Summary of Lord Nicholls of Birkenheads Reasoning - Essay Example

A Case on R v Commissioner of Police of the Metropolis (2002) Lecturer Political Science Regina (Rottman) v Commissioner of Police of the Metropolis (2002) UKHL 20 [2002] 2 A.C. 692 House of Lords 16 May 2002 Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Hope of Craighead, Lord Hutton and Lord Rodger of Earlsferry. Material facts: The defendant Rottman was a suspect of a fraud committed in Germany. Pursuant to the application of his extradition from England, a provisional warrant for his arrest was issued pursuant to the Extradition Act 1989, section 8. Surveillance operation was launched and during the operation, the defendant was seen driving into the driveway of a home in High Wycombe. He was in the company of his family. The English local police arrived and arrested him a short distance from the front door. Shortly after, two German police officers arrived and one of them asked the English officers to proceed and carry out a search of the property. They suspected that the computers on the premises might contain evidence of the fraudulent activities of the defendant. A Detective Sergeant made the decision to exercise his authority under PACE, s. 18(5). The police seized property including computers on the premises. The defendant challenged the seizure and admission of the evidence that was not within the scope of the 1984 Act. Procedural history: the case had initially been heard in the Queens Bench Divisional Court where Lord Justice Brooke found it impossible to interpret part II of the 1984 Act to accommodate the power of the common law. He made reference to the case R v Governor of Pentonville Prison, Ex p. Osman [1990] 1 WLR 277 where Lord Justice Lloyd had found that under section 6 of the Fugitive Offenders Act 1967 a warrant of arrest in domestic proceedings was not different to a provisional warrant. In the House of Lords, Lord Hutton acknowledged that the Divisional Court had determined that power under the common law to search and seize evidence following an arrest had been eliminated by the Police and Criminal Evidence Act of 1984. He said that the relevant provisions in the Act did not extend to extradition offenses. Ratio of the Case: The ration of the defendant is ‘the 1984 Act did not completely replace the common law authority of the police in collecting evidence’. Since the defendant was arrested outside his front door, the police had no power under section 17 to proceed to enter and search the premises. Section 18 under which the police officer acted did not cover extradition crimes but were limited to domestic offenses while the common law powers remained for international offences. Section 19 did not give the officers the authority to collect and seize evidence from the premises while they were not investigating a crime committed within their jurisdiction. Therefore the search and collection of items from the premises was not lawful under the Police and Criminal Evidence Act 1984 (PACE). Summary of Lord Nicholls of Birkenhead’s reasoning: His Lordship while agreeing with reasons given by Lord Hutton and Lord Rodger of Earlsferry on the matter said he would answer the certified question in a similar manner to Lord Hutton’s proposal and he allowed the appeal accordingly. The 1984 Act did not eliminate the power of the common law to search the premises of a suspect and seize items believed to be material evidence during an arrest as provided in section 8(1)(b) of the 1989 Act. Under the Human Rights Convention Article 8, the power of the common law of search and seizure after a suspect had been arrested was not a violation of his rights. As stated in Osman, this was in accordance with the law. It was a legitimate aim to prevent crime from going unpunished in a democratic society. It was necessary to ensure that no material evidence gets lost after a suspect is arrested. His judgment was in favour of the majority. Summary of Lord Hoffmann’s reasoning: Similarly, Lord Hoffmann agreed with the reasons given by Lord Hutton and Lord Rodger of Earlsferry on the matter. He said he would answer the certified question in the manner similar to Lord Hutton’s proposal and he allowed the appeal accordingly. He gave unanimous views of the House in the case R v Governor of Brixton Prison, Ex p Levin [1997] AC 741, 746F - 747A, that the execution of the warrant of arrest in relation with the extradition proceedings was similar to the execution of a warrant of arrest related to in terms of section 17 (1)(a)(i) of the PACE Act 1984.” His was a majority judgment. Summary of Lord Hope of Craighead’s reasoning: Lord Craighead answered the certified question in the negative and dismissed the appeal. Similar to Lord Hutton and Lord Rodger of Earlsferry, he agreed that the powers given to the police under the sections 18 and 199 of the Police and Criminal Evidence Act 1984 (PACE) did not apply to persons arrested under the provisional warrant for an extradition offence. However, according to him the power to search the premises in which the person was arrested in under section 32 of the Act did not apply as the term ‘offence’ in subsection 2 (b) and was confined to domestic offenses. Further, he said that the section 17(5) of PACE was not related to the power of the police to search the premises in which a person had been arrested. His was a dissenting judgement. Summary of Lord Hope of Hutton’s reasoning: His Lordship said that ‘a police officer who arrests a respondent in or on his premises having been issued a warrant of arrest by a magistrate under Extradition Act 1989, section 8 has the authority to search those premises in which the suspect was arrested for material items which he reasonably considers to be evidence related to the expatriation crime based on which the warrant was issued’. He was for the opinion that the appeal be approved and the Divisional Courts order be set aside. Summary of Lord Rodger of Earlsferry’s reasoning: His Lordship said that a police officer had the power to search the premises in which the person arrested was found in and seize goods that he believes are material evidence to the crime in respect of which the warrant of arrest was issued. This according to him was under the section 17(1)(a)(i) of the PACE Act. He said he would allow the appeal the case. Overall Summary of the majority decision: the majority decision was for the appeal to be allowed. The submission of the respondent that under article 8 the common law power of search and seizure after his arrest was a violation of his rights. The question that the court sought to answer was whether the power provided under section 18 of the Act constitutes an extension to police powers while undertaking a warrant of arrest or whether the Act extinguishes the common law. Before the passage of the 1984 Act, it was settled law that the police searching premises under a warrant could seize items found on the suspect or in his premises that they reasonably considered to be material evidence of the crime for which the suspect was arrested. Section 18 with respect to seizure only restated common law in a clearer way. Under section 18, the entry into the premises of the person being arrested can be effected without the consent of the occupier against his will. Lord Denning, Master of the Rolls, in the case Ghani v Jones [1969] 3 All ER 1700, and Lord Justice Lloyd, in the case R v Governor of Pentonville Prison, Ex p. Osman [1990] 1 WLR 277, 311 correctly stated the power of the common law. It was not practical to differentiate between a house and its grounds when discussing the power of search following an arrest of a suspect on his premises. This statement was used in the rejection of the submission by the Counsel for Rottman that even if common law permitted the authority to search and seize evidence on the respondent’s property, it should have been limited to inland offences only. In the view of the court, the effective fighting of international crime was just as important as effectively fighting domestic crime. As such, in the case that material evidence from the house of the suspect was not apprehended during his arrest there was a risk of the evidence disappearing after the arrest regardless of the case being domestic or an extradition. Four of the five judges reached their decision for the same reasons. They all agreed that the power of an officer arresting a suspect to search the person and the premises he was arrested in for evidence related to the offense he is charged with is important. This is because in a democratic society this power has the legitimate aim of preventing crime and preventing the loss of important material evidence after the arrest of a suspect. In response to the dissenting of Lord Hope of Craighead on certain points, Lord Rodger of Earlferry had a few observations too. According to the Crown, PACE gave officers executing a warrant of arrest the power to get into and search the suspect’s premises with the aim of carrying out the warrant of arrest. It also gave the police officers powers under section 18 and 19 to enter the premises after arresting the respondent on the driveway and search for and seize items that they had reasonable ground for believing were evidence of the extradition offense. Lord Rodger of Earlferry did not find these submissions correct since their approach lacked sufficient consideration for the structure of the Act. In his opinion, ‘it places unduly narrow construction on section 32.’ Overall summary of dissenting judgments: Lord Hope of Craighead failed to agree with his fellow lords on their analysis of the powers available to a police officer at common law conducting an arrest while in possession of an arrest warrant. An arrest warrant issued by a magistrate under the Extradition Act 1989 section 8(1) is provided only when there is sufficient evidence satisfying the requirement to constitute an extradition crime: section 8(3). The arrest, under section 9(1) is to bring the accused person before a court of committal as soon as is practical to answer for the crime committed within his jurisdiction. If the suspect had been accused of the offense of stealing or receiving stolen property from a Commonwealth country then section 8(6) the magistrate would have had the power to issue a warrant to search the premises after the arrest. Since the offense had allegedly been committed in Germany, the magistrate did not have the authority. The police officer who conducted the arrest had accomplished the requirement of the warrant when the suspect was arrested outside the premises. The decision to search and collect evidence from the house of the accused was not taken for the purpose of effecting the arrest. It was only pursued when two German police officers arrived and asked the local police to do so since they believed that there were computers, hard discs and financial documents in the premises that might have held evidence of the offences which the respondent was accused of having committed. The officer responsible for the search was not issued with a warrant to do so and it would have been denied to him if he had requested for one under section 8(6) of the 1989 Act. This is because the statutory powers under PACE were not available in the case. Due to the absence of common law power in the case, the entry and search of the premises of the respondent by the police was unlawful. This dissenting judgement is important since according to Lord Hope of Craighead, the rights of the respondent were violated as provided under the European Convention for the Protection of Human Rights and Fundamental Freedoms article 8. Overall view: The case can be considered a strong case since majority of the lords agree on the judgement and the reasons for their judgements in the case are similar. Hence the precedent created is strong. References Ghani v Jones [1969] 3 All ER 1700. House of Lords. 2002. Judgments - Regina v Commissioner of Police for the Metropolis, Ex P Rottman. Session 2001-02. Online: retrieved from http://www.publications.parliament.uk/pa/ld200102/ldjudgmt/jd020516/rott-1.htm Regina (Rottman) v Commissioner of Police of the Metropolis (2002) UKHL 20 [2002] 2 A.C. 692. R v Governor of Brixton Prison, Ex p Levin [1997] AC 741, 746F - 747A. R v Governor of Pentonville Prison, Ex p. Osman [1990] 1 WLR 277. Read More