Practice and Procedure


PUBLISHED December 18, 2003

The circumstances of the search and seizure of items without warrant from premises, in the context of extradition proceedings, fell outside the common law powers of search and seizure prescribed by authority.Application for judicial review of the decision of the Chief Constable of Dorset Police Force (D) on 3 March 2003 to enter, search and seize items from a flat occupied by the claimant's (H) girlfriend without a warrant. H had been suspected by the French police of conspiracy to import cannabis into France and was subject to extradition proceedings. He was arrested, some distance from the flat, two hours and ten minutes prior to the search, which was purportedly carried out under s.32 Police and Criminal Evidence Act 1984. On the instant application, H argued that: (1) in reliance on R v Commissioner of Police for the Metropolis, ex parte Rottman (2002) UKHL 20, whilst the police retained a common law power in extradition proceedings in respect of entry, search and seizure without a warrant following arrest it could only be exercised in the limited circumstances described by that authority; (2) the circumstances of the instant case were distinguishable from those in Rottman (supra) in that (a) H had been some distance from the flat at the time of his arrest; (b) there had been a lapse in time of two hours and ten minutes between the arrest and the search; and (c) there was only a tenuous link between H and the flat, which H only stayed at occasionally; (3) the search had not been lawful under the Act because H had not been in the flat "immediately before his arrest" as required under s.32(2)(b) of the Act and there were no reasonable grounds for believing that H might have presented "a danger to himself or others" as required by s.31(1) and (2) of the Act. D argued that: (1) whilst the circumstances of the instant case were different to Rottman, if the same circumstances had arisen in Rottman the court would have expressed the principle in a manner that would have covered those circumstances; and (2) the court should extend the principle to cover the circumstances of the instant case.HELD: (1) Whilst the court could see the incremental development of the common law in respect of the principle of the recovery and preservation of evidence, that principle had to be balanced against the principle that private property should not be subject to arbitrary interference, the latter supported by Art.8 of the European Convention on Human Rights. (2) The three factors put forward by H distinguished the present case by a wide margin from previous authority. It would be a substantial leap to hold that the police were entitled to search the flat because two hours and ten minutes previously they had arrested H. It was not right for the court to enlarge the common law in that way. In addition, whilst H had a clear link to the flat he did not live there. In those circumstances, there was no statutory or common law power to conduct the search and seizure and it had been unlawful.Application allowed.