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Cite as: [2001] EWHC Admin 576

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

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

B e f o r e :


LORD JUSTICE BROOKE
and
MR JUSTICE HARRISON
- - - - - - - - - - - - - - - - - - - - -


REGINA
On the application of MICHAEL ROTTMAN


Claimant


- and -



(1) THE COMMISSIONER OF POLICE FOR THE METROPOLIS
(2) THE SECRETARY OF STATE FOR THE HOME DEPARTMENT


Defendants


- - - - - - - - - - - - - - - - - - - - -
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Clare Montgomery QC and Julian Knowles (instructed by Christmas & Sheehan for the Claimant)
David Perry (instructed by the Solicitor for the Metropolitan Police for the First Defendant)
- - - - - - - - - - - - - - - - - - - - -


Judgment
As Approved by the Court
Crown Copyright ©

LORD JUSTICE BROOKE:
This is the judgment of the court.
1. This is an application by Michael Rottman for judicial review of decisions by officers of the Metropolitan Police to enter his home at 58 Magnolia Dene, Hazelmere, High Wycombe on 23rd September 2000 and to search for and seize items there.
2. Mr Rottman is a German national and a businessman. He was 57 years old at the time of the events with which these proceedings are concerned. On 27th December 1996 a warrant had been issued for his arrest by the local court at Tiergarten in Germany. Four other people are also named on the warrant, which contains an allegation that Mr Rottman and others committed offences of fraud in Germany. The events in question date back to 1990 and arise out of Mr Rottman's alleged role in the purchase and subsequent asset-stripping of an East German power supply company by a Swiss shell company with which he was associated. Mr Rottman left Germany at the end of 1995. The German authorities believe that he has access to funds stolen from the East German company.
3. On 13th September 2000 the Metropolitan Police received a request from the German authorities, via Interpol, for Mr Rottman's extradition to Germany. At that time it was known that he was somewhere in the South of England (or the Channel Islands) but his precise whereabouts were not known. On 22nd September 2000 a provisional warrant for his arrest was issued by the Bow Street Magistrates' Court under section 8(1)(b) of the Extradition Act 1989. The warrant showed that he was accused of conspiracy to defraud, which is an extradition crime. The information placed before the court would have justified the issue of a warrant for the arrest of a person accused of such an offence in the United Kingdom.
4. Following a surveillance operation, on Saturday 23rd September 2000 Mr Rottman and his wife and children were seen meeting a man called Fuessner in Henley-on-Thames. They were then all followed to 58 Magnolia Dene, Hazelmere, High Wycombe. This is a large detached property set in its own grounds. Shortly after 1pm the car carrying Mr Rottman and his family and Mr Fuessner entered the driveway of the property. Mr Rottman was arrested pursuant to the warrant a few yards from the front door of the house. Three police officers were present at the arrest, and we have a statement from each of them.
5. The description in paragraphs 5 to 13 of this judgment of the events which followed is taken from evidence filed on behalf of the defendants. Detective Sergeant Loudon was in charge. He decided that Mr Rottman should be arrested as soon as possible after arriving at what appeared to be his home address. The other two officers went over to him for this purpose while D/Sgt Loudon spoke to Mr Fuessner and searched the car without result.
6. D/C Bullimore says that Mr Rottman asked if he could go into the house to collect a few belongings. This was permitted, and the officer accompanied him in. Mr Rottman gave him a passport with his name and photograph on it. The officer said that he noticed a number of computers in an upstairs room, and he told D/Sgt Loudon about them.
7. D/Sgt Loudon says that the atmosphere was relaxed. Because Mr Rottman was under arrest, he was accompanied at all times by a police officer, and neither he nor any member of his family raised any objection to the police presence in his house. He was in and out of the house on numerous occasions while the police were there. He was talkative and polite. D/Sgt Loudon says that he was mindful of the presence of Mr Rottman's pregnant wife and children, and he was content that a controlled, relaxed situation should continue.
8. About ten minutes after Mr Rottman was arrested, D/Sgt Loudon noticed a man and a woman walk up the drive. They turned out to be two German police officers from the German Fugitive Unit. D/Sgt Loudon had spoken to them over the previous day or so, and he was aware they were in the country, but he had never met them and did not expect them to be there. He told them that Mr Rottman had been arrested, and that there were a number of computers in the house. Although the two officers introduced themselves to Mr Rottman, D/Sgt Loudon told them not to speak to him about the case. He also told Mr Rottman that the two German police officers would not be speaking to him about the case.
9. He then became aware that one of them, Mr Eckel, was using his mobile telephone to speak to the public prosecutor in Germany. When the call ended, Mr Eckel asked him on behalf of the public prosecutor to search the premises. He said that they suspected that the computers, disks and financial documents might hold evidence of the offences and/or evidence which would trace the proceeds of the crime. He added that he believed that the computers were linked to other computers in the internet, and that while they remained linked there was a possibility that another distant user might wipe any relevant information off Mr Rottman's computers once he was aware of Mr Rottman's arrest.

10. D/Sgt Loudon says that he then decided to exercise his power of search under section 18(5) of the Police and Criminal Evidence Act 1984 ("PACE"). He considered three factors in making this decision. First, the accepted practice of police officers on the Extradition Unit was that they were able to use common law powers to search premises following the arrest of a person on an extradition warrant, although it usually happens that that person is arrested within the physical structure of the premises in question. Secondly, Mr Rottman had been arrested within the boundary of his property, a few yards from his front door, and D/Sgt Loudon believed that he was therefore arrested on the premises. Finally, he had also read from various sources that PACE was available in extradition matters for the purpose of searching.
11. Having decided to make a search, D/Sgt Loudon entered the house at about 1.40pm. He found Mr Rottman in the kitchen, and told him of his intention to search the premises. He completed the entries in a Premises Searched Book, and gave Mr Rottman the page headed "Information to Occupier" while they were still in the kitchen. He also telephoned a detective inspector and told him he was conducting a search. In a brief statement D/I White says that he recalls D/Sgt Loudon contacting him in circumstances like these in September 2000, and that he made a note of his call at the time. He does not now know where that note is.
12. Mr Rottman showed D/Sgt Loudon the contents of his safe. It contained documents in German, but after showing them to one of the German officers, D/Sgt Loudon decided they were not relevant, and they were not seized. Although the German officers were in the house at various times, they were not involved with the physical search. Mr Rottman did not complain about their presence. One of them was given a glass of water at some stage and was allowed to use the lavatory. The atmosphere remained calm. Mr Rottman had a meal prepared for him during the search.
13. D/Sgt Loudon went upstairs during the course of the search with Mr Rottman and DC Bullimore. Mr Rottman disconnected the computers at his request, and he told him they would be seized. Mr Rottman also showed him the software in the room. In due course the computers were carried out to a vehicle. The property seized in the course of the search was all listed. It was then taken to New Scotland Yard where it remains sealed and unexamined. D/Sgt Loudon says that at no time did Mr Rottman either claim legal professional privilege for any items, nor make any suggestion that might be interpreted as a claim for such privilege.
14. Mr Rottman gave a rather different version of events. He said that two cars came racing into his driveway as soon as they reached it, and two police officers got out and raced towards him, suggesting that they thought that the matter was of the utmost urgency. The two German police officers then joined them, and the group of four officers then came into his house. His account continues as follows:

"They did not, at any point, ask for my permission to enter my property and I at no time gave them permission to do so. I recall something being said at the commencement of the search by the officer who identified himself as Detective Sergeant Loudon to the effect that his warrant covered the search to obtain information pertinent to the whereabouts of alleged fraudulent monies. No documentation was given to me setting out the grounds for the search and seizure of my property which then followed.
The German police officers did not personally examine items of my property except in the case of 3 gift-wrapped packages, which had been brought by my computer supplier as Christmas presents for my 3 children. The German female police officer personally unwrapped these items and she then pointed out to the English police officers, other items of my property in which she was interested, and which she wished to have removed from my house.
The German female police officer went upstairs into my office and opened all my cupboards in order to look at the contents and to point them out to the English police officers. Although I was co-operating with the search, this particular police officer was unnecessarily overbearing and aggressive in her attitude towards me. I later saw her when I first appeared at Bow Street Magistrates' Court on September 25th 2000, as she and her male colleague had attended that hearing. Throughout the course of the search and seizure of my home I would describe the German police officers as virtually breathing down the necks of the English police officers.
All parts of the house containing personal belongings and the contents of our safe were searched, together with my wife's handbag.
No inventory was made of the items taken by the police. I gave one of the officers a black marker pen and numbers were written onto the seized items except for the compact discs and diskettes.
I was allowed to shut down and dismantle my computers in the presence of the English police officers, and I was then permitted to pack a bag, which I brought with me to Charing Cross Police Station, where I remained in police custody until Monday September 25th."

In the event we did not find it necessary to reconcile the differences between the rival versions of the events.
15. Because it is prima facie wrongful to search another person's house and to take away his property without his permission, it is best to start the analysis of the legal rules applicable to this case by setting out first the various reasons which Mr Perry originally put forward to justify the officers' actions. His argument was founded on four main strands:
i) The arresting officers lawfully entered Mr Rottman's premises for the purpose of executing a warrant of arrest issued in connection with or arising out of criminal proceedings (see PACE s 17(1)(a));
ii) As the officers were lawfully on the premises, they had power to seize anything there if they had reasonable grounds for believing that it was evidence in relation to the offence which they were investigating or any other offence, and that it was necessary to seize it in order to prevent the evidence being concealed, lost, altered or destroyed (see PACE s 19(3));
iii) Alternatively, the officers had a common law entitlement to seize the property (see Ghani v Jones [1970] 1 QB 693, and R v Governor of Pentonville Prison ex p Osman [1990] 1 WLR 277);
iv) Alternatively, their search was lawful because the warrant issued for Mr Rottman's arrest identified the relevant extradition crime as conspiracy to defraud; this is an arrestable offence for the purposes of PACE, and a constable may enter and search any premises occupied or controlled by a person who is under arrest for an arrestable offence (see PACE s 18).
16. During the course of his submissions Mr Perry appeared to retreat from any very confident reliance on PACE, and the argument between counsel largely turned on the question whether the police officers had any powers at common law to act as they did. I can therefore deal quite briefly with the arguments based on PACE.
17. Section 17(1) of PACE gives a constable power to enter and search premises for the purpose of executing a warrant of arrest issued in or connection with or arising out of criminal proceedings. Since Mr Rottman was arrested outside his front door, this provision gave the police no authority to go any further, because their statutory purpose had been perfected soon after they entered his driveway (see McLorie v Oxford [1982] QB 1290 for the limitations on the former common law powers of entry into a dwellinghouse without a warrant once an arrest was completed). Section 17(2) expressly limits the powers of entry and search conferred by this section, and section 17(4) prescribes that the power of search conferred by the 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". All common law rules empowering a constable to enter premises without a warrant were abolished by section 17(5).
18. Any statutory powers under PACE to search Mr Rottman's premises would have to be found in sections 18 or 19 (Mr Perry did not attempt to place reliance on section 32). The scheme of these sections appears to make a clear distinction between "entry and search" on the one hand and "seizure" on the other. Although Mr Perry argued that since the police were already lawfully on Mr Rottman's premises, albeit only on the driveway, they could derive their power to enter his house, search it and take away material evidence from section 19 alone, I do not accept this submission. It appears to me that it involves reading far too much into the definition of "premises" in section 23 and ignoring the clear distinction between the subject-matter of section 18 and the subject-matter of section 19.
19. Section 18 is clearly concerned only with domestic offences. Section 18(1) provides that:

"(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."

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

"(1) The powers conferred by subsections (2), (3) and (4) below are exercisable by a constable who is lawfully on any premises.
(2) The constable may seize anything which is on the premises if he has reasonable grounds for believing -
(a) That it has been obtained in consequence of the commission of an offence; and
(b) That it is necessary to seize it in order to prevent it being concealed, lost, damaged, altered or destroyed.
(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.
(4) The constable may require any information which is contained in a computer and is accessible from the premises to be produced in a form in which it can be taken away and in which it is visible and legible if he has reasonable grounds for believing that ...
(5) The powers conferred by this section are in addition to any power otherwise conferred.
(6) No power of seizure conferred on a constable under any enactment (including an enactment contained in an Act passed after this Act) is to be taken to authorise the seizure of an item which the constable exercising the power has reasonable grounds for believing to be subject to legal privilege."

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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