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*692 Regina (Rottman) v Commissioner of Police of the Metropolis

House of Lords
16 May 2002

[2002] UKHL 20
[2002] 2 A.C. 692
Lord Nicholls of Birkenhead , Lord Hoffmann , Lord Hope of Craighead , Lord Hutton and Lord Rodger
of
Earlsferry
2002 Feb 13, 14; May 16
Police—Search, right of—Premises—Extradition proceedings—Search of premises for evidence
following
arrest of alleged fugitive—Whether common law power of search and seizure following arrest allowing
search of entire premises—Whether applicable in extradition cases—Whether extinguished on coming
into force of statutory powers governing entry and search—Whether statutory powers extending to
extradition cases— Police and Criminal Evidence Act 1984 (c 60), ss. 18, 19, 32(2)(b) — Human
Rights
Act 1998 (c 42), Sch. 1, Pt I, art 8
In 1996 a warrant was issued by a court in Germany for the arrest of the claimant in connection with
alleged fraud offences in Germany. In 2000, when it was believed that the claimant was living in
England at an unknown address, a provisional warrant for his arrest was issued by the Bow Street
Magistrates' Court under section 8(1)(b) of the Extradition Act 1989 . As a result of a surveillance
operation the claimant was followed into the drive of the house where he had been living and he was
arrested by three police officers a few yards from his front door. Thereafter the officers entered and
searched the house and removed items belonging to the claimant which they suspected might hold
evidence of the alleged offences or proceeds of the offences, having acted in purported reliance on
section 18 in Part II of the Police and Criminal Evidence Act 1984
1
and in the belief that they had in
any event power under the common law to search the premises of a suspect following his arrest on
an extradition warrant. The claimant applied to the Divisional Court for an order *693 directed to the
Commissioner of Police of the Metropolis requiring the delivery up of all items seized and a declaration
that the entry and search had been unlawful and in breach of the claimant's rights under article 8 of
the Convention for the Protection of Human Rights and Fundamental Freedoms, as scheduled to the
Human Rights Act 1998
2
. The Divisional Court held that the statutory powers of entry, search and
seizure without a warrant in Part II of the 1984 Act did not extend to extradition cases, that any
powers of search under the common law had been extinguished when the 1984 Act came into force
and that accordingly the search and seizure had been unlawful and in violation of the claimant's
rights under article 8.
On the commissioner's appeal—
Held:
(1) that, although police officers executing a provisional warrant for the arrest of a person wanted
for extradition were entitled under section 17 of the 1984 Act to enter premises in order to search
Positive or Neutral Judicial Treatment
for that person so as to effect the arrest, the powers of entry, search and seizure following arrest
conferred by sections 18 and 19 of the Act, and that conferred by section 32(2)(b) of the Act, were
confined to domestic offences; and that, accordingly, there was no power under the Act which
would have permitted the search of the claimant's premises following his arrest on the provisional
warrant in connection with the alleged fraud offences in Germany (post, paras 1, 2, 3, 64, 66-68,
82, 84-88).
But (2) allowing the appeal (Lord Hope of Craighead dissenting), that before the enactment of the
1984 Act police officers effecting the arrest of a suspect in his home pursuant to an arrest warrant
for a domestic offence had been entitled under the common law not only to search the arrested
person and seize items found upon him or in the room where he was arrested, but also to search the
remainder of the house and seize any items found there which were reasonably believed to be
material evidence, and no distinction was to be drawn for that purpose between an arrest in the
house itself or in its grounds; that police officers had the same power when executing an arrest
warrant relating to extradition proceedings, and since nothing in the 1984 Act evinced an intention
by Parliament to revoke that power it continued to be available; that since the exercise of the
power was therefore in accordance with the common law, and was for the legitimate aim of
preventing crime and subject to the safeguard that its use was dependent on the issue of an arrest
warrant, so as to make it proportionate to that aim, it did not infringe article 8 of the Convention;
and that, accordingly, the search and seizure operation at the claimant's house had been lawful
(post, paras 1, 2, 46, 57-63, 75, 79-82, 90, 99, 103, 113).
Ghani v Jones[1970] 1 QB 693, CA and R v Governor of Pentonville Prison, Ex p Osman[1990] 1 WLR
277, DC approved .
Decision of the Divisional Court of the Queen's Bench Division [2001] EWHC Admin 576reversed .
The following cases are referred to in their Lordships' opinions:
Adair v M'Garry 1933 JC 72 Air-India v Wiggins [1980] 1 WLR 815; [1980] 2 All ER 593, HL(E) Bessell
v Wilson (1853) 20 LTOS 233 Chic Fashions (West Wales) Ltd v Jones [1968] 2 QB 299; [1968] 2 WLR
201; [1968] 1 All ER 229, CA Cox v Army Council [1963] AC 48; [1962] 2 WLR 950; [1962] 1 All ER
880, HL(E) de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing
[1999] 1 AC 69; [1998] 3 WLR 675, PC Dillon v O'Brien and Davis (1887) 16 Cox CC 245 Elias v
Pasmore [1934] 2 KB 164 Entick v Carrington (1765) 19 State Tr 1029; 2 Wils 275 Funke v France
(1993) 16 EHRR 297 Ghani v Jones [1970] 1 QB 693; [1969] 3 WLR 1158; [1969] 3 All ER 1700, CA
*694 Jeffrey v Black [1978] QB 490; [1977] 3 WLR 895; [1978] 1 All ER 555, DC Liangsiriprasert
(Somchai) v Government of the United States of America [1991] 1 AC 225; [1990] 3 WLR 606;
[1990] 2 All ER 866, PC Macleod v Attorney General for New South Wales [1891] AC 455, PC Pringle v
Bremner and Stirling (1867) 5 Macph 55, HL(Sc) R v Governor of Brixton Prison, Ex p Levin [1997] AC
741; [1997] 3 WLR 117; [1997] 3 All ER 289, HL(E) R v Governor of Pentonville Prison, Ex p Osman
[1990] 1 WLR 277; [1989] 3 All ER 701, DC R v Shayler [2002] UKHL 11; [2002] 2 WLR 754; [2002]
2 All ER 477, HL(E) R v Southwark Crown Court, Ex p Sorsky Defries [1996] Crim LR 195, DC R (Daly)
v Secretary of State for the Home Department [2001] UKHL 26; [2001] 2 AC 532; [2001] 2 WLR
1622; [2001] 3 All ER 433, HL(E) Sunday Times, The v United Kingdom (1979) 2 EHRR 245
The following additional cases were cited in argument:
Cowan v Condon [2000] 1 WLR 254; [2000] 1 All ER 504, PC
Evans, In re [1994] 1 WLR 1006; [1994] 3 All ER 449, HL(E) George v Rockett (1990) 93 ALR 483
Hunter v Southam Inc (1984) 11 DLR (4th) 641 McLorie v Oxford [1982] QB 1290; [1982] 3 WLR
423; [1982] 3 All ER 480, DC Malone v United Kingdom (1984) 7 EHRR 14 R v Governor of Pentonville
Prison, Ex p Sotiriadis [1975] AC 1; [1974] 2 WLR 253; [1974] 1 All ER 692, DC and HL(E) R v
Hughes [1998] DCR 1069, NZ District Court R v Lushington, Ex p Otto [1894] 1 QB 420, DC R v
Manchester Stipendiary Magistrate, Ex p Granada Television Ltd [2001] 1 AC 300; [2000] 2 WLR 1;
[2000] 1 All ER 135, HL(E) SW v United Kingdom (1995) 21 EHRR 363
APPEAL from the Divisional Court of the Queen's Bench Division
This was an appeal, by leave of the House of Lords (Lord Steyn, Lord Hope of Craighead and Lord
Millett), by the Commissioner of Police of the Metropolis, from the decision of the Divisional Court of
the
Queen's Bench Division (Brooke LJ and Harrison J) granting the claimant, Michael Rottman, a
declaration
that the decision of three Metropolitan police officers to enter the claimant's house at 58 Magnolia
Drive,
Hazelmere, High Wycombe on 23 September 2000 to search for and seize items was unlawful and in
violation of the claimant's rights under article 8 of the Convention for the Protection of Human Rights
and Fundamental Freedoms , and requiring the return of all items seized.
The Divisional Court certified in accordance with section 1(2) of the Administration of Justice Act 1960
the following point of law of general public importance:
"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 facts are stated in the opinion of Lord Hutton.
David Perry and Sarah Whitehouse for the defendant. Police officers lawfully arresting a person have a
common law power to seize what they *695 reasonably believe to be the fruits, or evidence or
instruments, of serious crime: see Chic Fashions (West Wales) Ltd v Jones[1968] 2 QB 299 and Ghani
v
Jones[1970] 1 QB 693 . [Reference was also made to Bessell v Wilson(1853) 20 LTOS 233 ; Dillon v
O'Brien and Davis(1887) 16 Cox CC 245 ; Pringle v Bremner and Stirling(1867) 5 Macph 55 ; R v
Lushington, Ex p Otto[1894] 1 QB 420 and the Report of an Interdepartmental Working Party, A
Review
of the Law and Practice of Extradition in the United Kingdom (Home Office, May 1982).] The power
applies to arrest in connection with extradition proceedings: see R v Governor of Pentonville Prison, Ex
p
Osman[1990] 1 WLR 277 . The power is exercisable when the officers are lawfully on premises. In the
instant case the officers were lawfully on the defendant's premises under section 17(1)(a) of the Police
and Criminal Evidence Act 1984 ("PACE") since they had entered to execute a warrant of arrest.
That common law power has been supplemented but not replaced by the powers of search and seizure
under PACE: see section 19(5) of PACE. The search and seizure made by the officers were therefore
also lawful under sections 18(1) and 19(2)(3)(4) of PACE. Although it was held in R v Southwark
Crown
Court, Ex p Sorsky Defries[1996] Crim LR 195 that section 19(3) did not extend to foreign offences,
an
extradition warrant is issued and executed on the basis that it identifies a domestic offence. It is
possible to read sections 18(1) and 19(3)(4) as applying to the domestic offence identified in the
warrant. The Act should be interpreted so as to enable the police to carry out effective investigation
and preserve evidence: see Cowan v Condon[2000] 1 WLR 254, 265 .
There are sufficient safeguards for the fugitive. Extradition is only available in respect of serious
crimes,
and a warrant of arrest under section 8 of the 1989 Act may only be issued if a magistrate is satisfied
that a charge has been properly laid against the accused: see In re Evans[1994] 1 WLR 1006, 1010-
1011 .
There was no violation of article 8 of the Convention for the Protection of Human Rights and
Fundamental Freedoms. The search and seizure operations were in accordance with the law and
proportionate to the aim in a democratic society of prevention of crime.
Clare Montgomery QC and Julian Knowles for the claimant. The dictum of Lord Denning MR in Ghani v
Jones[1970] 1 QB 693, 705-706 suggesting that a police officer was entitled at common law, when
effecting an arrest in a room, to conduct a search of other parts of the premises for evidence was an
unwarranted departure from previous authority. R v Governor of Pentonville Prison, Ex p
Osman[1990] 1
WLR 277 was wrong in applying the dictum to extradition cases. No extradition treaty requires the
requested state to conduct a search and seizure. [Reference was made to Liangsiriprasert (Somchai) v
Government of the United States of America [1991] 1 AC 225, 250-251 .]
The police had no power to enter and search the defendant's house under section 17 of PACE . The
power of entry under the section can be exercised only for the purpose of effecting an arrest, but the
defendant had already been arrested on his driveway. There was no common law power allowing a
police
officer who had completed an arrest to enter and search a dwelling house without a warrant: see
McLorie v Oxford[1982] QB 1290 and Jeffrey v Black[1978] QB 490 . *696 In any event, the common
law power of search was abolished on the coming into force of PACE: see section 17(5) .
The police had no power to act under section 18 or 19 of PACE : see R v Southwark Crown Court, Ex p
Sorsky Defries[1996] Crim LR 195 . [Reference was also made to R v Governor of Pentonville Prison,
Ex p
Sotiriadis[1975] AC 1 and R v Manchester Stipendiary Magistrate, Ex p Granada Television Ltd [2001]
1
AC 300 .]
Searches of private or business premises infringe article 8(1) of the Convention unless the
requirements
of article 8(2) are met, in particular the requirement that the law should have sufficient clarity,
precision
and accessibility: see Malone v United Kingdom(1984) 7 EHRR 14 . [Reference was also made to
Funke v
France(1993) 16 EHRR 297 ; Hunter v Southam Inc(1984) 11 DLR (4th) 641 ; R v Hughes[1998] DCR
1069 and George v Rockett(1990) 93 ALR 483 .]
Perry , in reply, referred to SW v United Kingdom(1995) 21 EHRR 363 .
Their Lordships took time for consideration. 16 May. LORD NICHOLLS OF BIRKENHEAD
1 My Lords, 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
2 My Lords, 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
3 My Lords, my noble and learned friend, Lord Hutton, whose speech I have had the advantage of
reading in draft, has described the background to this case. I gratefully adopt his account of it. For the
reasons which he has given, and for the reasons given by my noble and learned friend, Lord Rodger of
Earlsferry, I agree that the powers which are given to the police by sections 18 and 19 of the Police
and
Criminal Evidence Act 1984 ("PACE") do not apply where a person is arrested under a provisional
warrant
for an extradition offence. I also agree with Lord Rodger that the power in section 32 of that Act to
search premises in which the person was when he was arrested does not apply either as the term
"offence" in subsection (2)(b) is confined to domestic offences, and that section 17(5) of PACE has
nothing to do with the power of the police to search premises once a person has been arrested. I
regret
however that I am unable to agree with my noble and learned friends' analysis of the powers which
are
available to a police officer at common law where he is in possession of an arrest warrant.
4 As Lord Hutton has explained, we are concerned here with a provisional warrant for the arrest of the
respondent which was issued under section 8(1) of the Extradition Act 1989 . A magistrate has power
to
issue a *697 warrant of arrest under that section if he is supplied with sufficient evidence to satisfy
him
that he would be justified in issuing a warrant for the arrest of a person accused of a crime committed
within his jurisdiction and that the conduct alleged would constitute an extradition crime: section 8(3)
.
The purpose of the arrest, as section 9(1) makes clear, is to enable the respondent to be brought
before a court of committal as soon as practicable with a view to the commencement of extradition
proceedings against him in that court. Section 8(6) provides that, where a warrant is issued under
that
section for the arrest of a person accused of an offence of stealing or receiving stolen property
committed in a designated Commonwealth country or colony, the magistrate shall have the like power
to
issue a warrant to search for the property as if the offence had been committed within his jurisdiction.
But the magistrate did not have power to issue a warrant for search for property in this case, as the
alleged offence was one of fraud and it was said to have been committed in Germany. The only power
which he had under this statute was to issue a warrant for the respondent's arrest. He had power
under
section 26(1) of the Theft Act 1968 read with section 24(1) of that Act to issue a warrant to search for
and seize stolen goods, but it was not alleged that the respondent had any stolen goods in his custody
or possession or on his premises.
5 Had it not been for the possibility that a police officer executing a warrant of arrest issued under
section 8(1) of the 1989 Act has powers of search at common law, therefore, the position in this case
would have been quite straightforward. The warrant which was issued to him was a warrant of arrest
only. Its sole purpose was to enable the respondent to be taken into custody. It was not a warrant to
search. Its purpose was served as soon as the respondent had been arrested in the driveway of his
house a few yards from its front door. The decision to search the house was not taken for the purpose
of effecting the arrest. It was taken because two German police officers who arrived at the premises
afterwards, having spoken to the public prosecutor in Germany, asked for the house to be searched.
This was because they suspected that there were computers, computer disks and financial documents
which might hold evidence of the offences which the respondent was alleged to have committed or
proceeds of those offences. But the officer of the Metropolitan Police to whom that request was made
did not have a warrant to search the house. If he had asked for one to be issued to him under section
8(6) of the 1989 Act, it would have been refused. The statutory powers under PACE were not
available.
In the absence of a relevant common law power, it is plain that the entry and search of the house
which
the police carried out was unlawful, and that the respondent's rights under article 8 of the European
Convention for the Protection of Human Rights and Fundamental Freedoms were violated.

The common law power

6 There is no doubt that a police officer had power at common law, when executing a warrant for a
person's arrest, to search the suspect and to seize any articles which he might find on his person or in
his immediate vicinity which might constitute material evidence against him for the purpose of
preserving
that evidence until trial. The question which is in dispute is whether this common law power extended
to
a search of the premises where the arrest took place for evidence as well as to a search of the *698
person of the suspect. In view of the powers of search upon an arrest which are given to a constable
by section 32 of PACE this question is no longer a live issue where the offence for which the person
was
arrested is a domestic offence. I consider that the authorities as to the state of the common law prior
to the coming into force of PACE are at best unclear on the point. Its development was not assisted by
the fact that the test as to whether evidence obtained in the course of a search is admissible was
whether the evidence was relevant and not whether it had been properly obtained: Jeffrey v
Black[1978] QB 490 . In that context there was no need to address the question whether the search
was lawful. In the present case it is directly relevant. In my opinion the better view is that the
constable had no common law power to carry out a search of the premises for evidence unless he had
the person's consent or the authority of a search warrant.
7 In Chic Fashions (West Wales) Ltd v Jones[1968] 2 QB 299 Lord Denning MR reviewed the cases
relating to the power of a constable entering a house in possession of a search warrant to seize goods
not covered by the warrant but which he reasonably believed to have been stolen and to be material
evidence on a charge of stealing or receiving against the person in possession of them. They included
the Scottish case of Pringle v Bremner and Stirling(1867) 5 Macph 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 [1968] 2 QB 299, 311:
"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 *699 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: [1968] 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 Diplock LJ said, at p 316:
"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 319-320:
"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[1934] 2 KB 164 . Suppose the police, reasonably believing
a man has stolen some jewellery, follow him into his house in order to arrest him. As they
enter the front door, they see him disappearing out of the back door, but there on the table
is the jewellery. Surely they may seize it; the fact that he has evaded capture cannot
confer any immunity on him in respect of the stolen goods."
But the situations contemplated in these passages, where stolen goods are found in the person's
possession when he is arrested or are in plain view as he evades arrest, are not those which are under
consideration in this case. What their Lordships had in contemplation was a power to seize stolen
goods
which they find in his possession or they happen to see while they are attempting to effect the arrest.
There is no discussion in these judgments of the question whether the police officer, having effected
the
arrest, would then be entitled at common law to conduct a search of the premises for evidence.
11 The only passage in the authorities which may be said to be directed to this precise issue is to be
found in the judgment of Lord Denning MR in Ghani v Jones[1970] 1 QB 693 . That was a case where
police officers who were inquiring into a woman's disappearance searched without warrant the house
of
the woman's father-in-law. At their request the father-in-law handed over to them various documents
which included several passports. *700 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 JonesLord Denning MR said, at pp 705-706:
"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 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 MR's use of the phrase "in the course of their search"?
14 In my opinion the best guide to what Lord Denning MR 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 MR'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 *701 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 MR'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 MR's
observations. But here again the judges' comments on the issue that arises in this case were obiter.
16 The only other case which bears on this issue is R v Governor of Pentonville Prison, Ex p
Osman[1990] 1 WLR 277 . In that case the police officers were in possession of a search warrant
issued
under the Forgery Act 1981 and a provisional warrant issued under section 6 of the Fugitive Offenders
Act 1967 (from which section 8(1) of the Extradition Act 1989 is derived). They arrested Osman on
the
provisional warrant and then carried out a search in the course of which they removed a large number
of
documents. Objection was taken to the search on the ground that there was no common law power to
search and seize documents in relation to a crime alleged to have been committed abroad. It was
rejected by the Divisional Court for the following reasons which were given by Lloyd LJ, at p 311:
"It is beyond dispute that, in relation to a domestic offence, a police officer entering a house
in pursuance of a warrant of arrest, or otherwise lawfully arresting a defendant, is entitled
to take any goods or documents which he reasonably believes to be material evidence in
relation to the crime for which the defendant is being arrested: Ghani v Jones[1970] 1 QB
693, 706 . Is there then any difference between a warrant of arrest in domestic proceedings
and a provisional warrant under section 6 of the Fugitive Offenders Act 1967? We can see
none. The police powers of search and seizure consequent on a lawful arrest ought to be,
and in our judgment are, the same in both cases."
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 MR's *702 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 in The Law
Relating to Entry, Search and Seizure (1986) , pp 241-247, paras 9.36-9.48 . In para 9.36 he
observes
that, when a person is arrested in private premises, police practice prior to PACE was to search the
whole of the house or flat and remove any evidence they found and that this practice relied for
common
law authority on the dictum of Lord Denning MR in Ghani v Jones[1970] 1 QB 693, 706 . In para 9.48
he
says that PACE did what the Royal Commission on Criminal Procedure had recommended by
regularising
the existing police practice on search of the premises where the person is arrested. Of particular
interest
for present purposes is his examination of the common law in paras 9.37-9.47. As he points out,
police
practice is one thing. What the law is on the matter is quite another. Unless authorised by judicial
decision or by statute, police practice is no more than that. It is not the law.
19 In para 9.37 Professor Feldman says that Lord Denning MR's statement went further than was
justified by the authorities, perhaps because of the confusion caused by treating powers of arrest as if
they were the same as powers under a search warrant, and that the assumption that the police had
power to search a man's house after his arrest was not supported by either of the cases which Lord
Denning MR 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-I). Its conclusions as to the
powers of the police on arrest are stated, at p 11, para 29 of the report:
"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 is 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."
*703 The authority for the point made in the last sentence is to be found in the judgment of Lord
Widgery CJ in Jeffrey v Black[1978] QB 490, 497c . The fact that the law on whether a constable has
power to search the premises of an arrested person was thought in 1981 by the Royal Commission to
be
uncertain supports the view which I myself have formed as to the state of the law at that time.
21 The Report of an Interdepartmental Working Party, A Review of the Law and Practice of Extradition
in
the United Kingdom (Home Office, May 1982) contains this observation, at p 65, para 11.6:
" 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 a 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 section 26(1) of the Theft Act 1968. It was
noted at p 64, para 11.3 of the report that a sizeable proportion of requests made to the United
Kingdom relate to offences such as theft and fraud, and that it was not uncommon for property
discovered during searches carried out on or after the fugitive's arrest to be exhibited to the court
during extradition proceedings and surrendered to the requesting country with the fugitive. The