Student ID - 130386247

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

[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
Roger of Earlsferry.

Parties
The case of Regina (Rottman) v Commissioner of the Police of the Metropolis [2002] 2 A.C. 692 with
Michael Rottman as the respondent, and the Commissioner of Police of the Metropolis as the
claimant.
Procedural History
The Queens Bench Divisional Courts Decision granted a decision in favor of Rottman, a decision
which was reversed on review at the Supreme Court, a decision which is contested again here in the
given case.
Facts and Issues
There was a warrant issued against Mr.Rottman , in a German Court on 27
th
December 1996,based
on alleged fraud in Germany. The Metropolitan Police received a request from German Authorities
for Rottmans extradition on 13
th
September 2000 pursuant to this warrant. Rottman, was then
arrested at the driveway to his home, on the basis of the same warrant, a few yards from his door.
Following this two German officers arrived at the scene and requested that the English officers
carry out a search of the premises on the suspicion that computers on the premises would contain
evidence of the alleged fraud.
A Detective Sergeant, based on this request, allowed a search of the premises by an exercise of his
power based on PACE Section 18(5). The search yielded the seizure of property including the
computers.
Ratio of the Case
The case dealt with the common law power of a police officer executing a warrant of arrest
pursuant to section 8 of the Extradition Act 1989, holding that search and seizure of any goods and
documents reasonably believed to be material evidence to the extradition crime, was lawful as such
was within the ambit of the warrant issued.




Judicial Reasoning
The legal remedy sought in the first Rottman case was a declaration that the search and seizure of
items from the respondents house on 23
rd
September was unlawful and as such in violation of the
respondents rights pursuant to Article 8 of the Convention for the Protection of Human Rights and
Fundamental Freedoms and a requirement for all items to be returned.

The case on review then, dealt with the common law powers of the police to seize material evidence
in relation to an extradition crime in respect of the warrant issues.

The given case dealt with the majority view of Lords Hutton, Rodger, Nicholls and Hoffmann with
Lord Hope dissenting.
Lord Hutton
Lord Hutton in his opinion has addressed the court on the presumption that the seized items were
material evidence in relation to the extradition crime for which the warrant was issued. His
Lordship begins by identifying Brooke LJs judgment wherein it was stated that Police and Criminal
Evidence Act 1984 (hereafter referred to as PACE) no longer extended to international offences. Such
a view was rejected on the basis that the effective combating of domestic crime was as important as
that of international crime as crime was no longer largely local, as opined by Lord Griffiths in
Liangsiriprasert (Somchai) v Government of the United States of America (1991).
Lord Hutton then points to the common law powers before PACE and how as seen in Dillion v
OBrien and Davis (1887), it was held by Palled CB, that such was not only an entitlement but a
requirement as he failed to see how else to preserve evidence outside, this view was furthered in
Chic Fashions (West Wales) Ltd v Jones (1968) with Salmon LJ clarifying the issues by stating that
where a mans person is no longer sacrosanct such courtesy failed to extend to the goods in
question, and soon after in Ghani v Jones (1970) where Lord Denning, considered obiter that such
seizure would be valid even without warrant. His Lordship then illustrates the point of validity
despite it being an extradition case, through Lloyd LJs judgment in Ex p Osman (1990), and then
coming back to Dillion noting the robust common sense of Palles reasoning to hold that to not
allow search and seizure would be contrary to common sense.
His Lordship further rebuts the submission on part of Rottman that the search be invalid due to his
arrest outside of the house searched, stating clearly that drawing such a distinction would be
artificial.
Having state the above Lord Hutton then illustrates clearly that while such powers of search and
seizure did not stem from the Section 18 of PACE, but rather, from the common law powers, which
Lloyd LJ in Osman claimed to have not been saved by PACE. Hutton then identifies the question
being not whether PACE saved such power but whether Sections 18 and 19 extinguished them,
finding that such was not the case and as such that officers were entitled to exercise such common
law powers after the arrest.
Lord Hutton goes on to say he would duly allow such an appeal.
Lord Nicholls of Birkenhead and Lord Hoffman furthered Lord Huttons opinion on the matter.

Lord Hope
As the sole dissenting judgment, Hopes reasoning stands on specific points of noted difference.
Having agreed with Lord Hutton and Lord Roger of Earlsferry as to the powers given by Sections 18
and 19 of PACE, and Lord Rodger in regards to the application of the term offense in subsection
(2)(b), being limited to domestic offences; Lord Hope then differs on the sole point of a police
officers powers available at common law where in possession of an arrest warrant, extending to a
search of the premises and well as a search of the person.
Hope negates the argument of domestic offences, with a clear reference to Jeffrey v Black (1978) a
pre-PACE case, which Hope held to hinder the clarity of this point, based on it holding the test of
evidence to be relevance over how it was obtained. His Lordship then turns his attention to two of
the cases Lord Hutton uses, Chic Fashions (West Wales) Ltd v Jones (1968) and Dillion v OBrien and
Davis (1887), and highlights the emphasis on the search warrant in the former and the entitlement
to detain property found on his person as per Palles CB in the latter, noting that herein the
extension to a search of the premises was not allocated.
Lord Hope derived support from his reasoning from the views expressed by Professor David
Feldman in The Law Relating to Entry, Search and Seizure (1986). It is from here that his Lordship
notes the lack of a clear authority for the existence of power to search beyond the arrested person
himself, which he again supports with the Report by the Royal Commission on Criminal Procedure
The Investigation and Prosecution of Criminal Offences in England and Wales: The Law and Procedure
(January 1981).
Lord Hope then draws attention to Lord Rodgers comparison to the Scottish System, wherein it is
customary to grant a warrant to arrest and search simultaneously. Hope indicates that the key
difference is that while it is custom in the Scottish System the greater aspect of note is that the
warrants are expressly stated. In fact, due to the usual granting of warrant in such circumstances,
even the Scottish Practice has not had the opportunity to fully develop in this regard, a point
alluded to by Lord Hunters acknowledgement of in certain cases in his dissenting judgment of
Adair v MGarry (1933).
Lord Hope therefore reasoned that, but for, the warrant being issued under section 8(1) of the 1989
Act, the position would have been palpably clearer, having said that, he goes on to note the warrant
provided was a warrant of arrest not one of search. The purpose of the warrant in Hopes argument
extended only to the effecting of the arrest. The later request of the German Police Officers to the
Metropolitan Police to search the house, where the Metropolitan Police in fact had no powers as the
statutory powers under PACE were unavailable. His Lordship further notes that no argument of
urgency seemed to apply in the given instance, nor one for impracticability of applying for search.
Hope therefore opines that in the absence of the relevant common law power, the search and entry
of the house concerned was unlawful, and subsequently did indeed violate the respondents rights
under Article 8 of the European Convention for Human Rights.
It is worthy of note, that Lord Hopes judgment although a minority judgment, was in fact part of the
most lucidly drafted judgments in the given case, contrasting Lord Huttons judgment of common
sense with a purview of more logical standing.

Lord Rodger of Earlsferry
Lord Rodger in his judgments opined alongside Hutton and for the most part adopted Lord Huttons
view for the greater part of the judgments. Rodger further supported views purported by Lord
Hoffmann in R v Governor of Brixton Prison Ex p Levin (1997) where it was stated that it was
common ground for the officers executing the arrest in connection with extradition proceedings
were indeed executing a warrant of criminal proceedings as per Section 17(a)(i) of PACE. Rodger
forwards Huttons views of the inapplicability of Sections 18 and 19 of PACE, and also is in
agreement that the key question is whether before the enactment of PACE police would have such
common powers of search in respect of a extradition crime under warrant, and following that
whether such power was abolished by the enactment of PACE.
Lord Rodger goes on to clearly highlight that despite the Report to which Lord Hope refers did
indeed touch upon the undefined nature of the term immediate surroundings not attempt to
abridge such a power of search and however far it may reach was in relation to that term was
made. His Lordship, finishes noting that the true question of note was whether common law today
should be regarded as conferring such powers of search as described by Denning in the course of a
warrant for arrest, and found that it should, a decision he backs up with reference to a Green Paper
on Extradition from February (1985).

The case of Rottman as it therefore stands follows clearly in the wake of Osman, where in the law
was clearly stated; furthermore it may be termed as a tool of fulfillment, by proactively preventing
the disappearance of material evidence, used proportionately for the prevention of crime in a
democratic state, by not restricting the moral foundations of criminal law to mere statutes where
common sense can, and should, by the grace of the evolutionary nature of law in partnership with
already existent case law, prevail.