Judicial Precedent Essay

The poppycock facts of the caseThe Metropolitan constabulary received a request from the German authorities for the issuance of a example for Mr.Rottmans extradition, a German business man, who was alleged of committing an umbrage of conspiracy to defraud in his indigenous country. Bow street magistrates chat up issued a provisional keep justify below s8(1)(b) of the Extradition numeral 1989. Mr. Rottman was tallyed in the driveway of the house, a few yard from the front door. Soon later his check off, two German polices obtained the permission from the senior police officer get to essay the house and allowd a number of articles which they took to the New Scotland Yard. Mr. Rottman then bought juridical review proceedings against the legality of the decision to enter his home and to take care for and borrow items. Divisional court found in favour of Mr. Rottman, held that the introand seem the house carried out by the German polices had been unrule-governed and hi s rights beneath Art 8 of the European Convention on Human Right(ECHR) had been snap offd. The divisional court rejected the decision in R v regulator of pentonville Prison ex p Osman 1990that the violence of inquisition and seizure by and by a rightful suffer applied to extradition cases as to a domestic help help crime. The old reciprocal lawfulness pursuant to hunt club and seizure had been abolished by gait when it is given to affect. There is no military unit either statutory or leafy vegetable law to carry out a search of premises following the arrest made pursuant to the provisional warrant executed below s8(1) under the extradition act.Ratio of the caseA regulation does non overturn a parking area law rule unless the statute makes this absolve by express provision or by make up implication. The common law male monarch would have been supplemented by but not replaced by the statutory posts in PACE. Nor was it in breach of article 8 of the ECHR as long as the search and seizure was proportionate to the rightful(a) purpose of preventing crime.The House of schoolmaster challenged the issue on general universe 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 each goods or documents which he reasonably believes to be material test in relation to the extradition crime in discover 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 in that respectafter.It was a well established common law ruler that police officer carrying out arrest in or on a psyches premises could search and seize any arti cles which he reasonably believed to be material rise against him for a purpose of preserving that evidence until trial. It was further agreed that the powers to search and seize also extended to article presented in theroom 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 support 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 argumentationLord 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 entree the existence of statutory power in s7 of 1990 Act implied that there was no common law power in extradition cases. He up held that the common law power of search and seizure was not extinguished by PACE, supplemented that 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 apply for a search warrant.In terms of the alignment of Article of the ECHR, Lord Huttons whimsy 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 intelligibly 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 field of operations to the safeguard that it could only be exercised after a warrant of arres t 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 tally 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 thence lawful.Summary of Lord Nicholls and Lord Hoffmans reasoningThey both gave poor 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 diss ented the majority of ruling by Lord Hutton and others that the powers which are visible(prenominal) 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 door and search of the house violate the respondents right under the Article 8 of the European Convention for the Protection of Human Rights and radical 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 escritoire 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 limited cases.He claimed that the extraditi on always requires a request that there is no common law power entitling an officer, for the purposes of extradition, 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 slopped 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 ravishment to the ECHR.