior review by a judicial officer the exercise which the Metropolitan police were carrying out in this case appears to me indeed to have been arbitrary. They had no need to search the premises for the purposes of the extradition proceedings which were being conducted in this country. It is not a responsibility of the requested state, unless requested to do so by the requesting state, to look for evidence of the commission of the extradition crime. The only reason why the police proceeded to search the premises was because they were asked to do so by the German police officers, having spoken on the telephone to the public prosecutor. We can assume that the officers of the Metropolitan police by whom the search was conducted were not familiar with German criminal law and procedure. Two separate accounts have been given of the events that followed the arrest, and there is no agreement as to what precisely took place. But it seems likely that, when the Metropolitan police removed the computer equipment, computer disks and other property from the house, they were wholly dependent on the views of the German police officers as to what to look for and what to seize.

40. Where warrants to search are granted they are specific as to the purpose and limitations of the search. But in this case, as there was no such warrant, no systems were in place to ensure that the items which the police seized in the course of their search of the premises were confined strictly to those which were relevant to the prosecution of the extradition crime in the overseas court. It has not been suggested that it would have been impracticable for the Metropolitan police to apply for a search warrant in order to clarify the position before they undertook a search of the premises for any such evidence, or that what they did was done on grounds of urgency. As to whether it has been shown that the interference with the respondent's article 8(1) right was the minimum necessary, I consider that it must at least be open to question whether less intrusive and less arbitrary means could have been employed to meet the interests of justice in this case. For these various reasons I would hold that the interference with the respondent's Convention right was not proportionate.

Conclusion

41. I would answer the certified question in the negative and dismiss the appeal.

LORD HUTTON

My Lords,

42. The question certified by the Divisional Court for the consideration of the House on this appeal by the Commissioner of Police for the Metropolis is as follows:

The background

43. The certified question arises from the following circumstances. The respondent, Mr Michael Rottman, is a German businessman. A court in Germany issued a warrant for his arrest on 27 December 1996. The warrant contained an allegation that he and other persons committed offences of fraud in Germany. The allegation arose out of events dating back to 1990 and concerned Mr Rottman's alleged role in the purchase and subsequent asset-stripping of an East German power supply company by a Swiss shell company with which he was associated. The respondent left Germany at the end of 1995 and the German authorities believed that he had access to funds stolen from the East German company.

44. On 13 September 2000 the Metropolitan Police received a request from the German authorities, via Interpol, for the respondent's extradition to Germany. At that time it was known that he was somewhere in the south of England but his precise whereabouts were not known.

45. On 22 September 2000 a provisional warrant for the respondent's arrest was issued by the Bow Street Magistrates' Court under section 8(1) of the Extradition Act 1989 which provides:

The provisional warrant alleged conspiracy to defraud, which is an extradition crime as defined by section 2 of the 1989 Act. The information placed before the magistrates' court would have justified the issue of a warrant for the arrest of a person accused of such an offence in the United Kingdom.

46. The police carried out a surveillance operation and on 23 September 2000 the respondent was seen in Henley on Thames. The police followed him to his home, which was a large detached house set in its own grounds in Hazelmere, High Wycombe. The respondent was arrested pursuant to the warrant in the driveway of the house a few yards from its front door. It is not in dispute that the police were entitled under section 17 of the Police and Criminal Evidence Act 1984 ("PACE") to enter the grounds of the house to arrest the respondent pursuant to the warrant.

47. The account of the events that followed the arrest given by the three police officers of the Metropolitan Police Extradition Unit who were present differs to some extent from the account given by the respondent. The Divisional Court found it unnecessary to reconcile the differences between the two accounts. However, it appears to be clear that a short time after the respondent had been arrested two German police officers from the German Fugitive Unit arrived at the premises and asked Detective Sergeant Loudon, the senior Metropolitan police officer present, to search the house. The police then searched the house and seized a number of articles in it which they took away to New Scotland Yard. Detective Sergeant Loudon said in his evidence filed on behalf of the appellant that in making his decision to search the house he considered a number of factors. First, it was the accepted practice of police officers in the Extradition Unit that they were able to use common law powers to search the premises following the arrest of a person on an extradition warrant, although it usually happened that the person had been arrested within the physical structure of the premises in question. In this instance the respondent had been arrested a few yards from his front door, within the boundary of the property and, in his (the detective sergeant's) belief, on the premises. In addition, he had also read from various sources that PACE was available in extradition matters for the purpose of carrying out a search.

48. The respondent brought an application for judicial review against the appellant and the Home Secretary in respect of the decision by the police to enter his home in Hazelmere to search for and seize items.

49. The Divisional Court held in favour of the respondent and

(1) declared that the entry and search carried out by the police on 23 September 2000 were unlawful;

(2) declared that the respondent's rights under article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms had been violated;

(3) ordered that there be a Mandatory Order requiring the police to deliver up to the claimant all the items seized on 23 September 2000; and

(4) ordered that the respondent's claim for damages be adjourned for directions and a hearing before a single judge in the Administrative Court.

50. The certified question relates to the seizure of "any goods or documents which [the police officer] reasonably believes to be material evidence in relation to the extradition crime in respect of which the warrant was issued." Accordingly I will consider the issue on the basis that the items seized in the respondent's house were reasonably believed by the police officers to be material evidence in relation to the extradition crime alleged against the respondent. I will also assume that the question relates to search and seizure in the property in which the suspect has been arrested.

51. The Divisional Court in its judgment delivered by Brooke LJ held that the common law power of search and seizure following an arrest had been extinguished by PACE and that the relevant provisions in respect of search and seizure in PACE related only to domestic offences and did not extend to extradition offences.

The common law power before PACE

52. 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 that person and seize any articles which he found on him which he reasonably believed to be material evidence against him for the purpose of preserving that evidence until trial. It was clear that this power to seize also extended to articles which were present in the room where the person was arrested and of which he was in possession. In Dillon v O'Brien and Davis (1887) 16 Cox CC 245 the plaintiff was arrested pursuant to a warrant in a room of a house and the police officers effecting the arrest seized banknotes and papers in the room for the purpose of producing them as evidence in the prosecution of the plaintiff. The plaintiff sued the police officers for the wrongful seizure and detention of the banknotes and papers, and on a demurrer the Irish Exchequer Division held that the seizure was lawful and Palles CB stated, at p 249:

and at p 250:

The Chief Baron then held that the power of seizure arose on an arrest for a misdemeanour as well as on an arrest for a felony.

53. The judgments of the Court of Appeal in Chic Fashions (West Wales) Ltd v Jones [1968] 2 QB 299 were cited by counsel in their submissions to the House, although that case related to seizure in execution of a search warrant and not to search and seizure after execution of a warrant of arrest. The issue in that case was whether, when police officers entered premises pursuant to a search warrant to search for specified stolen goods, they were entitled to seize on the premises goods other than those specified in the warrant which they believed 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. The Court of Appeal held that the police officers acted lawfully in seizing such goods.

54.

Ghani v Jones [1970] 1 QB 693 was also a case where there was no warrant of arrest. In that case the police, who believed that a woman had been murdered, searched without a warrant the house of her father-in-law and took certain documents including the passports of the father-in-law and other members of his family. The father-in-law and his family brought an action for the return of the documents and the High Court ordered their return and the order was upheld by the Court of Appeal. But in delivering his judgment in the Court of Appeal, in which Edmund Davies LJ and Sir Gordon Willmer concurred, Lord Denning MR considered the powers of the police to search and seize after executing a warrant of arrest and stated, at p 706:

Pringle v Bremner and Stirling

Chic Fashions (West Wales) Ltd v Jones

[1968] 2 QB 299

55. In R v Governor of Pentonville Prison, Ex p Osman [1990] 1 WLR 277, which was a case where extradition was sought of Osman to Hong Kong, the police officers entered a house where he was living. They had with them a search warrant. Once inside the house they arrested Osman on a provisional warrant issued under section 6 of the Fugitive Offenders Act 1967. They then searched the house and seized and removed a large number of documents.

56. Objection was taken that there was no common law power to search and seize documents in relation to a crime alleged to have been committed abroad. Lloyd LJ, giving the judgment of the court, first considered the power to search and seize when police officers lawfully arrested a person for a domestic crime. He stated, at p 311:

Ghani v Jones

Thus it is clear that Lloyd LJ considered that where a police officer enters a house and arrests a suspect pursuant to a warrant of arrest he is entitled to search the entire house and seize any articles which provide evidence against the suspect. Lloyd LJ then held that the power to search and seize after a lawful arrest applied to an extradition crime as well as to a domestic crime and he said, at p 311:

57. Miss Montgomery QC, for the respondent, accepted that under the common law where a suspect had been arrested in his own house pursuant to a warrant for a domestic crime, the police officers effecting the arrest were entitled to search the person of the suspect for items which might constitute evidence for a prosecution and also to seize such items which were in his possession in the actual room in which he had been arrested. But she submitted that the earlier authorities did not support the opinion of Lord Denning MR in Ghani v Jones and the opinion of Lloyd LJ in Osman that the common law power extended to searching and seizing articles which would be material evidence in the remainder of the house. She cited the observations of Professor Feldman in his work The Law Relating to Entry, Search and Seizure (1986) who stated, at pp 241-242, paras 9.37-9.38, with reference to the passage in Lord Denning's judgment in Ghaniv Jones [1970] 1 QB 693, 706:

"9.37

Pringle v Bremner and Stirling

Chic Fashions

9.38

Therefore Miss Montgomery submitted that the common law power was too widely stated by Lord Denning and that your Lordships should hold that the power was confined to seizing articles in the room where the suspect was present at the time of his arrest.

58. My Lords, I am unable to accept that submission. The power of the police to search the person of the suspect when he had been arrested and to seize articles in the room where he was present was based, as Diplock LJ stated in Chic Fashions [1968] 2 QB 299, 317B, on the robust common sense of the reasoning of Palles CB in Dillon, 16 Cox CC 245. I consider that it would be contrary to common sense to hold that the power to search and seize after arrest did not extend to searching the remainder of the premises belonging to the suspect in which or on which he had been arrested. 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 of the house and arrested him but found no knife in the kitchen, were the police acting unlawfully if they then went into the hall and, on finding that the suspect had put down the knife in the hall, seized it? To hold that the police had no power in law to act in this way would, in my opinion, be contrary to good sense. When the police are not authorised to arrest a man they should only have power to search his house pursuant to a search warrant or under statutory authority. But the position is different when the police are entitled to arrest him. In Chic Fashions after referring to the power of a police officer to arrest a suspect Salmon LJ stated, at p 319:

This reasoning applies with even greater force when the suspect has been arrested.

59. To the argument that after the arrest of a suspect in his house pursuant to a warrant the police should not be entitled to search the remainder of the house because they had not been authorised to carry out such a search by a magistrate, I consider that the answer is that a magistrate had considered it proper to authorise the arrest of the suspect. The arrest and the taking into custody of a person and the entry into his home to effect the arrest is a much greater intrusion into his home, his liberty and his privacy that the search of his home and seizure of articles subsequent on his arrest. As such search and seizure will often be necessary to prevent the disappearance of material evidence before the police have time to obtain a search warrant, I consider that this action should be permitted by the law. Therefore I am of opinion that the common law power was correctly stated by Lord Denning MR and Lloyd LJ and was a legitimate extension of the previous case law.

60. Miss Montgomery submitted that having arrested the respondent, not in his house, but outside it in the grounds of his property, the police were not entitled to enter the house to search it. I would not accept this argument because the house and the grounds surrounding it comprised the premises of the respondent and I think 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.

61. It was further submitted on behalf of the respondent that even if the common law had permitted police officers, after they had arrested a person in his house, to search the house and seize articles in it, the power should have been restricted to domestic offences and should not have been extended to extradition offences. Miss Montgomery argued that in Chic Fashions [1986] 2 QB 299 and in Ghani v Jones [1970] 1 QB 693 the Court of Appeal was influenced, not by the need to combat foreign crime, but by the need to combat domestic crime, and she relied on the observation of Lord Denning in the former case, at p 313B, that in these 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, on a similar observation by him in the latter case, at p 708G, and on the statement by Salmon LJ in Chic Fashions, at p 319C, that there had never been a time when the incidence of crime was higher or the need for prevention of crime greater.

62. My Lords, I reject this submission. The effective combating of international crime is as important as the effective combating of domestic crime. As Lord Griffiths said in Liangsiriprasert (Somchai) v Government of the United States of America [1991] 1 AC 225, 251: "Unfortunately in this century crime has ceased to be largely local in origin and effect. Crime is now established on an international scale and the common law must face this new reality." If, prior to PACE, the police had power under the common law, after an arrest for a domestic crime, to search the suspect's house and seize articles which would constitute material evidence against him at a subsequent trial, I consider that the common law gave a similar power when an arrest had been made for an extradition crime, and that Lloyd LJ was right to hold in Osman [1990] 1 WLR 277 that in relation to the power to search and seize there is no difference between a warrant of arrest in domestic proceedings and a warrant of arrest in extradition proceedings. If material evidence in the house of the suspect is not seized by the police at the time of his arrest, the risk of it disappearing soon after the arrest exists whether the arrest is for an extradition crime or for a domestic crime.

63. Therefore before PACE came into operation I am of opinion that the police had power under the common law, after arresting a person in his house or in the grounds of his house pursuant to section 8(1)(b) of the 1989 Act, to search the house and seize articles which they reasonably believed to be material evidence in relation to the crime for which they had arrested that person. I am further of opinion that this power was one that served a valuable purpose because it ensured that what appeared to be material evidence in the house of the suspect would not disappear after his arrest and before the police had had time to obtain a search warrant.

The provisions of PACE

64. PACE was enacted on 31 October 1984 and Part II which contains the relevant sections came into operation on 1 January 1986. Section 17 provides:

Section 23 defines "premises" as including "any place". Extradition proceedings are criminal proceedings: see R v Governor of Brixton Prison, Ex p Levin [1997] AC 741. Therefore the warrant of arrest issued in this case under section 8(1)(b) of the 1989 Act was a warrant of arrest within the meaning of section 17(1)(a)(i). Accordingly the police had power under section 17(1)(a)(i) to enter the respondent's premises for the purpose of executing the warrant of arrest but, by reason of section 17(4), the police, having arrested the respondent, had no power to search his house.

65. Section 18 provides:

Section 18 then sets out certain procedures to be observed:

Section 19 provides:

66. The principal argument advanced by Mr Perry, on behalf of the appellant, was that having lawfully arrested the respondent pursuant to the warrant, the police officers had power under common law to search his house and seize the articles which they considered to be material evidence in relation to the crime, and that this power had not been extinguished by PACE. Mr Perry also submitted that in addition to this common law power the police had power under both section 18 and section 19 to search the respondent's house and to seize the articles. I would reject, as did the Divisional Court, the argument that the police had such a power under either section. Section 18 only applies to the premises of a person who is under arrest for an "arrestable offence". An "arrestable offence" is defined in section 24(1) as an offence for which the sentence is fixed by law, an offence for which a person of 21 years 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 a long list of domestic offences created by United Kingdom statutes. Therefore it is clear, in my opinion, that an "arrestable offence" is a domestic offence and the extradition crime alleged to have been committed by the respondent in Germany cannot be regarded as an "arrestable offence" within the meaning of section 24(1).

67. Nor, in my opinion, can the appellant rely on section 19(3)(a). That section only applies to the seizure of evidence in relation to "an offence which [the police officer] is investigating or any other offence". In R v Southwark Crown Court, Ex p Sorsky Defries [1996] Crim LR 195 (and transcript 6 July 1995) the Divisional Court held that the words in section 19(3)(a) "any other offence" were confined to domestic offences because (following Cox v Army Council [1963] AC 48, Air-India v Wiggins [1980] 1 WLR 815 and Macleod v Attorney-General for New South Wales [1891] AC 455,458) in the absence of an express provision to the contrary the word "offence" in a statute meant a domestic offence. In coming to this conclusion the Divisional Court also took into account section 8(1)(a) of PACE and section 7(1) of the Criminal Justice (International Co-operation) Act 1990. Section 8(1)(a) gives power to a justice of the peace to issue a search warrant if he was satisfied on reasonable grounds that a "serious arrestable offence" had been committed. Section 7 of the 1990 Act provides:

Referring to section 7(1) McCowan LJ stated:

I consider that the word "offence" in the phrase "an offence which he is investigating" should not be given a wider meaning than the same word subsequently appearing in sub-clause (a) and is also confined to a domestic offence. In this case the police were not investigating a domestic offence and are not entitled to claim a power to seize under section 19(3)(a).

68. Section 32(2)(b) gives a police officer power "to enter and search any premises in which [an arrested person] was when arrested or immediately before he was arrested for evidence relating to the offence for which he has been arrested", but the appellant cannot rely on this subsection because, for the reasons which I have given in relation to section 19(3)(a), the term "offence" is confined to a domestic offence and does not extend to an extradition offence.

69. Therefore I turn to consider the question whether the common law power of search and seizure after an arrest on a warrant issued pursuant to section 18(1)(b) of the 1989 Act was extinguished by PACE. The reasoning of the Divisional Court on this question is contained in paragraphs 46 to 53 of its judgment. Brooke LJ stated, at paragraphs 46-47:

Osman

70. In paragraph 48 Brooke LJ noted that when Parliament enacted PACE on 31 October 1984 the government was already engaged in a long drawn out review of extradition law and practice and he referred to the publication by the government in February 1985 of 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. Brooke LJ then observed that there was 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.

71. In paragraph 49 he stated that 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 and he stated that section 7 of that Act created arrangements for the issue of search warrants of varying gravity, which dove-tailed with the language used by PACE in relation to domestic procedure.

72. In paragraph 50 he stated that the enactment of the 1990 Act 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, and he observed that Parliament decided not to take that opportunity. Instead the 1990 Act obliged the police to obtain a warrant before entering premises occupied and controlled by the person in question for the purpose of searching them and seizing relevant evidence found there.

73. Brooke LJ then stated, at paragraph 51:

74. He then stated, at paragraphs 52-53:

Osman

75. In my opinion the common law power of search and seizure was not extinguished by PACE and I consider, with respect, that the Divisional Court fell into error when Brooke LJ stated in paragraph 47:

Osman

But the question is not whether PACE saved the common law power — rather the question is whether PACE extinguished it, as Brooke LJ had recognised in the preceding paragraph. It is a well-established principle that a rule of the common law is not extinguished by a statute unless the statute makes this clear by express provision or by clear implication. The common law power was a valuable one in respect of an extradition offence because, just as in respect of a domestic offence, it guarded against the risk of the disappearance from the suspect's house of material evidence after his arrest and before the police had time to obtain a search warrant. Sections 18 and 19 of PACE are confined to domestic offences and I do not consider that the provisions of that Act lead 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; and it is relevant to note that section 19(5) expressly preserved any power otherwise conferred.

76. Annex B of the 1985 Green Paper on Extradition set out recommendations of the working party on extradition accepted in principle and paragraph 22 stated:

I consider that Mr Perry was correct in his submission that this recommendation meant that the government accepted that there was a common law power to seize property connected with an alleged extradition offence and considered that therefore there was no need for an express statutory provision. In my opinion it did not mean, as the Divisional Court suggests, that the government considered that there was no need to extend the powers of search and seizure in PACE so as to make them available in an extradition context.

77. I also consider that the fact that Parliament made provision in section 7 of the 1990 Act for a justice of the peace to issue a search warrant in respect of a foreign offence does not point to the conclusion that it was the view of Parliament that there was no common law power to search and seize after an arrest for an extradition offence. The issuing of a search warrant in relation to a foreign offence by a justice of the peace can only take place if particular premises are specified to the justice of the peace by the police and if a direction to apply for a search warrant has been given by the Secretary of State after he has received a request from a foreign court or authority (see section 7(4)). But the power to seize and search to prevent the disappearance of material evidence is needed where the police pursuant to a provisional warrant arrest a suspect whose address in this country had been unknown to them until they located and arrested him (which appears to have been the position in this case) and where, prior to finding and arresting the suspect, it was not possible to apply for a search warrant.

78. Nor do I consider that the fact that the common law power would not have attached to it any of the disciplines created by section 18 of PACE or PACE Code of Practice B is a reason for concluding that the existing common law power was extinguished by PACE. I am of this opinion because the exercise of the power does have the discipline attached to it that it can only be exercised after a metropolitan magistrate or a justice of the peace is of the opinion from evidence supplied to him that the alleged conduct of the suspect would constitute an extradition offence and that the issue of a warrant for his arrest would be justified if the conduct had taken place within his jurisdiction.

79. In paragraph 53 of its judgment the Divisional Court states that nothing in its judgment must be taken as negativing any power of the police to seize articles found in the possession of the person they are arresting. But as I have observed, if the police have power at common law to search the person of the individual whom they have arrested under a warrant issued pursuant to section 8(1)(b), it seems contrary to common sense to hold that they do not have power to seize material evidence present in the room where he is arrested and also to search other rooms in his house and seize material evidence found in them. Accordingly I would hold that the common law power of search and seizure after the execution of a warrant of arrest issued pursuant to section 8(1)(b) was not extinguished by PACE and that the police officers were entitled to exercise that power after the arrest of the respondent.

80. Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms provides:

I am unable to accept the respondent's submission that the common law power of search and seizure after arrest constitutes a violation of his rights under article 8. The search and seizure was in accordance with the law which was clearly stated by Lloyd LJ in Osman [1990] 1 WLR 277. The law was also clearly set out at p 175 of the well-known text book on extradition published in 1995 by Mr Alun Jones QC. The power has the legitimate aim in a democratic society of preventing crime, and is necessary in order to prevent the disappearance of material evidence after the arrest of a suspect. The power is proportionate to that aim because it is subject to the safeguards that it can only be exercised after a warrant of arrest has been issued by a magistrate or a 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.

81. Accordingly I would answer the certified question "Yes, a police officer who has arrested a person in or on his premises pursuant to a warrant of arrest issued under section 8 of the Extradition Act 1989 has power to search those premises for, and to 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". I would allow the appeal and would set aside the order of the Divisional Court.

LORD RODGER OF EARLSFERRY

My Lords,

82. I have had the advantage of considering the speech of my noble and learned friend, Lord Hutton in draft. I agree with it and would accordingly allow the appeal. In view of the careful submissions of counsel, and because my noble and learned friend, Lord Hope of Craighead is dissenting on certain points, I add some observations of my own.

83. The provisional warrant for the respondent's arrest was addressed to each and all of the constables of the Metropolitan Police Force. It required them "to arrest the defendant and bring the defendant" before the court. In its terms the warrant did not give the officers express authority either to enter premises and search for the respondent in order to arrest him, or to enter premises and search for items which might be material evidence relating to the extradition offence for which he was to be arrested. But, in the light of the observations of my noble and learned friend, Lord Hoffmann giving the unanimous views of the House in R v Governor of Brixton Prison, Ex p Levin [1997] AC 741, 746F - 747A, it was common ground that the officers executing the warrant for the respondent's arrest in connection with the extradition proceedings were indeed executing a warrant of arrest in connection with "criminal proceedings" in terms of section 17(1)(a)(i) of the Police and Criminal Evidence Act 1984 ("PACE"). They accordingly had power under that provision to enter and search the respondent's premises for the purpose of executing the warrant by arresting the respondent.

84. On behalf of the Crown Mr Perry submitted that not only did PACE give the officers executing the warrant this power, but it also gave them powers under sections 18 and 19, after arresting the respondent on the driveway of his house, to enter the house and search for and seize items of various kinds, especially those which they had reasonable grounds for believing were evidence in relation to the extradition offence. For the reasons given by Lord Hutton I consider that these statutory powers do not apply where someone is arrested under a warrant for an extradition offence. That, in a sense, is all that needs to be decided. Nevertheless, despite the submissions of both counsel that sections 18 and 19 were the appropriate ones to consider and despite the decision of the Administrative Court on the point, I am far from satisfied that this is in fact correct. The problem is that their approach does not have sufficient regard to the structure of the Act and places an unduly narrow construction on section 32.

85. Part I of PACE deals with "Powers to Stop and Search" and is not relevant for present purposes. Part II, comprising sections 8 to 23, is entitled "Powers of Entry, Search and Seizure" and contains a wide range of provisions giving the police powers to enter premises and to search them. These powers include the power to enter for the purposes of arresting someone (section 17), and the power "after arrest" to enter and search premises "occupied or controlled by a person who is under arrest for an arrestable offence" (section 18). This is, of course, the power which Mr Perry sought to invoke on behalf of the Crown in this case. Section 19 contains a general power for a constable "who is lawfully on any premises" to seize various items and to require the production of information in a computer (section 20), the power being in addition to any power otherwise conferred (section 19(5)). Section 22 allows items seized under sections 19 and 20 to be retained as long as is necessary in all the circumstances.

86. Then comes Part III which is headed "Arrest" and which runs from section 24 to section 33. These sections contain wide-ranging provisions dealing with what is to happen when - if need be, after a search under section 17 - the individual is arrested. Among these provisions is section 32, with the side-note title "Search upon arrest". Section 32(1) gives a constable power to search an arrested person who "has been arrested at a place other than a police station" and subsections (8) and (9) provide for the seizure and detention of items found during the course of that kind of search. Subsection (2)(b), which also applies when someone has been arrested other than at a police station, gives a police officer power:

Section 32 contains no provisions dealing with the seizure and detention of any property which may be found during such a search, the reason plainly being that the necessary authority for seizure is to be found in sections 19 and 20, while section 22 gives the necessary power to retain items. By contrast, since these sections deal only with searches of premises and not with searches of the person, it was necessary to include subsections (8) and (9) giving the specific powers of seizure and retention of property found during the search of the arrested person.

87. My Lords, but for counsel's insistence that section 32 had no bearing on this case, I should readily have concluded from its terms that it was indeed the section which dealt with any situation where the police arrested someone away from a police station, whether the arrest took place at the person's home or elsewhere. In that situation section 32 would give the police officers power to search his person (subsection (1)) and power to enter and search any premises where he was when he was arrested or in which he had been immediately before his arrest (subsection (2)(b)). These are powers which a constable can use in all such cases without any particular authorisation. Miss Montgomery QC argued strenuously, however, that where, as here, someone was arrested at his home, section 18 rather than section 32 applied since the police would be entering and searching premises "occupied or controlled by a person who is under arrest for an arrestable offence" (emphasis added). But, in truth, section 18 appears to be dealing, primarily at least, with a situation where the person is under arrest for an arrestable offence at a police station and the police wish to search premises to look for evidence. In these circumstances section 18(1) gives a power to enter and search premises occupied or controlled by the person who is under arrest and subsection (2) gives power to seize and retain what is found. Significantly, however, these powers to enter and search under subsection (1) are subject to certain safeguards, as envisaged in the recommendations of the Royal Commission on Criminal Procedure referred to in paragraph 17 below. In addition the powers cannot usually be exercised unless an officer of the rank of inspector or above has authorised them (subsection (4)). This is similar to the requirement that applied under section 42 of the Larceny Act 1916 and section 26 of the Theft Act 1968. These safeguards and limitations are consistent with the greater caution that the law has tended to show with regard to searches of premises other than those where the person was arrested (Jeffrey v Black [1978] QB 490).

88. Had it been necessary to decide the point, I should therefore have been inclined to hold that the powers of a constable to enter and search the premises where someone was arrested, or where he had been immediately before his arrest, were to be found in section 32, even though the premises in question were the person's home. In other words, if the respondent had been arrested in relation to domestic proceedings, I should have held that the police officers' powers to search for evidence were to be found in section 32 rather than in section 18 and that their powers of seizure and retention of any items were to be found in sections 19, 20 and 22 rather than in sections 18(2) and 20. It is, however, unnecessary to decide the point in this case since the power in section 32(2)(b) is to enter and search for evidence relating to "the offence" for which the person has been arrested. For the reasons given by Lord Hutton in paragraph 26 of his speech, in relation to section 19(3)(a), I am satisfied that in section 32(2)(b) the term "offence" is confined to domestic offences and that the provision does not, accordingly, cover the situation where the respondent was being arrested in connexion with offences under German law.

89. Since, then, PACE does not provide the authority for the search for evidence that the officers carried out in this case, two questions remain to be decided: first, whether before the enactment of PACE police officers would have had a common law power to search the respondent's premises when arresting him for an extradition crime under a warrant from the chief metropolitan stipendiary magistrate; and, secondly, whether any such common law power of search had in any event been extinguished by the enactment of PACE.

90. So far as the first question is concerned, Mr Perry submitted that authority for the existence of such a power of search in domestic cases was to be found in the opinion of Lord Denning MR in Ghani v Jones [1970] 1 QB 693, 706A - C:

Pringle v Bremner and Stirling

Chic Fashions (West Wales) Ltd v Jones

[1968] 2 QB 299

As the opening words of the third sentence show, in the previous sentence Lord Denning was holding that police officers arresting an individual have a power to search for goods in his possession or in his house and not merely a power to seize those which they happen to come across. It is this proposition of settled law that is of importance for present purposes.

91. Mr Perry went on to point out that in R v Governor of Pentonville Prison, Ex p Osman [1990] 1 WLR 277, 311G - H, Lloyd LJ, giving the judgment of the Divisional Court, held that a police officer executing a provisional warrant under section 6 of the Fugitive Offenders Act 1967 enjoyed the same common law powers of search and seizure as in the case of domestic proceedings. That approach should, Mr Perry submitted, be applied to police officers executing an arrest warrant under section 8 of the Extradition Act 1989 ("the Extradition Act").

92. On the other hand Miss Montgomery argued that the House should not endorse Lord Denning's statement of the common law: it contained an unduly expansive version of a police officer's powers of search. In particular, the statement of the law was not supported by the authorities which Lord Denning cited. In making this submission she was in effect adopting the criticism made by Professor David Feldman in The Law Relating to Entry, Search and Seizure (1986), pp 241-242, para 9.37. In any event, she argued, Lloyd LJ had been wrong in Osman to hold that the same common law powers would apply to a constable executing an arrest warrant for an extradition offence: with a few exceptions, the common law was concerned only with crimes committed in England and Wales and it could not be used to give police officers acting in extradition proceedings a power that Parliament had not seen fit to bestow on them.

93. Not the least remarkable feature of the common law on powers of search is the relative paucity of authority. At the beginning stands the constitutional rock of Entick v Carrington (1765) 19 State Tr 1029 but then almost 90 years go by before Lord Campbell CJ's footnote in Bessell v Wilson (1853) 20 LT (OS) 233. Thirty years later there is Dillon v O'Brien and Davis (1887) 16 Cox CC 245 but little of importance thereafter until Elias v Pasmore [1934] 2 KB 164. Finally, come Chic Fashions (West Wales) Ltd v Jones [1968] 2 QB 299 and Ghani v Jones. The decisions are not only few in number: for the most part, the reasoning of the judges in the older cases is limited to the particular facts and illuminates only a small part of the landscape, so leaving the reader uncertain how the law applies just outside that area. In practice, of course, police officers and those advising them had to decide what their lawful powers were, even in situations where the courts had not given guidance. By 1929 and the report (Cmd 3297, Chapter IV, para 33) of the Royal Commission on Police Powers and Procedure chaired by Viscount Lee of Fareham, it had long been the practice of the police:

The matter is restated in Chapter IV, para 120, where the Commission repeat the Home Office view that the police practice "had, by long use, become part of the common law". The Royal Commission were themselves satisfied (para 121) that:

The Royal Commission accordingly recommended that the existing police practice should be put on a statutory basis, "authorising them to search without a warrant the premises of persons who have been arrested." See also Chapter XII, para 301(xxx).

94. The practice of police officers searching for material evidence in the home of a person for whom an arrest warrant had been issued was thus well established more than 70 years ago - despite there being no case in which the point had needed to be decided. Moreover, the Royal Commission found the power to be acceptable and not to be in any way an undue infringement of the rights and liberties of the subject.

95. Of course, police practice does not make law, even when it is known to the courts. None the less, in the absence of any challenge to that practice over many years, it is hardly surprising that in Ghani v Jones "without citing cases" Lord Denning could regard it as settled law that the police could carry out a search of this kind. Starting from there he went on to deal with a different point: if, in the course of the lawful search, the police officers came across items which showed that the arrested person was implicated in some other crime, they were entitled to take these items too, provided that they acted reasonably and detained them no longer than was necessary. Lord Denning cited Pringle v Bremner and Stirling and Chic Fashions (West Wales) Ltd v Jones as authority for this second proposition. There is no reason to suppose that he proceeded under some misapprehension as to the relevance of these cases to the proposition of settled law that he had already stated.

96. Subsequent events have only served to confirm that the proposition itself was sound. In Jeffrey v Black [1978] QB 490, 496F - 497C and 499C both Lord Widgery CJ and Forbes J appear to have proceeded on the basis that, so far as affirming a right to search the premises where an accused was arrested, Lord Denning's formulation of the law was not open to question. Similarly, when it had stood for a further 11 years, in R v Governor of Pentonville Prison, Ex p Osman [1990] 1 WLR 277 Lloyd LJ regarded the point as being "beyond dispute".

97. The line of cases stops here. To judge from them, until the present proceedings the power of a police officer to search the house of someone arrested under a warrant had never been challenged in the courts since the days of crinolines and Palles B.

98. The scope of the power of police officers to search people whom they have arrested also came under the notice of the Royal Commission on Criminal Procedure chaired by Sir Cyril Philips. Their Report was published in two volumes in 1981: Report (Cmnd 8092) and The Investigation and Prosecution of Criminal Offences in England and Wales: The Law and Procedure (Cmnd 8092-1). In The Investigation, p 12, para 34, the Commission accepted as accurate the statement of the law in Archbold Pleading, Evidence and Practice in Criminal Cases, 40th ed (1979), para 1410, which was based, almost word for word, on the passage in Lord Denning's judgment in Ghani v Jones. The Commission noted (Report, para 3.119) that the police had power to search the arrested person's "immediate surroundings" but that there was doubt about whether the power extended to the premises of a person arrested elsewhere. They therefore recommended that a statutory power with suitable safeguards should be introduced (paras 3.120 - 122). There was, however, no suggestion that the accepted common law powers of search on arrest should be abridged.

99. Miss Montgomery may well be right, of course, to say that Lord Denning formulated the common law powers of search on arrest more widely than had been done in earlier cases. What was novel, however, was not the understanding of the law as such but the fact that it had finally been stated by a court. As Chic Fashions (West Wales) Ltd v Jones [1968] 2 QB 299, 312 - 313 shows, Lord Denning had been concerned to draw together the earlier sparse authorities and to restate the law in a more systematic way, that took account of the circumstances of the day. Ghani v Jones is an example of the same approach. The real question for your Lordships in the present case, accordingly, is not whether in 1969 the pre-existing authorities technically justified Lord Denning's statement of the law in this passage in Ghani v Jones but whether the common law today should be regarded as conferring on police officers executing a warrant for the arrest of an individual such powers to search for evidence as Lord Denning described. I am satisfied that it should.

100. To insist on a narrow interpretation of the earlier scattered case law and to confine the police officers' power to searching the accused's person and seizing articles in the room where he happens to be when arrested would make it a matter of chance whether potentially important evidence was recovered or lost. By contrast, Lord Denning's (by no means expansive) rationalisation of the law at one and the same time removes the element of chance and confirms the legality of what had been, to the knowledge of the courts, the practice of the police for decades.

101. Moreover, whether one has regard to section 32 or section 18 of PACE, along with sections 19, 20 and 22, their effect is to give police officers powers that are certainly subjected to certain refinements, particularly in relation to legal professional privilege, but that do not otherwise differ greatly in scope from the common law powers as stated by Lord Denning. By enacting these provisions, Parliament followed the course recommended by the two Royal Commissions and clarified the law. In doing so Parliament broadly endorsed the well-established policy enshrined in Lord Denning's statement that police officers should be entitled to search the home of someone arrested by virtue of a warrant.

102. I note, moreover, that the practical effect of Lord Denning's approach is to produce a situation which corresponds broadly to that in Scotland where a sheriff grants a warrant for someone's arrest on a serious charge. In that jurisdiction the modern case law contains no equivalent of the debate in England about the powers of search of police officers executing an arrest warrant. This is because of the practice of the sheriff court when granting such warrants. The procurator fiscal asks for a warrant not simply to apprehend the accused person but "to search for and apprehend" him (emphasis added). So the police officers executing the warrant are given express authority from the court to search for the person in order to arrest him. More importantly for present purposes, the procurator fiscal's petition always goes on to ask the sheriff:

(See the petition set out in form 1 in Appendix I to Renton and Brown's Criminal Procedure, 3rd ed (1956), p 455, unfortunately omitted from later editions.) Therefore, when the sheriff grants a warrant to search for, and to arrest, the accused, as a matter of routine he also grants a warrant to search for evidence relating to the crime, including the warrant to search the house or premises where the accused is found. The result is that, when a person is arrested at his home under a search warrant, the officers carrying out the arrest are authorised to search his home - just as Lord Denning held that they could under English law. The fact that sheriffs in Scotland regularly grant this (not dissimilar, though rather wider) power of search when they grant an arrest warrant tends to confirm that Lord Denning's view of the policy underpinning the English common law was sound and not unduly generous to the police. The House should not now question that view or this aspect of the common law as he stated it.

103. In Ghani v Jones [1970] 1 QB 693 Lord Denning was not dealing with arrest warrants in extradition proceedings. For the reasons given by Lord Hutton, however, I am satisfied that there is no reason to criticise the Divisional Court's decision, in Osman [1990] 1 WLR 277 that police officers should have the same common law powers when executing an arrest warrant relating to extradition proceedings. As the court recognised, the same considerations as make those powers appropriate in a domestic case make them appropriate in an extradition case. The recognition that those powers are available in extradition proceedings does not contradict or cut across any provision of the extradition legislation; rather it supports the policy of that legislation. The days are long gone when the common law could be blind to everything occurring outside the realm. Where Parliament has enacted extradition legislation with a view to assisting the forces of justice, law and order in certain other countries, there can be no legitimate objection in principle to the common law developing in a manner that promotes rather than hinders that objective.

104. My noble and learned friend, Lord Hope of Craighead concludes from the absence of specific powers of search in the Extradition Act that Parliament did not intend police officers executing an arrest warrant in extradition proceedings to have such powers. Like Lord Hutton I would not share that conclusion. Again, the evidence of practice is of some significance. The report of the Inter-Departmental Working Party, A Review of the Law and Practice of Extradition in the United Kingdom, was published in 1982, before PACE. Chapter 11 deals with the seizure and surrender of property. The Working Party had in mind both property that might serve as proof of the extradition offence and property that was in the possession of the person being extradited and might have been acquired by him in connexion with the offence. They note that a sizeable proportion of extradition requests relate to offences such as theft and fraud and that, before section 26(1) of the Theft Act 1968 came into force, there was no provision in the Extradition Act 1870 for the issuing of search warrants where someone was arrested for such an offence. In Commonwealth cases there was a specific power to grant search warrants in such cases under section 6(5) of the Fugitive Offenders Act 1967 but

This passage from para 11.6 suggests that, even though the comfort of a search warrant could not be obtained, in practice police officers did carry out searches when executing arrest warrants - although, as in domestic cases, there was no decision of the courts to say that such searches were lawful. Again, the absence of authority one way or the other must be because the lawfulness of such searches had never been tested in the courts. When it was eventually tested before the Divisional Court in Osman, the challenge was rejected and the court declared that police officers did indeed enjoy the same common law powers of search on arrest under an extradition warrant as on arrest under a domestic warrant.

105. The Working Party suggested that section 26(1) of the Theft Act made section 6(5) of the Fugitive Offenders Act unnecessary. For some reason, however, Parliament chose to re-enact section 6(5) in section 8(6) of the Extradition Act. That provision covers only a limited range of cases. Whatever may have been the reason for retaining that specific provision, it does not in my view justify the conclusion that Parliament intended to abolish, without replacing, any common law power of search that was available in other cases. Nor did counsel point to any other provision that would have that effect.

106. I would therefore hold that at common law, before PACE was enacted, police officers arresting someone in the respondent's position in the driveway of his house would have had the power to search his house for evidence relating to the extradition offence. The Extradition Act did not abolish that power.

107. The second question for decision arises, however, because the Administrative Court held that, even if the police officers would once have had that common law power to search the respondent's house, it no longer existed, having been extinguished by PACE five years before the Extradition Act was passed. In concluding that any such power had been extinguished in this way, Brooke LJ (para 47) said that he found it:

Osman

As Lord Hutton has noted, and as indeed Brooke LJ had himself noticed in the preceding paragraph of his judgment, the true question is not whether Part II of PACE saved the common law power but whether it extinguished or abolished that power. In argument before the House Miss Montgomery accepted this and accepted also that she had to identify a provision or provisions in the legislation which had expressly or impliedly abolished the common law power. She pointed to only one provision, section 17(5), as having this effect:

108. In fact, section 17(5) has nothing whatever to do with the power of police officers to search premises for evidence once a person has been arrested. As I have already noted, in English law arrest warrants do not contain a warrant to search for the individual concerned. If arrests are to be carried out, however, it is obviously necessary that police officers should have the requisite power to search for the individual who is to be arrested. The common law made provision for this, as did various statutes dealing with particular situations. But in 1984 Parliament decided to regulate the power of police officers to enter premises to make arrests by replacing these common law and particular statutory powers with the more specific code of powers set out in section 17 of PACE. The new statutory powers for police officers were intended to be comprehensive and to replace the existing law except in the situation where the police enter premises to deal with, or to prevent, a breach of the peace. Therefore subsection (5) abolished all the police officers' common law powers of entry for the purpose of arresting persons, except in the case of breach of the peace (subsection (6)).

109. Since section 17(5) occurs within this very particular context, it is plain that it was intended to abolish only the common law powers relating to entry for the purpose of arrest. The subsection was not intended to affect the common law relating to searches for evidence carried out when someone has been arrested. Indeed Parliament only turns to deal with these kinds of search in section 18 ("Entry and search after arrest") and, as I have discussed, comes back to the topic in section 32 ("Search upon arrest"). As Miss Montgomery readily acknowledged, neither of these sections, nor indeed section 19, contains any provision to abolish the pre-existing common law on such searches. The contrast with section 17(5), abolishing the common law rules on entry and search "for purpose of arrest", points up the significance of the absence of any equivalent provision abolishing the common law rules in the case of search "after" or "upon" arrest.

110. Since neither section 17(5) nor any other provision abolishes the common law powers of search on or after arrest, Miss Montgomery's argument must fail. These common law powers remain available in cases, such as extradition cases, where the new statutory powers do not apply.

111. Brooke LJ was concerned (para 51) that, if this were the position:

It is not entirely clear to me why the common law power that Parliament has chosen not to abolish should be described as "unnoticed". But, in any event, concern about the continued existence of this common law power would be justified only if in enacting PACE Parliament had intended to make a general statement of the law relating to search which was to be applied whenever an arrest was carried out in England or Wales. There is no reason to suppose Parliament had any such intention. The Green Paper on Extradition (February 1985) presented to Parliament by the Home Secretary after the enactment of PACE certainly gave no hint that the responsible minister thought that the Act had in any way changed the law in relation to searches on arrests by virtue of an extradition warrant. Moreover, the respondent's own argument that sections 18 and 19 do not apply to such arrests - which the Administrative Court rightly accepted - shows that Parliament entertained no such far-reaching ambition. Parliament's aim was more modest: it was concerned to regulate such matters in relation to offences that were likely to be tried in England and Wales.

112. Consistently with that approach, a few years later Parliament enacted the Criminal Justice and Public Order Act 1994, Part X of which dealt with cross-border enforcement of police powers. Under section 136(2)(a) of the 1994 Act, an arrest warrant issued in Scotland can be executed in England or Wales either by a local constable or by a constable from a Scottish force. In either event, the constable executing the warrant has the same powers and duties, and the arrested person has the same rights, as they would have had if the warrant had been executed by a constable from a Scottish force in Scotland (subsection (5)(b)). In other words the constable will have the powers of search routinely granted by Scottish sheriffs when granting an arrest warrant. By contrast, where an English arrest warrant is executed in Scotland or Northern Ireland, the arresting officer has powers of search under section 139 which are similar to those conferred by PACE. Clearly, Parliament accepted that, where the trial is likely to be in Scotland, someone can be arrested in England on a Scottish warrant and subjected to a search which has none of the safeguards of PACE or of the PACE codes of conduct but only the safeguards of the common law of Scotland. There is no reason to believe that Parliament would not also have accepted that, where the offence was likely to be tried abroad, someone could be arrested in England and, in the matter of search, enjoy not the safeguards of PACE and of the PACE codes of conduct but only the safeguards of the common law of England.

113. In enacting PACE Parliament refrained from abolishing the common law powers of search of police officers executing an arrest warrant. Parliament thus, quite deliberately, left them with those common law powers and left arrested persons with the corresponding common law safeguards. When the police officers in this 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 search of his house was accordingly lawful.