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R (on the application of Rottman) v Commissioner of Police for the

Metropolis
Police Powers Right of search and seizure Entry to private premises Police officers
executing provisional warrant of arrest in extradition proceedings Police arresting fugitive
outside his house Police entering property and seizing material Whether police having
power to search and seize Whether common law power of search and seizure applying to
extradition cases Police and Criminal Evidence Act 1984, ss 17, 18 and 19 Extradition
Act 1989, s 8 Criminal Justice (International Co-operation) Act 1990, s 7
[2002] UKHL 20
(Transcript)
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HOUSE OF LORDS
LORDS, NICHOLLS OF BIRKENHEAD, HOFFMAN, HOPE OF CRAIGHEAD, HUTTON,
RODGER OF EARLSFERRY
13, 14 FEBRUARY, 16 MAY 2002
16 MAY 2002

David Perry and Sarah Whitehouse for the Appellant


C Montgomery QC and J Knowles for the Respondent
Solicitor for the Metropolitan Police; Christmas & Sheenan
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 ss
18and 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 s 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 sub-s 2(b) is confined
to domestic offences, and that s 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 s 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: s 8(3). The purpose of the arrest, as s 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 s 26(1) of the Theft Act 1968 read
with s 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 s 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 s 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 art 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 s 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, [1978] 1 All ER 555. 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, [1968] 1 All ER 229 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:
But supposing that in a search which might have been improper originally, there were matters discovered which
showed the complicity of the pursuer in a crime, then I think that the officers, I can hardly say would have been
justified, but would have been excused by the result of their search.

[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:
. . . unless forced to do so by recent binding authority, I decline to accept that a police officer who is
unquestionably justified at common law in arresting a person whom he has reasonable grounds to believe is guilty
of receiving stolen goods, is not likewise justified in the less draconian act of seizing what he, on reasonable
grounds, believes to be the stolen goods in that person's possession.

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


It would be absurd if the police had the power to arrest a man, but, having failed to catch him, had no power to
seize the goods in his house which they reasonably believed he had stolen or unlawfully received. There is no doubt
that if they find the goods in his possession when they arrest him, they may seize the goods: see the observations
of Lord Campbell in the footnote to Bessell v Wilson (1853) 20 LTOS 233; Dillon v O'Brien and Davis (1887) 16 Cox
CC 245; and Elias v Pasmore [1924] 2 KB 164. Suppose the police, reasonably believing a man has stolen some
jewellery, follow him into his house in order to arrest him. As they enter the front door, they see him disappearing
out of the back door, but there on the table is the jewellery. Surely they may seize it; the fact that he has evaded
capture cannot confer any immunity on him in respect of the stolen goods.

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,
[1969] 3 All ER 1700. 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 of
the former report:
So we have a case where the police officers, in investigating a murder, have seized property without a warrant and
without making an arrest and have retained it without the consent of the party from whom they took it. Their
justification is that they believe it to be of 'evidential value' on a prosecution for murder. Is this a sufficient
justification in law?
I would start by considering the law where police officers enter a man's house by virtue of a warrant, or arrest a
man lawfully, with or without a warrant, for a serious offence. I take it to be settled law, without citing cases, that
the officers are entitled to take any goods which they find in his possession or in his house which they reasonably
believe to be material evidence in relation to the crime for which he is arrested or for which they enter. If in the
course of their search they come upon any other goods which show him to be implicated in some other crime, they
may take them provided they act reasonably and detain them no longer than is necessary. Such appears from the
speech of Lord Chelmsford LC in Pringle v Bremner and Stirling (1867) 5 Macph HL 55, 60 and Chic Fashions (West
Wales) Ltd v Jones [1968] 2 QB 299. (Emphasis added)

[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
parte Osman [1989] 3 All ER 701, [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 theExtradition 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 of the latter report:
It is beyond dispute that, in relation to a domestic offence, a police officer entering a house in pursuance of a
warrant of arrest, or otherwise lawfully arresting a defendant, is entitled to take any goods or documents which he
reasonably believes to be material evidence in relation to the crime for which the defendant is being
arrested: Ghani v Jones [1970] 1 QB 693, 706. Is there then any difference between a warrant of arrest in
domestic proceedings and a provisional warrant under section 6 of the Fugitive Offenders Act 1967? We can see
none. The police powers of search and seizure consequent on a lawful arrest ought to be, and in our judgment are,
the same in both cases.

[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 9.369.48. 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 at p 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:
Cases where authority to search is granted by a magistrate on being convinced (at least in theory) that there is
reasonable cause to believe that the articles sought are on the premises are in a different category from searches
following arrest. In the latter case, the search will not have been subject to prior review, it will be of a speculative
nature and the goods sought will be uncertain. The question is, therefore, whether there is any clear authority for
the existence of a power to search anything more than the arrested person himself.
9.38 There is no English authority either at common law or under statute for searching an area or taking property
which is not under the immediate physical control of the person arrested.

[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 law on whether a constable has power to search the premises of an arrested person is not certain. He is
empowered to search areas under the immediate control of the prisoner, as the right to search on arrest described
in paragraph 27 [the power to search the arrested person] suggests. This certainly covers the room in which he
was arrested. Beyond this the law is unclear. There does, however, seem to be a right on arrest to search the
premises of the arrested person even if the arrest took place elsewhere. But such a search is unlawful if there is no
connection between it and the offence for which the prisoner was arrested.

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, at p 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:
Section 6(5) of the Fugitive Offenders Act 1967 provides that 'Where a warrant is issued . . . for the arrest of a
person accused of an offence of stealing or receiving stolen property or any other offence in respect of property, a
justice of the peace in any part of the United Kingdom shall have the like power to issue a warrant to search for the
property as if the offence had been committed within the jurisdiction of the justice.' The absence of any equivalent
provision from the Extradition Act 1870 for many years deprived the police officer seeking to execute a warrant of
arrest of the reassurance available from being armed at the same time with a search warrant. However the
problem is now adequately dealt with by section 26(1) of the Theft Act 1968, read with section 24(1) of the same
Act. These would permit a justice of the peace to issue a search warrant in extradition or fugitive offender cases,
and we therefore find it unnecessary to provide specific powers of search in new extradition statute.

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 s
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 s
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 s 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, at p 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 s 14 of the Criminal Procedure (Scotland) Act 1995. Section14(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:
It is beyond all doubt that, provided a person has been legally arrested by the police, they may search him for
stolen goods, or weapons, or other real evidence connecting him with the crime; and that neither his consent nor a
magistrate's warrant is required for that purpose. This applies even to the limited but well-known class of cases in

which the police are entitled to make the arrest without warrant: Jackson v Stevenson(1897) 24 R (J) 38. It is also
beyond all doubt that, provided a person has been legally arrested by the police, they may examine his person and
his clothes for bloodstains and the like, or for any mark on his person which, according to their information, was
observed on the person of the criminal when the crime was committed again, without his consent and without
any magistrate's warrant.

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:
It may be that the right to arrest in some cases infers a right to examine the clothing and person, or it may be the
property, of the arrested person, and it may be that in the interests of justice this right can be exercised without a
warrant. A policeman arresting a man in the act of committing a crime would have the right to examine the
clothing and person of the arrested individual so as to preserve evidence of the commission of the crime. That right
may even extend in certain cases to the examination of the contents of the premises in which the arrest took place.
In the ordinary case, however, such rights cannot be exercised by the police without a magistrate's warrant.
Reference may be made to the decision in Pringle v Bremner and Stirling (1867) 5 M (HL) 55, where, the Court of
Session having dismissed an action, the House of Lords reversed, holding that, as the pursuer's averments of
search and imprisonment without warrant disclosed a prima facie case of wrong, the case was relevant.

[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 s 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 s 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 parte Osman [1990] 1
WLR 277, at p 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. Section7(1) of the Extradition Act 1989 provides that a person shall not be dealt
with under Pt 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 Pt II of
PACE, in relation to powers of entry, seizure and search, shall have effect as if references to
serious arrestable offences in s 8 of and Sch 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 s 7(4) of the 1990 Act, which provides that no
application for a warrant or order shall be made by virtue of sub-s (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 ss 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 art 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 art 8 of the Convention. It is clear that searches
of private premises infringe the art 8(1) right unless the conditions in art 8(2) are
satisfied: Funke v France (1993) 16 EHRR 297. The wording of art 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, at p 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, [1998] 1 WLR 675 at p 80G-H of the former report 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 art 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 art 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:
At common law, does a police officer executing a warrant of arrest issued pursuant to section 8 of the Extradition
Act 1989 have power to search for and seize any goods or documents which he reasonably believes to be material
evidence in relation to the extradition crime in respect of which the warrant was issued?

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 assetstripping 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 s 8(1) of the Extradition Act 1989 which
provides:
(1) For the purposes of this Part of this Act a warrant for the arrest of a person may be issued
(a) on receipt of an authority to proceed
(i) by the chief metropolitan stipendiary magistrate or a designated metropolitan magistrate;
(ii) by the sheriff of Lothian and Borders;
(b) without such an authority
(i) by a metropolitan magistrate;
(ii) by a justice of the peace in any part of the United Kingdom; and
(iii) in Scotland, by a sheriff,
upon information that the said person is or is believed to be in or on his way to the United Kingdom;
and any warrant issued by virtue of paragraph (b) above is in this Act referred to as a 'provisional warrant'. . . .
(3) A person empowered to issue warrants of arrest under this section may issue such a warrant if he is supplied
with such evidence as would in his opinion justify the issue of a warrant for the arrest of a person accused or, as
the case may be, convicted within his jurisdiction and it appears to him that the conduct alleged would constitute
an extradition crime.

The provisional warrant alleged conspiracy to defraud, which is an extradition crime as


defined by s 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 s 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 Hazlemere
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 art 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:
I, therefore, think that it is clear, and beyond doubt, that, at least in cases of treason and felony, constables (and
probably also private persons) are entitled, upon a lawful arrest by them of one charged with treason or felony, to
take and detain property found in his possession which will form material evidence in his prosecution for that
crime; and I take the only real question upon this defence as being, whether this right extends to cases of
misdemeanour.

and at p 250:
the interest of the State in the person charged being brought to trial in due course necessarily extends, as well to
the preservation of material evidence of his guilt or innocence, as to his custody for the purpose of trial. His
custody is of no value if the law is powerless to prevent the abstraction or destruction of this evidence, without
which a trial would be no more than an empty form. But if there be a right to production or preservation of this
evidence, I cannot see how it can be enforced otherwise than by capture.

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, [1968] 1 All ER 229 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, [1969] 3 All ER 1700 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 of the former report:

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

[55] In R v Governor of Pentonville Prison, Ex parte Osman [1989] 3 All ER 701, [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 s 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 of the latter
report:
We do not accept Mr Ross-Munro's first objection. It is beyond dispute that, in relation to a domestic offence, a
police officer entering a house in pursuance of a warrant of arrest, or otherwise lawfully arresting a defendant, is
entitled to take any goods or documents which he reasonably believes to be material evidence in relation to the
crime for which the defendant is being arrested: Ghani v Jones [1970] 1 QB 693, 706.

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:
Is there then any difference between a warrant of arrest in domestic proceedings and a provisional warrant under
section 6 of the Fugitive Offenders Act 1967? We can see none. The police powers of search and seizure
consequent on a lawful arrest ought to be, and in our judgment are, the same in both cases.

[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
Jonesand 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, at p
706:
9.37 As regards arrests this statement goes further than the authorities will justify, perhaps because of the
confusion caused by treating powers following arrest as if they were the same as powers under a search warrant.

The assumption that the police have power to search a man's house after his arrest, at least when the arrest has
taken place in the house, is not supported by either of the cases cited by Lord Denning MR [Pringle v Bremner and
Stirling, and Chic Fashions which related to searches under a search warrant] . . . Cases where authority to search
is granted by a magistrate on being convinced (at least in theory) that there is reasonable cause to believe that the
articles sought are on the premises are in a different category from searches following arrest. In the latter case,
the search will not have been subject to prior review, it will be of a speculative nature and the goods sought will be
uncertain. The question is, therefore, whether there is any clear authority for the existence of a power to search
anything more than the arrested person himself.
9.38 There is no English authority either at common law or under statute for searching an area or taking property
which is not under the immediate physical control of the person arrested.

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,
[1968] 1 All ER 229 at p 317B of the former report, 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:
If the man's person is not sacrosanct in the eyes of the law, how can the goods which he is reasonably suspected
of having stolen or received be sacrosanct? Only if the law regards property as more important than liberty; and I
do not accept that it does so. It would be absurd if the police had the power to arrest a man, but, having failed to
catch him, had no power to seize the goods in his house which they reasonably believed he had stolen or
unlawfully received.

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
inLiangsiriprasert (Somchai) v Government of the United States of America [1991] 1 AC
225, at p 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 s 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 Pt II which contains the relevant sections
came into operation on 1 January 1986. Section17 provides:

(1) Subject to the following provisions of this section, and without prejudice to any other enactment, a constable
may enter and search any premises for the purpose
(a) of executing
(i) a warrant of arrest issued in connection with or arising out of criminal proceedings. . . .
(2) Except for the purpose specified in paragraph (e) of subsection (1) above, the powers of entry and search
conferred by this section
(a) are only exercisable if the constable has reasonable grounds for believing that the person whom he is seeking is
on the premises. . . .
(4) The power of search conferred by this section is only a power to search to the extent that is reasonably
required for the purpose for which the power of entry is exercised.
(5) Subject to subsection (6) below, all the rules of common law under which a constable has power to enter
premises without a warrant are hereby abolished.
(6) Nothing in subsection (5) above affects any power of entry to deal with or prevent a breach of the peace.

section 23 defines premises as including any place. Extradition proceedings are criminal
proceedings: see R v Governor of Brixton Prison, Ex parte Levin [1997] AC 741. Therefore
the warrant of arrest issued in this case under s 8(1)(b) of the 1989 Act was a warrant of
arrest within the meaning of s 17(1)(a)(i). Accordingly the police had power under s 17(1)
(a)(i) to enter the Respondent's premises for the purpose of executing the warrant of arrest
but, by reason of s 17(4), the police, having arrested the Respondent, had no power to
search his house.
[65] Section18 provides:
(1)Subject to the following provisions of this section, a constable may enter and search any premises occupied or
controlled by a person who is under arrest for an arrestable offence, if he has reasonable grounds for suspecting
that there is on the premises evidence, other than items subject to legal privilege, that relates
(a) to that offence; or
(b) to some other arrestable offence which is connected with or similar to that offence.
(2) A constable may seize and retain anything for which he may search under subsection (1) above.
(3) The power to search conferred by subsection (1) above is only a power to search to the extent that is
reasonably required for the purpose of discovering such evidence.

Section 18 then sets out certain procedures to be observed:


(4) Subject to subsection (5) below, the powers conferred by this section may not be exercised unless an officer of
the rank of inspector or above has authorised them in writing.
(5) A constable may conduct a search under subsection (1) above
(a) before taking the person to a police station; and

(b) without obtaining an authorisation under subsection (4) above,


if the presence of that person at a place other than a police station is necessary for the effective investigation of
the offence.
(6) If a constable conducts a search by virtue of subsection (5) above, he shall inform an officer of the rank of
inspector or above that he has made the search as soon as practicable after he has made it.
(7) An officer who
(a) authorises a search; or
(b) is informed of a search under subsection (6) above, shall make a record in writing
(i) of the grounds for the search; and
(ii) of the nature of the evidence that was sought.
(8) If the person who was in occupation or control of the premises at the time of the search is in police detention at
the time the record is to be made, the officer shall make the record as part of his custody record.

Section 19 provides:
(1) The powers conferred by subsections (2), (3) and (4) below are exercisable by a constable who is lawfully on
any premises. . . .
(3) The constable may seize anything which is on the premises if he has reasonable grounds for believing
(a) that it is evidence in relation to an offence which he is investigating or any other offence; and
(b) that it is necessary to seize it in order to prevent the evidence being concealed, lost, altered or destroyed. . . .
(5) The powers conferred by this section are in addition to any power otherwise conferred.

[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 s 18 and s 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. Section18 only applies to the premises of a person
who is under arrest for an arrestable offence. An arrestable offence is defined in s 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 s 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 s 24(1).
[67] Nor, in my opinion, can the Appellant rely on s 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 parte Sorsky Defries [1996] Crim LR
195 (and transcript 6 July 1995) the Divisional Court held that the words in s 19(3)(a) any
other offence were confined to domestic offences because (following Cox v Army
Council [1963] AC 48, [1962] 1 All ER 880 Air-India v Wiggins [1980] 2 All ER 593, [1980]
1 WLR 815and Macleod v Attorney-General for New South Wales [1891] AC 455, at p 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
s 8(1)(a) of PACE and s 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:
(1) Part II of the Police and Criminal Evidence Act 1984 (powers of entry, search and seizure) 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.

Referring to s 7(1) McCowan LJ stated:


That very provision militates against a construction that allows 'offence' elsewhere in Part II of the 1984 Act to
include a foreign offence.

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 subclause (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 s 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 s 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 s 18(1)(b) of the 1989 Act was
extinguished by PACE. The reasoning of the Divisional Court on this question is contained in
paras 46 to 53 of its judgment. Brooke LJ stated, at paras 46-47:
46. I turn now to the question whether we should now hold that whatever the position might have been before
PACE came into force, this common law power must be taken to have been extinguished. It is at once noticeable
that Osman was decided in the interval between PACE's appearance on the statute book on 31 October 1984 and
the date when Part II of PACE came into force. Parliament would therefore have been unaware of this latest
extension of the police's common law powers when it was considering the bill which became PACE.
47. I find it quite impossible to interpret Part II of PACE as providing any saving for the common law power
identified by Lloyd LJ in Osman. While it is true that section 18 contains no provision comparable to section 17(5) ('
. . . all the rules of common law under which a constable has power to enter premises without a warrant are hereby
abolished'), it appears to me that Parliament intended section 18 to provide in codified form for the full extent of a
constable's power to enter and search premises after an arrest (for the purposes identified in that section), and
intended it to be limited to police inquiries into domestic offences.

[70] In para 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 para 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 s 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 para 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 s 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 para 51:
If Mr Perry was correct, then an unnoticed common law power of search would have survived the coming into
force of PACE but would not have attached to it any of the disciplines created by section 18 of PACE or PACE Code
of Practice B (see para 1.3 for the searches to which that code applies). . . .

[74] He then stated, at paras 52-53:


52. For these reasons, I am satisfied that the common law power of search which was identified by this court
in Osman was extinguished when Part II of PACE came into force. I am also satisfied and indeed the contrary was
not argued that the police possessed no statutory power of entry and search without a warrant outside the four
corners of PACE, and PACE gave them no such power in an extradition context. Given that Parliament has decided
to set out the extent of police powers of entry and search without a warrant, I do not consider that it would be
appropriate for us to create new common law powers today. I do not need to repeat in this judgment the
submissions we received from Miss Montgomery on the ECHR requirements of clarity and accessibility in the
context of a potential violation of Article 8(1) of the Convention. Where Parliament has legislated in fine detail in
relation to the exercise of powers of entry and search without a warrant in a domestic context, judges should not
act as substitute lawmakers in order to identify similar powers in an extradition context to which no such fine detail
by necessity could be attached. Because there was no lawful justification for the search without a warrant, Mr
Rottman's Article 8(1) rights were violated.
53. I must make it clear that nothing in this judgment must be taken as negativing any power of the police to seize
articles found in the possession of the person they are arresting. What the police needed in this case was (i) a
power to enter the dwellinghouse (which Mr Rottman cannot be taken to have given them voluntarily for the
purpose of searching it) and (ii) a power to search it. In the absence of a warrant from a court they possessed
neither of these powers. In the interests of completeness I would add that if the search was otherwise lawful, I do

not consider that the involvement of the two German police officers, even on Mr Rottman's account of the matter,
would have rendered it unlawful.

[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 para 47:
I find it quite impossible to interpret Part II of PACE as providing any saving for the common law power identified
by Lloyd LJ in Osman.

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 s 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 para 22 stated:
It is 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 (Rec 48).

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 s 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 s 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 s 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 para 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 s 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 s 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:
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance
with the law and is necessary in a democratic society in the interests of national security, public safety or the
economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals,
or for the protection of the rights and freedoms of others.

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 art 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 parte Levin [1997] AC 741 at pp 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 s 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 ss 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 ss 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 s 32.
[85] Part I of PACE deals with Powers to Stop and Search and is not relevant for present
purposes. Part II, comprising ss 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 (s 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 (s 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 (s 20), the
power being in addition to any power otherwise conferred (s 19(5)). Section 22 allows items
seized under ss 19 and 20 to be retained as long as is necessary in all the circumstances.
[86] Then comes Pt III which is headed Arrest and which runs from s 24 to s 33. These
sections contain wide-ranging provisions dealing with what is to happen when if need be,
after a search under s 17 the individual is arrested. Among these provisions is s 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 sub-ss

(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:
to enter and search any premises in which he was when arrested or immediately before he was arrested for
evidence relating to the offence for which he has been arrested.

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 ss 19 and 20, while s 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 sub-ss (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 s 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 s 32 would give the police
officers power to search his person (sub-s (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
(sub-s (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, s 18 rather than s 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, s 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 s 18(1) gives a power to enter and search premises
occupied or controlled by the person who is under arrest and sub-s (2) gives power to seize
and retain what is found. Significantly, however, these powers to enter and search under
sub-s (1) are subject to certain safeguards, as envisaged in the recommendations of the
Royal Commission on Criminal Procedure referred to in para 17 below. In addition the
powers cannot usually be exercised unless an officer of the rank of inspector or above has
authorised them (sub-s (4)). This is similar to the requirement that applied under s 42 of
the Larceny Act 1916 and s 26of 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, [1978] 1 All ER 555).
[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 s 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 s 32 rather than in s
18 and that their powers of seizure and retention of any items were to be found in ss 19, 20
and 22 rather than in ss 18(2) and 20. It is, however, unnecessary to decide the point in
this case since the power in s 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
para 26 of his speech, in relation to s 19(3)(a), I am satisfied that in s 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, [1969] 3 All ER 1700 at p 706A C of the
former report:
I would start by considering the law where police officers enter a man's house by virtue of a warrant, or arrest a
man lawfully, with or without a warrant, for a serious offence. I take it to be settled law, without citing cases, that
the officers are entitled to take any goods which they find in his possession or in his house which they reasonably
believe to be material evidence in relation to the crime for which he is arrested or for which they enter. If in the
course of their search they come upon any other goods which show him to be implicated in some other crime, they
may take them provided they act reasonably and detain them no longer than is necessary. Such appears from the
speech of Lord Chelmsford LC, in Pringle v Bremner and Stirling (1867) 5 Macph HL 55, 60 and Chic Fashions
(West Wales) Ltd v Jones [1968] 2 QB 299.

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 parte
Osman [1989] 3 All ER 701, [1990] 1 WLR 277 at p 311G H of the former report, Lloyd
LJ, giving the judgment of the Divisional Court, held that a police officer executing a
provisional warrant under s 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 s
8 of theExtradition 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 inOsman 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, [1968] 1 All ER 229 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, Ch 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:
to search the dwelling of a person for whose arrest a warrant has been issued, and, in cases of arrest without
warrant, to search premises as well as the arrested person, in cases of serious crime whenever it seems likely that
any material evidence can be obtained. In normal cases, the police obtain the consent of the occupiers before
carrying out a search in such circumstances. But it appears that, in the event of a refusal of consent, the police, if
they proceed with the search, may be faced with the risk of a subsequent action for trespass. This is a risk which is
commonly taken by the police and the practice seems to have had the tacit approval of the courts for so long that,
in the opinion of the Home Office, it has become part of the common law.

The matter is restated in Ch 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 existing practice of the police as to the search of premises is, in the main, necessary and proper in the
interests of justice and cannot be regarded as in any way an undue infringement of the rights and liberties of the
subject.

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 Ch 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 at pp 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 parte 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 preexisting 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 s 32 or s 18 of PACE, along with ss 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 wellestablished 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:
to grant warrant to search the person, repositories, and domicile of said accused, and the house or premises in
which he may be found, and to secure for the purpose of precognition and evidence all writs, evidents, and articles
found otherwise tending to establish guilt or participation in the crime foresaid, and for that purpose to make
patent all shut and lockfast places.

(See the petition set out in form 1 in App 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 s 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 s 6(5) of the Fugitive
Offenders Act 1967 but,
[t]he absence of any equivalent provision from the Extradition Act 1870 for many years deprived the police officer
seeking to execute a warrant of arrest of the reassurance available from being armed at the same time with a
search warrant.

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 s 26(1) of the Theft Act made s 6(5) of the
Fugitive Offenders Act unnecessary. For some reason, however, Parliament chose to re-enact
s 6(5) in s 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:
quite impossible to interpret Part II of PACE as providing any saving for the common law power identified by Lloyd
LJ in 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 Pt 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, s 17(5), as having this effect:
Subject to subsection (6) below, all the rules of common law under which a constable has power to enter premises
without a warrant are hereby abolished.

[108] In fact, s 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 s 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 sub-s (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 (sub-s (6)).
[109] Since s 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 s 18 (Entry and search after arrest) and, as I have discussed,
comes back to the topic in s 32 (Search upon arrest). As Miss Montgomery readily
acknowledged, neither of these sections, nor indeed s 19, contains any provision to abolish
the pre-existing common law on such searches. The contrast with s 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 s 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:
then an unnoticed common law power of search would have survived the coming into force of PACE but would not
have attached to it any of the disciplines created by section 18 of PACE or PACE Code of Practice B. . ..

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 ss 18 and 19 do not apply to such arrests which the
Administrative Court rightly accepted shows that Parliament entertained no such farreaching 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, Pt X of which dealt with cross-border enforcement of
police powers. Under s 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 (sub-s (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 s
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.
Appeal dismissed, Lord Hope of Craighead dissenting.