R (Rottman) v Commissioner of Police of the Metropolis and Another
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BROOKE |
| Judgment Date | 24 July 2001 |
| Neutral Citation | [2001] EWHC 576 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 24 July 2001 |
| Docket Number | Case No: CO/4611/2000 |
[2001] EWHC 576 (Admin)
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
DIVISIONAL COURT
QUEENS BENCH DIVISION
Lord Justice Brooke and
Mr Justice Harrison
Case No: CO/4611/2000
Clare Montgomery QC and Julian Knowles (instructed by Christmas & Sheehan for the Claimant)
David Perry (instructed by the Solicitor for the Metropolitan Police for the First Defendant)
This is the judgment of the court.
This is an application by Michael Rottman for judicial review of decisions by officers of the Metropolitan Police to enter his home at 58 Magnolia Dene, Hazelmere, High Wycombe on 23rd September 2000 and to search for and seize items there.
Mr Rottman is a German national and a businessman. He was 57 years old at the time of the events with which these proceedings are concerned. On 27th December 1996 a warrant had been issued for his arrest by the local court at Tiergarten in Germany. Four other people are also named on the warrant, which contains an allegation that Mr Rottman and others committed offences of fraud in Germany. The events in question date back to 1990 and arise out of Mr Rottman's alleged role in the purchase and subsequent asset-stripping of an East German power supply company by a Swiss shell company with which he was associated. Mr Rottman left Germany at the end of 1995. The German authorities believe that he has access to funds stolen from the East German company.
On 13th September 2000 the Metropolitan Police received a request from the German authorities, via Interpol, for Mr Rottman's extradition to Germany. At that time it was known that he was somewhere in the South of England (or the Channel Islands) but his precise whereabouts were not known. On 22nd September 2000 a provisional warrant for his arrest was issued by the Bow Street Magistrates' Court under section 8(1)(b) of the Extradition Act 1989. The warrant showed that he was accused of conspiracy to defraud, which is an extradition crime. The information placed before the court would have justified the issue of a warrant for the arrest of a person accused of such an offence in the United Kingdom.
Following a surveillance operation, on Saturday 23rd September 2000 Mr Rottman and his wife and children were seen meeting a man called Fuessner in Henley-on-Thames. They were then all followed to 58 Magnolia Dene, Hazelmere, High Wycombe. This is a large detached property set in its own grounds. Shortly after 1pm the car carrying Mr Rottman and his family and Mr Fuessner entered the driveway of the property. Mr Rottman was arrested pursuant to the warrant a few yards from the front door of the house. Three police officers were present at the arrest, and we have a statement from each of them.
The description in paragraphs 5 to 13 of this judgment of the events which followed is taken from evidence filed on behalf of the defendants. Detective Sergeant Loudon was in charge. He decided that Mr Rottman should be arrested as soon as possible after arriving at what appeared to be his home address. The other two officers went over to him for this purpose while D/Sgt Loudon spoke to Mr Fuessner and searched the car without result.
D/C Bullimore says that Mr Rottman asked if he could go into the house to collect a few belongings. This was permitted, and the officer accompanied him in. Mr Rottman gave him a passport with his name and photograph on it. The officer said that he noticed a number of computers in an upstairs room, and he told D/Sgt Loudon about them.
D/Sgt Loudon says that the atmosphere was relaxed. Because Mr Rottman was under arrest, he was accompanied at all times by a police officer, and neither he nor any member of his family raised any objection to the police presence in his house. He was in and out of the house on numerous occasions while the police were there. He was talkative and polite. D/Sgt Loudon says that he was mindful of the presence of Mr Rottman's pregnant wife and children, and he was content that a controlled, relaxed situation should continue.
About ten minutes after Mr Rottman was arrested, D/Sgt Loudon noticed a man and a woman walk up the drive. They turned out to be two German police officers from the German Fugitive Unit. D/Sgt Loudon had spoken to them over the previous day or so, and he was aware they were in the country, but he had never met them and did not expect them to be there. He told them that Mr Rottman had been arrested, and that there were a number of computers in the house. Although the two officers introduced themselves to Mr Rottman, D/Sgt Loudon told them not to speak to him about the case. He also told Mr Rottman that the two German police officers would not be speaking to him about the case.
He then became aware that one of them, Mr Eckel, was using his mobile telephone to speak to the public prosecutor in Germany. When the call ended, Mr Eckel asked him on behalf of the public prosecutor to search the premises. He said that they suspected that the computers, disks and financial documents might hold evidence of the offences and/or evidence which would trace the proceeds of the crime. He added that he believed that the computers were linked to other computers in the internet, and that while they remained linked there was a possibility that another distant user might wipe any relevant information off Mr Rottman's computers once he was aware of Mr Rottman's arrest.
D/Sgt Loudon says that he then decided to exercise his power of search under section 18(5) of the Police and Criminal Evidence Act 1984 ("PACE"). He considered three factors in making this decision. First, the accepted practice of police officers on the Extradition Unit was that they were able to use common law powers to search premises following the arrest of a person on an extradition warrant, although it usually happens that that person is arrested within the physical structure of the premises in question. Secondly, Mr Rottman had been arrested within the boundary of his property, a few yards from his front door, and D/Sgt Loudon believed that he was therefore arrested on the premises. Finally, he had also read from various sources that PACE was available in extradition matters for the purpose of searching.
Having decided to make a search, D/Sgt Loudon entered the house at about 1.40pm. He found Mr Rottman in the kitchen, and told him of his intention to search the premises. He completed the entries in a Premises Searched Book, and gave Mr Rottman the page headed "Information to Occupier" while they were still in the kitchen. He also telephoned a detective inspector and told him he was conducting a search. In a brief statement D/I White says that he recalls D/Sgt Loudon contacting him in circumstances like these in September 2000, and that he made a note of his call at the time. He does not now know where that note is.
Mr Rottman showed D/Sgt Loudon the contents of his safe. It contained documents in German, but after showing them to one of the German officers, D/Sgt Loudon decided they were not relevant, and they were not seized. Although the German officers were in the house at various times, they were not involved with the physical search. Mr Rottman did not complain about their presence. One of them was given a glass of water at some stage and was allowed to use the lavatory. The atmosphere remained calm. Mr Rottman had a meal prepared for him during the search.
D/Sgt Loudon went upstairs during the course of the search with Mr Rottman and DC Bullimore. Mr Rottman disconnected the computers at his request, and he told him they would be seized. Mr Rottman also showed him the software in the room. In due course the computers were carried out to a vehicle. The property seized in the course of the search was all listed. It was then taken to New Scotland Yard where it remains sealed and unexamined. D/Sgt Loudon says that at no time did Mr Rottman either claim legal professional privilege for any items, nor make any suggestion that might be interpreted as a claim for such privilege.
Mr Rottman gave a rather different version of events. He said that two cars came racing into his driveway as soon as they reached it, and two police officers got out and raced towards him, suggesting that they thought that the matter was of the utmost urgency. The two German police officers then joined them, and the group of four officers then came into his house. His account continues as follows:
"They did not, at any point, ask for my permission to enter my property and I at no time gave them permission to do so. I recall something being said at the commencement of the search by the officer who identified himself as Detective Sergeant Loudon to the effect that his warrant covered the search to obtain information pertinent to the whereabouts of alleged fraudulent monies. No documentation was given to me setting out the grounds for the search and seizure of my property which then followed.
The German police officers did not personally examine items of my property except in the case of 3 gift-wrapped packages, which had been brought by my computer supplier as Christmas presents for my 3 children. The German female police officer personally unwrapped these items and she then pointed out to the English police officers, other items of my property in which she was interested, and which she wished to have removed from my house.
The German female police officer went upstairs into my office and...
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