Judicial Precedent Essay

The material facts of the bailiwickThe Metropolitan Police received a request from the German authorities for the issuance of a antecedent for Mr.Rottmans extradition, a German business man, who was alleged of committing an offence of conspiracy to defraud in his indigenous country. Bow street magistrates court issued a tentative accommodate apologize beneath s8(1)(b) of the Extradition Act 1989. Mr. Rottman was arrested in the driveway of the house, a few yard from the front door. Soon after his arrest, two German jurisprudences obtained the authorization from the senior patrol officer present to search the house and seized a number of articles which they took to the New Scotland Yard. Mr. Rottman then bought judicial review proceedings against the legality of the last to enter his home and to search for and seize items. Divisional court found in favour of Mr. Rottman, held that the entryand search the house carried out by the German practice of laws had been un lawful an d his rights under Art 8 of the European Convention on Human Right(ECHR) had been violated. The divisional court spurned the decision in R v Governor of pentonville Prison ex p Osman 1990that the bureau of search and seizure after a lawful arrest applied to extradition cases as to a domesticated crime. The old common law consistent to search and seizure had been abolished by PACE when it is given to affect. There is no power either statutory or common law to carry out a search of premises following the arrest made pursuant to the provisional warrant executed under s8(1) under the extradition act.Ratio of the caseA statute does non extinguish a common law rule unless the statute makes this clear by depict provision or by clear implication. The common law power would throw been supplemented by but not replaced by the statutory powers in PACE. Nor was it in breach of article 8 of the ECHR as long as the search and seizure was proportionate to the legitimate purpose of preventin g crime.The House of Lord challenged the issue on general public authority which was certified by Divisional Court that At common law, does a police officer executing a warrant of arrest issued a pursuant to section 8 of the Extradition Act 1989 have power to search for and seize whatsoever goods or documents which he jolly believes to be material enjoin in relation to the extradition crime in respect of which the warrant was issued?Two argument were raised per curiam 1) whether before the enactment of PACE police officer would have had a common law power to search the suspects premises when arresting him for an extradition crime under warrant and 2) whether any such common law power of search had been extinguished by PACE thereafter.It was a well established common law principle that police officer carrying out arrest in or on a persons premises could search and seize any articles which he reasonably believed to be material evidence against him for a purpose of preserving that e vidence until trial. It was further agreed that the powers to search and seize also extended to article presented in the inhabit where the suspect was arrested. The lords upheld Lord Dennings judgment in Ghani v Jones that the common law power extended to entire premises upon which the alleged was arrested. In back up with a wider search power,Lloyd LJ gave the judgment in R v Governor of Pentonville Prison, ex p Osman1990, considered that the power of search and seizure after a lawful arrest applied to extradition cases as well as to a domestic offence.Summary of Lord Huttons argumentLord Hutton gave the leading judgment. He rejected the argument advanced by Rottman that the power had been too widely stated by Lord Denning. He subsequently rejected the submission the existence of statutory power in s7 of 1990 Act implied that there was no common law power in extradition cases. He upheld that the common law power of search and seizure was not extinguished by PACE, supplemented tha t it is well-established principle that a rule of the common law is not extinguished by a statute makes this clear by express provision or by clear implication. A power to seize material evidence is necessary when a suspect was arrested, it was not feed for a search warrant.In terms of the alignment of Article of the ECHR, Lord Huttons opinion was that the common law power of search and seizure did not violate the appellants right under Article 8 of the European Convention on Human Rights. It was in accordance with the law which was all the way stated in Osman that the power had the legitimate aim in a democratic society of preventing crime and was necessary to prevent the disappearance of material evidence after the arrest of suspect. The power was proportionate to that aim because it was subject to the safeguard that it could only be exercised after a warrant of arrest had been issued by a magistrate.Summary of Lord Rodgers reasoningHe was supportive of Lord Huttons opinion that PACE does not extinguish the common law power of search of police officers executing an arrest warrant. Parliament left them deliberately with those common law powers and left arrested persons with the corresponding law safeguards. When the police officers in the case arrested the respondent, they were entitled to exercisethose common law powers and equally, the respondent enjoyed the safeguards afforded by the common law. The research of his house was accordingly lawful.Summary of Lord Nicholls and Lord Hoffmans reasoningThey both gave little reasoning to the ruling. They largely agreed with the judgment from Lord Hutton that a where a police officer entered a house with or without an arrest warrant and arrested a suspect he enjoyed a common law power to search the house and seize any goods that he reasonably believed to be a material evidence.Summary of Lord Hopes reasoningHe dissented the majority of ruling by Lord Hutton and others that the powers which are available to police officer at common law where he is in possession of an arrest warrant. He claimed that the statutory powers under PACE were not available that in the absence of the common law power, it is unlawful that the entry and search of the house violate the respondents right under the Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.He also disagreed that the extradition cases could be equated with domestic ones. He expressed that any power which the police might have did not apply to arrests on a provisional warrant for an extradition offence. Extradition required an order of the Home Secretary issued in response to a request by the foreign state. And there was no common law paper of arrest for the purposes of extradition. Also the Extradition Act granted powers of search and seizure in very moderate cases.He claimed that the extradition always requires a request that there is no common law power entitling an officer, for the purposes of extra dition, to make an arrest without a warrant.By the majority of 41, excepts Lord Hope dissenting, the appeal was allowed. The House held that the commissioner of police who had arrested a person in or on his premises, executing a warrant of arrest issued pursuant to s8 of the Extradition Act 1989 had the common law power to search for and seizeany articles which he reasonably believes to be material evidence in relation to the extradition crime.On the whole, this is a strong case as the majority of the judges held the appeal that the power of search to the police is more stringent in extradition cases than domestic cases. This in turn make a clear pictures to the commissioner of police in the region that they knows how and when to apply the rule without any violation to the ECHR.