Bermingham & Ors v Director of the Serious Fraud Office & Anor [2006] EWHC 200 (Admin)

“The Director may investigate any suspected offence which appears on reasonable grounds to involve serious or complex fraud.”

“The Director may - institute and have the conduct of any criminal proceedings which appear to him to relate to such fraud…” institute and have the conduct of any criminal proceedings which appear to him to relate to such fraud…”

“(1) The Secretary of State must issue a certificate under this section if he receives a valid request for the extradition to a category 2 territory of a person who is in the United Kingdom. … (3) A request for a person’s extradition is valid if – (a) it contains the statement referred to in subsection (4), and (b) it is made in the approved way. (a) it contains the statement referred to in subsection (4), and (b) it is made in the approved way. (4). The statement is one that the person – (a) is accused in the category 2 territory of the commission of an offence specified in the request… … (8) A certificate under this section must certify that the request is made in the approved way. (9) If a certificate is issued under this section the Secretary of State must send these documents to the appropriate judge [defined by s.139(1)(a), for the purposes of England and Wales, as a district judge designated by the Lord Chancellor] – (a) the request; (b) the certificate; (c) a copy of any relevant Order in Council.”

“(1) This section applies if a person alleged to be the person whose extradition is requested appears or is brought before the appropriate judge for the extradition hearing. (2) The judge must decide whether the documents sent to him by the Secretary of State consist of (or include) – (a) the documents referred to in section 70(9); (b) particulars of the person whose extradition is requested; (c) particulars of the offence specified in the request; (d) … a warrant for his arrest issued in the category 2 territory… (3) If the judge decides the question in subsection (2) in the negative he must order the person’s discharge.” (a) the documents referred to in section 70(9); (b) particulars of the person whose extradition is requested; (c) particulars of the offence specified in the request; (d) … a warrant for his arrest issued in the category 2 territory… (3) If the judge decides the question in subsection (2) in the negative he must order the person’s discharge.”

“A person’s extradition to a category 2 territory is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have committed the extradition offence…”

“If the judge is required to proceed under this section he must decide whether there is evidence which would be sufficient to make a case requiring an answer by the person if the proceedings were the summary trial of an information against him.”

“If the judge is required to proceed under this section and the category 2 territory to which extradition is requested is designated for the purposes of this section by order made by the Secretary of State – (a) the judge must not decide under subsection (1), and (b) he must proceed under section 87.”

“(1) If the judge is required to proceed under this section (by virtue of section 84…) he must decide whether the person’s extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998. (2) If the judge decides the question in subsection (1) in the negative he must order the person’s discharge. (3) If the judge decides that question in the affirmative he must send the case to the Secretary of State for his decision whether the person is to be extradited.”

“(1) The Secretary of State must not order a person’s extradition to a category 2 territory if there are no speciality arrangements with the category 2 territory. … (3) There are speciality arrangements with a category 2 territory if (and only if) under the law of that territory or arrangements made between it and the United Kingdom a person who is extradited to the territory from the United Kingdom may be dealt with in the territory for an offence committed before his extradition only if – (a) the offence is one falling within subsection (4), or (b) he is first given an opportunity to leave the territory. (4) The offences are – (a) the offence in respect of which the person is extradited; (b) an extradition offence disclosed by the same facts as that offence…; (c) an extradition offence in respect of which the Secretary of State consents to the person being dealt with; (d) an offence in respect of which the person waives the right that he would have (but for this paragraph) not to be dealt with for the offence. (5) Arrangements made with a category 2 territory which is a Commonwealth country or a British overseas territory may be made for a particular case or more generally. (6) A certificate issued by or under the authority of the Secretary of State confirming the existence of arrangements with a category 2 territory which is a Commonwealth country or a British overseas territory and stating the terms of the arrangements is conclusive evidence of those matters.”

“(1) If the judge sends a case to the Secretary of State under this Part for his decision whether a person is to be extradited, the person may appeal to the High Court against the relevant decision. … (3) The relevant decision is the decision that resulted in the case being sent to the Secretary of State. (4) An appeal under this section may be brought on a question of law or fact. (5) If an appeal is brought under this section before the Secretary of State has decided whether the person is to be extradited the appeal must not be heard until after the Secretary of State has made his decision. …” 13. S.104: “(1) On an appeal under section 103 the High Court may – (a) allow the appeal; (b) direct the judge to decide again a question (or questions) which he decided at the extradition hearing; (c) dismiss the appeal. (2) The court may allow the appeal only if the conditions in subsection (3) or the conditions in subsection (4) are satisfied. (3) The conditions are that – (a) the judge ought to have decided a question before him at the extradition hearing differently; (b) if he had decided the question in the way he ought to have done, he would have been required to order the person’s discharge. (a) allow the appeal; (b) direct the judge to decide again a question (or questions) which he decided at the extradition hearing; (c) dismiss the appeal. (a) the judge ought to have decided a question before him at the extradition hearing differently; (b) if he had decided the question in the way he ought to have done, he would have been required to order the person’s discharge. (4) The conditions are that – (a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing; (b) the issue or evidence would have resulted in the judge deciding a question before him at the extradition hearing differently; (c) if he had decided the question in that way, he would have been required to order the person's discharge. (5) If the court allows the appeal it must – (a) order the person’s discharge; (b) quash the order for his extradition. …”

“(2) The conduct constitutes an extradition offence in relation to the category 2 territory if these conditions are satisfied – (a) the conduct occurs in the category 2 territory; (b) the conduct would constitute an offence under the law of the relevant part of the United Kingdom punishable with imprisonment or another form of detention for a term of 12 months or a greater punishment if it occurred in that part of the United Kingdom; (c) the conduct is so punishable under the law of the category 2 territory (however it is described in that law). (3) The conduct also constitutes an extradition offence in relation to the category 2 territory if these conditions are satisfied – (a) the conduct occurs outside the category 2 territory; (b) the conduct is punishable under the law of the category 2 territory with imprisonment or another form of detention for a term of 12 months or a greater punishment (however it is described in that law); (c) in corresponding circumstances equivalent conduct would constitute an extra-territorial offence under the law of the relevant part of the United Kingdom punishable with imprisonment or another form of detention for a term of 12 months or a greater punishment. (4) The conduct also constitutes an extradition offence in relation to the category 2 territory if these conditions are satisfied – (a) the conduct occurs outside the category 2 territory and no part of it occurs in the United Kingdom; (b) the conduct would constitute an offence under the law of the relevant part of the United Kingdom punishable with imprisonment or another form of detention for a term of 12 months or a greater punishment if it occurred in that part of the United Kingdom; (c) the conduct is so punishable under the law of the category 2 territory (however it is described in that law). …” (a) the conduct occurs in the category 2 territory; (b) the conduct would constitute an offence under the law of the relevant part of the United Kingdom punishable with imprisonment or another form of detention for a term of 12 months or a greater punishment if it occurred in that part of the United Kingdom; (c) the conduct is so punishable under the law of the category 2 territory (however it is described in that law). (a) the conduct occurs outside the category 2 territory; (b) the conduct is punishable under the law of the category 2 territory with imprisonment or another form of detention for a term of 12 months or a greater punishment (however it is described in that law); (c) in corresponding circumstances equivalent conduct would constitute an extra-territorial offence under the law of the relevant part of the United Kingdom punishable with imprisonment or another form of detention for a term of 12 months or a greater punishment. (a) the conduct occurs outside the category 2 territory and no part of it occurs in the United Kingdom; (b) the conduct would constitute an offence under the law of the relevant part of the United Kingdom punishable with imprisonment or another form of detention for a term of 12 months or a greater punishment if it occurred in that part of the United Kingdom; (c) the conduct is so punishable under the law of the category 2 territory (however it is described in that law). …”

“Extradition may be refused on any other ground which is specified by the law of the requested Party.”

“A person extradited shall not be detained or proceeded against in the territory of the requesting Party for any offense other than an extraditable offense established by the facts in respect of which his extradition has been granted, or on account of any other matters, nor be extradited by that Party to a third State – (a) until after he has returned to the territory of the requested Party; or (b) until the expiration of thirty days after he has been free to return to the territory of the requested Party.” (a) until after he has returned to the territory of the requested Party; or (b) until the expiration of thirty days after he has been free to return to the territory of the requested Party.”

“(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right. (2) Subsection (1) does not apply to an act if – (a) as the result of one or more provisions of primary legislation, the authority could not have acted differently…” (a) as the result of one or more provisions of primary legislation, the authority could not have acted differently…”

“6(1) In the determination of… any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law… (2) Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

“(1) Everyone has the right to respect for his private and family life, his home and his correspondence. (2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

“One last thing. An unexpected change of circumstances re LJM. We have always assumed that the swap sub assets have nil value, because of the mark to market value of the Rhythm Net Put. This was true up to about 10 days ago, when Enron became a virtual company, and its shares went through $60. I ran the numbers last night, and I would say there is quite some value there now. The trick will be in capturing it. I have a couple of ideas, but it may be good if I don’t share them with anyone until we know our fate!!!”

“7. Between February and August 2000, David Bermingham, Giles Darby, Gary Mulgrew, Enron Chief Financial Officer Andrew Fastow and Enron Managing Director Michael Kopper devised and executed a scheme to defraud NatWest. The essence of the scheme was that, by misrepresentations, omissions, and deceit, the co-schemers caused NatWest to sell its interest in a limited partnership for $1 million to an entity that the co-schemers secretly controlled. The co-schemers knew that NatWest’s interest in the partnership was worth well in excess of $1 million. In fact, weeks later, the entity that David Bermingham, Giles Darby and Gary Mulgrew secretly controlled received approximately $7.3 million for one-half of the same interest that they caused NatWest to sell for $1 million. 8. The three NatWest employees charged in the scheme… each received approximately $2.4 million for their participation in the scheme. Each of the defendants recommended that NatWest sell its interest for $1 million, but none of them disclosed to NatWest that the interest in the partnership was, in fact, worth far more, or that they were investing in the entity that was buying that same interest…”

“I refer to your recent telephone conversation with Ken O’Donnell in relation to the activities of Messrs Darby, Mulgrew and Bermingham as disclosed to you at a presentation by the FBI on 12 June 2002. The [FSA] has been reviewing the individuals’ conduct following their disclosure to us of information regarding their involvement in transactions relating to Enron. To date no formal investigation has commenced. However a disclosure of information was made to the [SEC] on 4 March 2002 on the basis that the US authorities were the most appropriate to investigate the matter. At the time FSA possessed no evidence of a crime occurring in the UK. [RBS] informed the FSA that it had reported its suspicions to the City of London Police… Subsequently FSA discussed the matter with the police and was informed that without further evidence they were unlikely to take the matter forward… At a meeting yesterday at FSA, the FBI stated that it intended to conduct interviews with various witnesses based in the UK. FSA had been given no prior warning that this was to happen. At the same meeting it was confirmed that the joint US Department of Justice, SEC and FBI investigation into events at Enron possesses evidence that a fraud may have taken place in the UK. Again this was the first time that FSA had been informed of this. For your information I have enclosed documents which were disclosed to SEC. These set out our understanding of the transactions that took place and a summary of the information obtained by FSA at that time… To the extent that any of the information enclosed with this letter is confidential information under section 348 of the Financial Services and Markets Act 2000, it is disclosed to you in accordance with… Regulations… for the purpose of any criminal investigation or for the purpose of initiating any such investigation or facilitating a determination of whether it should be initiated.”

“It was not until I received a letter dated 23 July 2004 from the firm of solicitors, Jeffrey Green Russell, that I was asked to consider whether the SFO should investigate the allegations against their clients.”

“8. If the [Director] did receive materials with a view to considering whether to commence an investigation, a decision by the SFO not to proceed in 2002 is explicable on the basis as recorded [in a file note prepared by a detective sergeant in the City of London Police] that it appeared to Tim Crump of the FSA that the prosecution of the Appellants had been brought for the ulterior purpose of obtaining evidence against people involved in Enron.”

“Tim [Crump] has also indicated that the Dept of Justice have bigger fish to fry in the US and are probably aiming towards using BERMINGHAM and others to prosecute the ENRON individuals.”

“(d) Defendant agrees to testify at any proceeding in the Southern District of Texas or elsewhere as requested by the Department.”

“Southampton: In approximately February 2000, Enron’s CFO, KOPPER, three bankers employed by [the Bank] and others devised a scheme to defraud Enron and others in connection with a buyout of the investment interests of [the Bank] and [CSFB] in an SPE entity called Swap Sub. To carry out the scheme, KOPPER… and others caused Enron to pay $30 million for the Swap Sub buyout. That price was based on Enron’s CFO’s false representation to Enron that [the Bank] and CSFB had agreed to sell their interests in Swap Sub for $20 million and $10 million, respectively. In fact, [the Bank] received only $1 million and had agreed to receive this sum based on fraudulent misrepresentations and fraudulent conduct of its own employees, who sought to skim profits that should have gone to [the Bank]. As a result, the three NatWest bankers who participated in the scheme received approximately $7.3 million.”

“Between approximately February 2000 and August 2000, defendants David Bermingham, Giles Darby, and Gary Mulgrew, and others, devised and executed a scheme to defraud NatWest and GNW and deprive them of money and their right to honest services by recommending to GNW that it sell its interest in Swab Sub for only $1m, when the defendants knew that GNW’s interest was worth far more, and when the defendants were planning fraudulently to convert the balance of GNW’s interest to themselves and others.”

“14. Due to a dramatic increase in the market price of Enron stock, the value of Swap Sub (whose primary asset was Enron stock) had also increased dramatically. I was, however, barred from profiting from any increase in the value of Enron stock held by Swap Sub. In approximately February 2000, I and others, including three bankers employed by NatWest, participated in a scheme to extract this increased value by defrauding Enron and NatWest. 15. Enron paid $30 million for the Swap Sub buyout. That price was based on my misleading representation to Enron that the limited partners of Swap Sub had agreed to sell their interests in Swap Sub for $20 million and $10 million, respectively. In fact, NatWest had agreed to sell its interest for only $1 million, not $20 million. I knew that the NatWest bankers induced NatWest to sell its interest in Swap Sub for $1 million at a time they knew the interest was worth significantly more. 16. As a result of their participation in the scheme, the three NatWest bankers together received approximately $7.3 million…”

“The fact that each of these defendants are [sic] United Kingdom nationals, living and working in England, and that it was a United Kingdom Bank which suffered the loss does not matter. The fact that the conduct of each of these defendants, if looked at individually, might show that, say 95% of that conduct was within the United Kingdom and only 5% within the category 2 territory does not matter. S.137(2)(a) does not require all the conduct to have occurred in the category 2 territory. I am satisfied that s.137(2)(a) is satisfied.”

“[W]e invite you to conduct an investigation as to whether or not a prosecution should be brought in the UK against these three clients. It seems to us that in accordance with the comments of the Home Secretary which were widely quoted in the press, namely that the UK would prosecute any alleged offender where there was evidence of an offence having been committed in the UK, … this is exactly what should happen in this case.”

“The losers were Enron and National Westminster Bank… [B]ut for the evidence of the American investigation I cannot see that there would be reasonable grounds for suspecting an offence of serious or complex fraud… The report by RBS to the police makes it clear that there may be a fraud – probably on Enron although possibly too on NatWest but it is clear that at that stage there were insufficient grounds for commencing a criminal investigation in the UK. Even if there were the evidence was in America and it was entirely logical to leave it to the Enron Task Force… Whether Kopper and Fastow would be available to give evidence in the United Kingdom is presumably doubtful but even if they were, are there any public interest considerations which require us to take over this matter with a view to prosecuting in the United Kingdom? I do not think there are. The most compelling argument advanced by [the solicitors] was to quote the Home Secretary… when… he said ‘Had we evidence in this country of a crime committed here then of course the police and the Attorney General would have taken action’. That is of course right and any crime committed in the United Kingdom should be prosecuted if the evidence is available. But here we are dealing with a different matter. We are dealing with a crime that by its nature is committed over more than one jurisdiction. Prosecuting and investigating authorities competing for the right to try it is unlikely to be in the public interest. On the contrary. It is important that we cooperate and coordinate such investigations and prosecutions and, where possible, they are all tried before the same Court. In this case Fastow and Kopper are to be tried in the United States and are able to give evidence against the three above. Any investigation in this country would lead to further delay. I note that the defendants do not admit their guilt. For these reasons I reject this case.”

“This is a case where the evidence is to be found in the United Kingdom, Cayman Islands and the United States of America. In particular the other participants in the alleged conspiracy – Kopper and Fastow – are to be dealt with in, and are available to give evidence in, the United States. In these circumstances I think it more likely to be in the interests of justice for your clients to be tried in the United States. In the correspondence you quoted the Home Secretary in connection with an entirely different case as saying ‘Had we evidence in this country of a crime committed here then of course the police and the Attorney General would have taken action’. That I am sure is right but… I do not think [the Home Secretary] was necessarily suggesting that an investigation would inevitably follow in every circumstance where [there is] some evidence that an offence has been committed here where the evidence shows that the facts may give rise to criminal offences committed within two or possibly three jurisdictions simultaneously. … The previous involvement of [the SFO] was to assist the United States Authorities in obtaining evidence in this country for the Enron investigation generally. There has been no previous investigation by this Office under s.1 Criminal Justice act 1987 into your clients and my understanding of the position of [the FSA] is that they did not commence an investigation although they did refer the matter to the SEC. In the circumstances I do not intend to commence an investigation under s.1 Criminal Justice Act 1987.”

“The defendants put forward the proposition… that these extradition proceedings ought never to have been brought. The defendants are UK citizens working in the UK, accused of defrauding their UK employers… At any trial it will be necessary to explore whether the value attributed to ‘Swap Sub’, at the time of its sale, was fair and reasonable. The evidence relevant to that is largely to be found in London. Mr Jones… says… these proceedings are an abuse of the processes of the UK court. The UK regulatory and prosecuting agencies are said to have surrendered improperly their statutory responsibilities to [the Enron Task Force]. …In my judgment the defence submissions place too great an emphasis on the sale of Swap Sub by the bank, and ignore the very real US links and the conduct which took place in the US. At any trial it will be necessary to consider the defendants’ involvement in Southampton K Co… It seems to me that there is a very real basis, on the facts as alleged, for the case to be tried in Houston. The scheme could not have got off the ground without Fastow, Kopper and Enron’s involvement… Of course, these defendants could have been tried here but it would seem they are not going to be… The reality is that were the SFO now to commence an investigation, then by the time they were ready to launch a prosecution, there would be defence submissions inviting the court to stay the prosecution as an abuse because of what by then would be the considerable delay. Additionally and crucially Kopper and Fastow are important witnesses for the prosecution. They are readily available to give evidence in the States but not in the UK…”

“I felt that rather than give disinterested evidence he was (maybe unconsciously) pressing home the defence agenda. It must be rather depressing for him to practice [sic] as a defence attorney in the Federal Courts when he is of the opinion that fair trials and justice are not available.”

“I accept the defendants could have been prosecuted in the UK. There was, however, no obligation to prosecute them in the UK. They are not going to be prosecuted in the UK. There is a good and proper basis for prosecuting them in the US. The process of extradition is ‘necessary in a democratic society’ and proportionate. Whether considered separately or in combination the arguments put before me fail to identify a clear risk to these defendants of suffering a flagrant denial of a fair trial.”

“[t]he [Director] has failed to take into account that the substance of the conduct alleged, and the most important evidence, is in the United Kingdom”. iii) The Director wrongly asserted, again in the letter of 23 December 2004, that “[w]ithout the evidence provided by the United States there would be insufficient grounds for an investigation in this Country.”

“At the heart of this matter, and the associated extradition proceedings, is the absence of any statutory or other mechanism for determining in which jurisdiction an allegation of crime should be investigated and tried where more than one jurisdiction has power to bring the allegation to trial.”

“Prosecuting and investigating authorities competing for the right to try it is unlikely to be in the public interest… It is important that we cooperate and coordinate such investigations and prosecutions and, where possible, they are all tried before the same Court... Any investigation in this country would lead to further delay.”

“In cases where the criminality occurred in several jurisdictions, provided it is practicable to do so, prosecutors should consider dealing with all prosecutions in one jurisdiction. In such cases prosecution should take into account the effect that prosecuting some defendants in one jurisdiction will have on any prosecution in a second or third jurisdiction. Every effort should be made to guard against one prosecution undermining another. When several criminals are alleged to be involved in linked criminal conduct, whilst often it may not be practicable, if it is possible and efficient to do so, prosecutors should consider prosecuting all those involved together in one jurisdiction.”

“[t]he US Department of Justice has sought to gain unfair procedural advantage by manipulating the process of the English court in that it unnecessarily delayed the submission of the request for extradition until the Extradition Act 2003 came into force”. iv) He should have held that the defendants’ extradition would not be compatible with their Convention rights under the 1998 Act: s.87. The points relating to the Secretary of State are: v) He should have concluded that there were no or no effective specialty arrangements pursuant to s.95. vi) He should have concluded that the defendants’ extradition would not be compatible with their Convention rights under the 1998 Act. There is a degree of overlap between some of these points. Subject to that I will deal with them in the order I have set them out. THE APPEAL AGAINST THE DISTRICT JUDGE i). “Extradition Offence”

“The conduct constitutes an extradition offence in relation to the category 2 territory if these conditions are satisfied – (a) the conduct occurs in the category 2 territory”

“I cannot, however, accept that subsection (3) is to be read as requiring that all the conduct complained of should have occurred in the category 1 territory. The subsection does not so provide, and the qualification that no part of the conduct should have occurred in the United Kingdom, expressly stipulated in subsections (2)(a), (5)(a) and (6)(a), is not found in (3)(a). It must be inferred that that qualification was not intended. It is enough, under subsection (3)(a), if some of the conduct complained of or relied on occurred in the category 1 territory.”

“The conduct must occur ‘in’ the category 1 territory if the condition which is set out in these paragraphs to be satisfied. But a purposive meaning must be given to the word ‘conduct’ in this context. It would impose a wholly artificial restriction on the extradition process if it were to be taken as meaning that all the conduct which resulted in the offence must have taken place exclusively within the category 1 territory. Actings elsewhere will be sufficient to constitute conduct in that territory so long as their intended effect was to bring about harm within that territory.”

“The defence did not identify any potential witness that they might wish to call who might be unable to attend by reason of the passage of time.”

“If I had thought that Parliament did not intend this safeguard to be used in this way, then I would think it necessary to infer that the magistrate has power to refuse to commit if he finds that it would be contrary to natural justice to surrender the man. But in my judgment Parliament by providing this safeguard has excluded the jurisdiction of the courts.”

“… [T]he prosecution of the Appellants had been brought for the ulterior purpose of obtaining evidence against people involved in Enron.”

“Following the return of the indictment in this case, I consulted with the Office of International Affairs, United States Department of Justice about the requirements for extradition of the defendant from the United Kingdom. I was instructed to, and did prepare an extradition request which establishes a prima facie case… At that time, and through the date that I submitted the extradition request to the Office of International Affairs, I had no knowledge, nor was I informed, that a new Extradition Act was being contemplated by the United Kingdom. I had only been informed that both the United Kingdom and the United States were negotiating a new Extradition Treaty… I was advised and directed not to wait for the implementation of the new treaty, nor did I wait for the implementation of the new Extradition Act, of which I had no knowledge…”

“I felt that rather than give disinterested evidence he was (maybe unconsciously) pressing home the defence agenda. It must be rather depressing for him to practice [sic] as a defence attorney in the Federal Courts when he is of the opinion that fair trials and justice are not available.”

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence.”

“24. While the Strasbourg jurisprudence does not preclude reliance on articles other than article 3 as a ground for resisting extradition or expulsion, it makes it quite clear that successful reliance demands presentation of a very strong case. In relation to article 3, it is necessary to show strong grounds for believing that the person, if returned, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment: Soering, paragraph 91; Cruz Varas, paragraph 69; Vilvarajah, paragraph 103. In Dehwari, paragraph 61… the Commission doubted whether a real risk was enough to resist removal under article 2, suggesting that the loss of life must be shown to be a ‘near-certainty’. Where reliance is placed on article 6 it must be shown that a person has suffered or risks suffering a flagrant denial of a fair trial in the receiving state: Soering, paragraph 113…; Drodz, paragraph 110; Einhorn, paragraph 32; Razaghi v Sweden; Tomic v United Kingdom.”

“[S]ome [cases] were of a hybrid nature. The removal of a person from country A to country B may both violate his right to respect for his private and family life in country A and also violate the same right by depriving him of family life or impeding his enjoyment of private life in country B.”

“43. This case… is concerned with article 8. In that context, Lord Bingham also refers [in Ullah]to a third or hybrid category. Here ‘the removal of a person from country A to country B may both violate his right to respect for his private and family life in country A and also violate the same right by depriving him of family life or impeding his enjoyment of private life in country B’ (paragraph 18). On analysis, however, such cases remain domestic cases. There is no threshold test of enormity or humanitarian affront. But the right to respect for private and family life, home and correspondence, which is protected by article 8, is a qualified right which may be interfered with if this is necessary in order to pursue a legitimate aim. What may happen in the foreign country is therefore relevant to the proportionality of the proposed expulsion.”

“The lack of success of applicants relying on articles 2, 5 and 6 before the Strasbourg court highlights the difficulty of meeting the stringent test which that court imposes. This difficulty will not be less where reliance is placed on articles such as 8 or 9, which provide for the striking of a balance between the right of the individual and the wider interests of the community even in a case where a serious interference is shown. This is not a balance which the Strasbourg court ought ordinarily to strike in the first instance, nor is it a balance which that court is well placed to assess in the absence of representations by the receiving state whose laws, institutions or practices are the subject of criticism. On the other hand, the removing state will always have what will usually be strong grounds for justifying its own conduct: the great importance of operating firm and orderly immigration control in an expulsion case; the great desirability of honouring extradition treaties made with other states. The correct approach in cases involving qualified rights such as those under articles 8 and 9 is in my opinion that indicated by the Immigration Appeal Tribunal (Mr C M G Ockelton, deputy president, Mr Allen and Mr Moulden) in Devaseelan v Secretary of State for the Home Department [2002] IAT 702, [2003] Imm AR 1, paragraph 111: ‘The reason why flagrant denial or gross violation is to be taken into account is that it is only in such a case - where the right will be completely denied or nullified in the destination country - that it can be said that removal will breach the treaty obligations of the signatory state however those obligations might be interpreted or whatever might be said by or on behalf of the destination state’.”

“[I]t is only in exceptional circumstances that the extradition of a person to face trial on charges of serious offences committed in the requesting State would be held to be an unjustified or disproportionate interference with the right to respect for family life.”

“I accept the defendants could have been prosecuted in the UK. There was, however, no obligation to prosecute them in the UK. They are not going to be prosecuted in the UK. There is a good and proper basis for prosecuting them in the US. The process of extradition is ‘necessary in a democratic society’ and proportionate.”

“The conditions are that – (a) the judge ought to have decided a question before him at the extradition hearing differently; (b) if he had decided the question in the way he ought to have done, he would have been required to order the person’s discharge.”

“In my judgment the defence submissions place too great an emphasis on the sale of Swap Sub by the bank, and ignore the very real US links and the conduct which took place in the US. At any trial it will be necessary to consider the defendants’ involvement in Southampton K Co… It seems to me that there is a very real basis, on the facts as alleged, for the case to be tried in Houston. The scheme could not have got off the ground without Fastow, Kopper and Enron’s involvement…”

“Extradition does not and should not depend upon the ability or otherwise of the requested state to undertake its own investigations with a view to prosecuting the case within its own jurisdiction. Such an approach would involve unnecessary duplication of effort, would result in additional delays in the prosecution of suspected criminals and would have an adverse effect upon international relations and international co-operation in the prosecution of serious crime. In most, if not all, extradition cases the requested state would depend upon co-operation from the requesting state if the requested state were to embark upon its own investigation and ultimate prosecution of the case.”

“The object of extradition is to return a person who is properly accused or has been convicted of an extradition crime in a foreign country to face trial or to serve his sentence there… The extradition process is only available for return to friendly foreign states with whom this country has entered into either a multi or a bilateral treaty obligation involving mutually agreed and reciprocal commitments… [T]here is a strong public interest in our respecting such treaty obligations. Such international cooperation is all the more important in modern times, when cross-border problems are becoming ever more common, and the need to provide international solutions for them is ever clearer.”

“This Constitution… and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby…”

“the country receiving the offender against its laws from another country had no right to proceed against him for any other offense than that for which he had been delivered up”

“[T]he doctrine of specialty is concerned primarily with prosecution for different substantive offenses than those for which consent has been given, and not prosecution for additional or separate counts of the same offense. The appropriate test for a violation of specialty ‘is whether the extraditing country would consider the acts for which the defendant was prosecuted as independent from those for which he was extradited’.”

“84. The US Courts do not infer consent merely because there is silence. They do not turn a blind eye to what are obvious problems in the sending state’s known attitude, whether from past extradition requests or from the particular case or Treaty involved. Rather… they adopt a realistic assessment of the sending state’s attitude, in recognition of the specialty doctrine as a principle of international comity and out of respect for a foreign state’s sovereignty. But the Courts do not treat it as a technical hurdle devised for the benefit of properly convicted criminals, enabling them to take points which truly belong to the sending state and which the Courts properly infer that the sending state does not take. 85. There is nothing in the cases which would justify the conclusion that the US Government or Courts would not respect the express limits in the UK-US Treaty or in the 2003 Act or in any judgment of this Court…”

“Rauscher… was decided against a backdrop of political controversy over precisely whether the treaty contained a rule of specialty. The controversy arose after the conclusion of the treaty when one Winslow was charged with forgery in the United States. The United States requested the extradition of Winslow, who had taken refuge in England. Before Britain agreed to relinquish Winslow, the British Foreign Office required a pledge that the United States would not try Winslow on any charge other than forgery. The United States refused to accede to the British demand, diplomatic negotiations ensued, and the matter was significant enough that the British Foreign Minister, Lord Derby, spoke on the subject in the House of Lords. Thus, although there is no record of a formal British protest of the extradition of Rauscher, the British had made known their very strong feelings through a history of negotiations and deliberations.”

“US authorities will not seek a superseding indictment charging [the defendants] with offenses arising from conduct other than that conduct for which [they] have been extradited by the United Kingdom.”

“[A]s we stated in our earlier response, the prosecutors have advised that the statute of limitations bars prosecutors from charging the defendants with further substantive offenses based upon these facts after May 2005.”

“First, if a judge determines that they obstructed justice by contesting extradition proceedings. Second, if a judge finds that the value of the fraud they committed is in excess of $7 million. Third, because they committed their crimes in the United Kingdom.”

“The first allegation that contesting extradition is tantamount to the offense of obstructing justice is absurd. Under United States law, and we assume under United Kingdom law, merely defending oneself in a legal action, including contesting extradition, is not considered a criminal offense. I have attached an outline of the possible enhancements that the fugitives may face if they were extradited to the United States and convicted on all charges for which they might be extradited, and if the sentencing court follows the advice set forth by the Sentencing Guidelines. These enhancements include two of the three cited by the defendants – the amount of the fraud and the use of sophisticated means to commit the fraud, or commission of a substantial part of the fraud scheme outside the United States… If all the possible enhancements are established, the maximum sentence each defendant could receive is 135 – 168 months in prison, well below the statutory maximum of 420 months [a footnote states that this is a ‘worst case scenario’ for the defendants]. This is based upon the calculations provided by the 1998 Sentencing Guidelines which were in effect at the time the alleged offences were committed.”

“This assumes a $19 million loss, but could be reduced by 1 point if the loss is found to equal the amount of gain to the defendants, or $7.3 million.”