Norris v United States of America & Ors [2007] EWHC 71 (Admin)

[2007] EWHC 71 (Admin)Case No CO/8286/2005
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
IN THE MATTER OF SS. 103 AND 108 OF THE EXTRADITION ACT 2003
Venue Royal Courts of Justice, Strand, London, WC2A 2LL
25 th January 2007
Before
THE RIGHT HONOURABLE LORD JUSTICE AULDTHE HONOURABLE MR JUSTICE FIELD
Between
IAN NORRISAppellant
Mr Richard Gordon QC & Mr Martin Chamberlain for ClaimantMr David Perry QC and Miss Adina Ezekiel for First RespondentMr Khawar Qureshi QC for Second RespondentMr David Vaughan QC, Mr Thomas de la Mare and Ms Sarah Ford for First Intervening PartyMr Richard Lissack QC, Mr James Flynn QC and Ms Eleanor Davison for Second Intervening PartyHearing Hearing dates: 17 th& 18 th October 2006
JudgmentLord Justice Auld :Introduction and the issuesDate 2007-01-25
[1]Mr Ian Norris, a United Kingdom national and resident, by these two appeals, challenges his extradition to the United States of America to face charges of conspiracy to fix prices and obstruct the course of justice and of interference with witnesses.[2]More precisely, Mr Norris appeals 1) pursuant to section 103 of the Extradition Act 2003 (“the 2003 Act”), an order of District Judge Nicholas Evans on 1st June 2005 in the Bow Street Magistrates’ Court, in response to a request from the Government of the United States in March 2004, to send his case to the Secretary of State for his decision whether, pursuant to section 87(3) of the Act, he should be extradited; and 2) whether, pursuant to section 108 of the 2003 Act, a decision of the Secretary of State of 29th September 2005 to extradite him was lawful.[3]As to his appeal against the Secretary of State’s decision, Mr Norris acknowledges that, in the light of the limited discretion the 2003 Act confers on the Secretary of State, he can succeed in this Court against the Secretary of State only if he also succeeds against the District Judge on one or more of his challenges to his decision. There is another ground of appeal, which turns on the interpretation and application of the rule in section 95 of the 2003 Act as to whether there are effective speciality arrangements with the United States - which, if correct, would constitute a separate ground of appeal against the Secretary of State. In the light of the Divisional Court’s judgment in Bermingham v Government of the United States of America [2006] EWHC 2000 (Admin), he reserves that argument for any appeal that might follow to the House of Lords.[4]The appeals raise four main issues: 1. whether the offences specified in the extradition request are extradition offences within section 137 of the 2003 Act, more particularly: 1) whether the price-fixing conspiracy alleged against Mr Norris constituted a criminal offence, whether of common law conspiracy to defraud or otherwise, in England & Wales at the time it is alleged to have taken place (“the conspiracy to defraud issue”); and 2) if such conduct was capable of constituting a common law conspiracy to defraud, whether, nevertheless it could not have amounted to an extradition offence within section 137 because the United States offence of price-fixing does not require proof of dishonesty, and would not, therefore, if committed in England & Wales, have constituted such a conspiracy (“the double criminality issue”); 2. insofar as the allegations concern conspiracy to obstruct the course of justice and tampering with and obstructing justice, whether obstruction of foreign investigators, in this instance United States investigators, would have constituted an extradition offence if committed here (“the transposition issue”); 3. whether it would be unjust or oppressive under section 82 of the 2003 Act, to extradite him to the United States, given the passage of time since he is alleged to have committed the offences (“the delay issue”); and 4. whether, as required by section 87 of the 2003 Act, his extradition would be compatible with his rights under Article 8 of the European Convention of Human Rights (“ECHR”) to respect for his private and family life, and his right not to be discriminated against on grounds of nationality under Article 14 ECHR (“the human rights issue”).[5]Goldshield Group PLC (“Goldshield”), the First Intervening Party, and the Serious Fraud Office, the Second Intervening Party, appear through counsel, their respective interests being primarily on the first of those issues, as to whether the English common law offence of conspiracy to defraud is capable of application to price-fixing, so as to constitute an extradition offence within section 137 of the 2003 Act. This is, or is similar to, an issue or issues that may arise in pending criminal proceedings to which both are parties in the Southwark Crown Court, R v O’Neill & Ors (T2006/7302). The facts United States Government’s allegations

The facts

[6]Mr Norris was formerly Chief Executive Officer of Morgan Crucible PLC (“Morgan Crucible”), a leading international manufacturer of carbon products. The United States Government’s allegations against him, in respect of which it seeks his extradition, relate to the activities in the United States and elsewhere of Morgan Crucible, which is based in Windsor, England, and its two subsidiaries, Morganite Inc. (“Morganite”) and Morgan Advanced Materials and Technology Inc. (“MAMAT”), both of which are based in the United States, and to all of which I refer as “Morgan”.[7]Mr Norris worked in Morgan Crucible’s carbon division for 29 years before becoming Chief Executive Officer of the Company in 1998. As such, he assumed responsibility for 180 subsidiaries in more than 60 countries. In October 2002 he retired because of ill-health.[8]In April 1999, over three years before Mr Norris’s retirement, the United States Government began investigating allegations of contravention of the statutory prohibition and criminalisation of price-fixing in the United States, now found in “Title 15”, paragraph 1 of the United States Code, but originally in the “Sherman Act” of 1890. In the autumn of 2003, a federal grand jury sitting in the Eastern District of Pennsylvania issued a subpoena requiring Morganite and its subsidiary companies to produce certain records. In due course, Morgan Crucible and Morganite paid fines of US$ 1 million and US$ 10 million respectively. Most of Morgan’s directors, officers and employees were given immunity from prosecution as part of a plea bargain arrangement. Mr Norris and three others were not.[9]The United States Government’s investigation, on its case, disclosed the following material facts, deposed to in the extradition proceedings before the District Judge by Lucy P McClain, a trial attorney for the Anti Trust Division of the United States Department of Justice.[10]At all material times Morgan was involved in the manufacture and sale of carbon products in the United States and in other countries. Between late 1989 and May 2000 Morgan and various companies based in France, Germany and Austria agreed to suppress and eliminate competition by fixing the prices of certain carbon products they respectively manufactured and sold. The purpose and effect of that conspiracy were to enable the companies to sell their products for prices higher than they could have sold them if they had been competing with one another as to price. In furtherance of the conspiracy, Mr Norris and his co-conspirators took part in and agreed at meetings to charge prices at certain levels and otherwise to maintain or increase prices of certain carbon products sold by the companies that were party to the conspiracy in the United States and elsewhere. To that end, they discussed and exchanged price quotations to certain customers, so as to ensure that they did not undercut each other’s prices, and submitted collusive, non-competitive or otherwise rigged bids, and refrained from submitting bids to public transit authorities. In at least two instances when a co-conspirator inadvertently quoted lower prices to Morgan customers in the United States, Morgan complained and the co-conspirator significantly increased its quoted prices, falsely claiming to the customer that its original prices had been miscalculated.[11]Ms McClain, in her affidavit, summarised the nature and effect of this conduct, in the following words:
“The conspirators routinely sold product to their customers pursuant to their agreement to avoid price competition. In effect, the conspirators defrauded their customers by requiring that they pay higher prices than they might otherwise have paid had there been no conspiracy.”
[12]In April 1999 the United States federal grand jury investigating the conduct served Morganite and its affiliated companies with a subpoena requiring it to produce certain business records. Following service of the subpoena, Mr Norris instructed, through a “task force” he set up for the purpose, all Morgan entities involved in the price-fixing conspiracy to remove, conceal or destroy any documentary material, in particular Morgan’s sales files in Europe, evidencing Morgan’s involvement in the conspiracy. He also instructed the retention and concealment of certain documents to enable Morgan to continue monitoring the working of the conspiracy.[13]In about November 1999 Mr Norris met several of the co-conspirators in England to discuss the United States authorities’ investigation into their conspiratorial dealings and meetings, and to devise a false explanation, other than price-fixing, to be put to the authorities for the meetings. As Ms McClain put it in her affidavit - “Norris and his subordinates … discussed ways in which they could conceal the true purpose of the price-fixing meetings when asked about them. They decided to falsely characterise their meetings with competitors as discussions of legitimate joint ventures rather than disclose the fact that they were price-fixing meetings. Norris expressed his concern that the United States investigators would not believe Morgan’s false explanation that the meetings were held to discuss joint ventures, in part because Morgan had no contemporaneous notes from the meetings to support its joint venture explanation. Norris then directed his subordinates to create false summaries of the price-fixing meetings that they would use as a guide or script in answering any future questions about what had occurred at their meetings. ”[14]To that end, a “script” was prepared which Mr Norris approved, of false information as to the purpose of the meetings for use in the event of any of the Morgan staff or others involved in the conspiracy being questioned by the authorities or by the federal grand jury. Those provided with the script were rehearsed and questioned about their recollection of the material contained in it. Those who Mr Norris felt would not be able to withstand questioning, he distanced from Morgan by arranging for their retirement or for them to become consultants. In January 2001 false hand-written summaries of potentially incriminating meetings were provided to the United States’ authorities’ investigators, who made plain they regarded Morgan’s accounts of the meetings as false.[15]At or about the same time, Morgan sought to persuade a German company alleged to be a party to the conspiracy, to support it in its false representations to the United States authorities so as, not only to exculpate Morgan, but also to cast blame on a French company, also alleged to be party to the conspiracy – a solicitation in which Mr Norris took a prominent and personal role.[16]Thereafter the federal grand jury continued with its investigations, and the United States authorities entered into negotiations with various companies in the Morgan group and their employees with a view to settlement of the matter against them without criminal proceedings – a plea bargain in which, as I have said, Mr Norris and two or three of his colleagues were not included.[17]In October 2002, Mr Norris retired from all his offices with Morgan, after which he maintains he was excluded from all the continuing exchanges and disclosures made by the United States authorities in the plea bargain negotiations with the other Morgan interests and personnel.

The United States proceedings and extradition request

[18]On 24th September 2003, the federal grand jury, on receipt of evidence of the alleged conspiracy, filed an indictment charging Mr Norris with three counts alleging obstruction of justice between April 1999 and August 2001. On 15th October 2003, upon the receipt of further evidence in the continuing investigation, the same grand jury returned a “superseding indictment” against Mr Norris adding, as count 1, a count of conspiracy to price-fix between late 1989 and at least May 2000. Among the particulars of that count were allegations of combining and conspiring “to charge prices at certain levels and otherwise increase or maintain prices” and “submitting collusive, uncompetitive and rigged bids, or refraining from submitting bids”. On the following day, a warrant for his arrest was issued.[19]Nearly a year later, on 28th September 2004, the grand jury returned a second superseding indictment (“the United States indictment”), identical to the first superseding indictment save that it included matters on which the United States Government intended to rely in determining the appropriate guideline sentence. On 7th October 2004 a further warrant for Mr Norris’s arrest was issued in the United States.[20]On 31st December 2004, at the request of the United States Government, an arrest warrant was issued in England, leading to his arrest and an initial hearing at Bow Street Magistrates’ Court where he was served with extradition papers, including the United States indictment and a copy of the affidavit of Ms Lucy McClain.[21]On 1st June 2005, District Judge Nicholas Evans, sitting at Bow Street Magistrates’ Court, in a fully reasoned judgment, held that the conduct in respect of which his extradition was sought constituted extradition offences within the meaning of the 2003 Act, that the extradition was not barred by the passage of time or by human rights considerations and that he should, therefore, in accordance with section 87(3) of the 2003 Act, send the case to the Secretary of State for his decision whether Mr Norris should be extradited. That decision is the first of the two under appeal.[22]On 29th September 2005, the Secretary of State decided to extradite Mr Norris. That is the second decision under appeal.[23]The first of the four counts in the United States indictment charges Mr Norris with conspiracy to fix prices contrary to the Sherman Act of 1890, which in its present form provides:
“Every contract, combination in the form of trust or otherwise, or conspiracy in restraint of trade or commerce among several states, or with foreign nations, is declared to be illegal. Every person who shall make any contract or engage in a combination or conspiracy hereby declared illegal shall be deemed guilty of a felony, and, on conviction thereof, shall be punished by fine not exceeding $10,000,000 if a corporation, or if any person, $350, 000, or by imprisonment not exceeding three years, or by both said punishments, in the discretion of the court.”
[24]Count 1 of the United States indictment alleges that:
“[b]etween 1989 and May 2000, [he] conspired with persons known and unknown to suppress and eliminate competition by fixing the prices of certain carbon products to be sold in the United States and elsewhere in unreasonable restraint of interstate and foreign trade and commerce.”
[25]In the extradition proceedings before the District Judge, the United States Government, for illustrative purposes in this jurisdiction, expressed the nature of the price-fixing conduct in respect of which extradition was sought in seven “charges” covering respectively the whole 11 year period of alleged price-fixing by Morgan and others, by reference to different periods within that over-all period and to different carbon products. In those charges the United States Government characterised the conduct complained of as a conspiracy to defraud by dishonestly entering into a price-fixing agreement for the supply of carbon products in the United States. I take the first of those “charges”, which covered the whole period of the conduct relied upon - as a specimen:
“Between 1st day of January 1989 and 31st day of May 2000 conspired together with executives, employees and officers of the companies … [Morgan etc.] and other persons unknown to defraud buyers of carbon products by dishonestly entering into an agreement to fix, maintain and co-ordinate the price for the supply of carbon products in the United States of America.”
[26]The conduct the subject of the United States proceedings against Mr Norris is thus, as Ms McClain deposed, that he was a leading light in a conspiracy over an 11 year period to defraud customers of Morgan and other companies engaged in the manufacture and supply of carbon products, by the operation of a price-fixing agreement or cartel in a number of countries, including the United States. However, in paragraph 11 of her affidavit, when commenting on the necessary ingredients of count 1, Ms McClain made plain that such a felony may be committed with or without dishonesty or other illegality, the heinousness of the conduct, if proved, being, no doubt, a matter for consideration on the issue of sentence. She deposed:
“11 Section One of the Sherman Act declares conspiracies and agreements which unreasonably restrain interstate trade and commerce as illegal. Not all restraints of trade are unreasonable; however, certain types of conduct are regarded as unreasonable per se. This means that the mere doing of the act itself constitutes an unreasonable restraint on commerce, and it is not necessary to consider why the act was committed or what effect it had on the industry. Agreements among competitors to fix prices or rig bids are such per se unreasonable restraints of trade and commerce and are illegal and there is no defence or legal justification for a conspiracy. … the law is violated even if the agreement did not contemplate the elimination of all price competition. The heart of a Section One Sherman Act violation is that the defendant and others joined in an unlawful conspiracy or agreement with each other which, if carried out or put into effect, would impose an unreasonable restraint upon interstate or foreign trade or commerce. … To satisfy its burden of proof and convict Norris on Count 1, the government, at trial, must establish beyond a reasonable doubt each of the following essential elements: (a) that two or more persons entered into an agreement to fix the price of relevant carbon products; (b) that the conspiracy existed at or about the time stated in the second superseding indictment; (c) that Norris knowingly became a member of the conspiracy; and (d) that the conspiracy restrained interstate or foreign commerce or trade. ….”
[27]Thus, it is not necessary – not a material averment - to secure a conviction of price-fixing in the United States, to prove that the conspirators intended to defraud or deceive. It would appear from Miss McClain’s account of the evidence that the United States authorities could have charged Mr Norris with fraud, contrary to Chapter 18, paragraphs 1341 or 1242, of the United States Code, which would have required proof of an intention to defraud, but they did not do so. However, proof of such an intention does not deprive a conspiracy of its illegality under the Sherman Act, or an averment of it in extradition proceedings of its putative illegality in the United States courts.[28]Counts 2, 3 and 4 of the United States indictment which I have compendiously described as charging Mr Norris with obstruction of justice, clearly alleged dishonest conduct in respect of those offences, conduct that would also go in support of the overlapping price-fixing conspiracy charged in count 1. They read as follows:
“2. Between April 1999 and August 2001 conspired with persons known and unknown to tamper with witnesses and corruptly to persuade other persons to alter, destroy, mutilate or conceal records and documents with intent to prevent their availability to the grand jury by (a) providing false and fictitious relevant information to the federal grand jury …; (b) preparing a ‘script’ containing false material information which was to be followed by anyone questioned by either the Anti-Trust Division or the federal grand jury; (c) contacting other persons who had information relevant to the investigation being […] and distributing the ‘script’ with instructions that it is followed when answering questions posed either by the Anti-Trust Division or the federal grand jury; (d) removing, concealing or destroying from their business files any documents which contained evidence of an anti-competitive agreement or reflected contacts between or among the co-conspirators; and (e) persuading, directing and instructing other person to remove, conceal or destroy any documents which contained evidence of an anti-competitive agreement or reflected contacts between or among their competitors. 3. Between November 1999 and February 2001, corruptly persuaded and attempted to persuade persons with intent to influence their testimony in an official proceeding, that is, the federal grand jury investigating, amongst other things, possible federal criminal Anti-Trust violations occurring in the carbon products industry. 4. Between April 1999 and August 2001, knowingly and corruptly persuaded other persons with intent to cause or induce those persons to alter, destroy, mutilate or conceal records and documents, with intent to impair their availability for use in an official proceeding, that is, the federal grand jury investigating, amongst other things, possible federal criminal Anti-Trust violations occurring in the carbon products industry.”

The 2003 Act

[29]The extradition sought is under Part 2 of the 2003 Act, namely for territories designated by order for that purpose by the Secretary of State pursuant to section 69, of which the United States is one. Extradition Act 2003 (Designation of Part 2 Territories) Order 2003 (SI No 3334) Before I turn to the relevant provisions of the Act, I should as a matter of history record that, on 24th February 2006, this Court, consisting of Sir Igor Judge P and Cresswell J in R (Norris) v SSHD (Case No CO/3557/2005) dismissed Mr Norris’s claim for judicial review of the continued designation of the United States and the consequent applicability of section 84(7) of the 2003 Act forbidding consideration by the court of the sufficiency of the evidence to make a case against him if the proceedings were a summary trial of an information against him. Thus, the District Judge was not only not required to consider, but forbidden from doing so, the sufficiency of the evidence upon which the United States Government relied in support of the conduct upon which it relied as constituting extradition offences.[30]In 1972 the United Kingdom and the United States had entered into a Treaty on Extradition, which had not been ratified by the United States until 1976 and which the United Kingdom did not bring into force as part of our domestic law until 1977. Under the regime of the 1870 Act, it was necessary for a requesting state in order to secure extradition to put before the court evidence that would justify committal for trial of the subject of the request if the alleged crime had been committed here, and the 1972 Treaty mirrored that requirement.[31]In 2003 the United Kingdom and the United States entered into a further Treaty on Extradition, subject to ratification; and the United Kingdom, pursuant, in part, to the new Treaty, introduced in Part 2 of the 2003 Act a new extradition regime for requesting States designated by the Home Secretary as category 2 territories. Under this regime, as I have said, it is no longer necessary to put before the court evidence sufficient to justify a committal or a case to answer if the conduct constituting the alleged offence had been committed in this country. It is enough for the requesting designated state to identify the conduct, for the court to consider whether it would, if proved, have constituted an offence in this country and, if so, whether the proposed extradition would be compatible with the individual’s Convention rights, before sending the case to the Secretary of State for his decision.[32]The 2003 Treaty has been ratified by the United Kingdom, but not by the United States, with the result that the Treaty, unlike the 2003 Act – anticipating mutual ratification - is not formally in force. In consequence, the 1972 Treaty, with its bilateral obligation on each state when requesting extradition to show a prima facie case, which the 2003 Treaty was intended to replace, remains in force. The question for the Divisional Court in Norris (1) was whether the lack of treaty reciprocity in this respect, as a matter of human rights, undermined the legality of the Secretary of State’s continued designation of the United States as a category 2 territory under Part 2 of the 2003 Act, dispensing in this country with the need to establish a prima facie evidential case for extradition. The Divisional Court held that it did not, Sir Igor Judge P, with whom Cresswell J agreed, distinguishing between the rights in international law conferred upon the United States and the United Kingdom against each other in the 1972 Treaty and the individual human rights of resident British citizens under the ECHR. Sir Igor said at paragraphs 44 and paragraph 45:
“44. The absence of reciprocity nevertheless provides the basis for Mr Jones’ primary complaint. He accepted that if the 2003 Treaty had been ratified by the United States within the short period envisaged by Article 23, then the extradition arrangements between the two countries would have been far more symmetrical, and that the 1972 Treaty would have ceased to provide the claimant with the treaty rights for which he contends. Indeed, whenever it is so ratified, any such rights will be extinguished. Mr Jones was unable to show any previous authority in the United Kingdom which suggested that the 1972 Treaty, standing alone, created personal rights enforceable by its individual citizens. The Treaty specified the circumstances in which the governments of the United Kingdom and United States agreed that extradition would, or would not, take place and they bound themselves to a series of pre-conditions which would govern the extradition process. Thereafter, the rights of citizens of the United Kingdom were governed by domestic legislative arrangements which ensured that the extradition process should be subject to judicial oversight … The Treaty reflected the relationship agreed between the United Kingdom and the United States for the purposes of extradition, rather than the municipal rights of United Kingdom citizens, enforceable against their own government. In brief, therefore, their rights were provided and guaranteed not by treaty, but by domestic legislation. 45. That forms the context in which to consider the Order, which deprives the claimant of the protective condition found in article IX 1972 Treaty. … The protective conditions in the 1972 Treaty, and in particular Article IX, cannot obstruct, or hinder, or postpone the application of the 2003 Act, or defer the impact of the new legislative structure. The Act itself does not provide that the wide powers granted to the Secretary of State may not be exercised, or that he should postpone making designation orders, or delay the enforcement of those orders until reciprocity is achieved.”
On 20th June 2006 the House of Lords refused Mr Norris’s petition for permission to appeal.[33]Accordingly, under the new 2003 Act procedure, the requesting state does not have to provide evidence to support the charges in respect of which it seeks extradition. The Act effectively transfers from the United Kingdom judge to the foreign court the task of deciding whether the evidence tendered by the prosecuting authority is sufficient to justify a trial. The adequacy of the evidence is thus for the foreign, not the United Kingdom court. Ms McClain, in paragraph 6 of her affidavit, explained how that is determined in the United States: “Under the federal law of the United States, a criminal prosecution is commenced when a grand jury files an indictment… The purpose of the grand jury is to review the evidence of crimes presented to it by the United States law enforcement authorities. After independently reviewing this evidence, each member of the grand jury must determine whether there is probable cause to believe that a crime has been committed and that a particular person committed that crime. If at least 12 jurors find that the evidence they have reviewed provides probable cause to believe that a particular person committed the crime, the grand jury may return an indictment. An indictment is a formal written accusation that charges the particular person, now a defendant, with a crime, identifies the specific laws that the defendant is accused of violating and specifies the date and place where the charged crime occurred.” (my emphasis)[34]Insofar as relevant to the issues in this case, the 2003 Act sets out a series of questions for a judge before whom an extradition request is made. If the answer to any of the questions is in favour of the person the subject of the request, the judge must discharge him. If, and only if, they all go against him, the judge must, pursuant to section 87(3), send the case to the Secretary of State for his decision whether to extradite the person. These are the questions for the judge relevant to the circumstances of this case: 1. whether, as required by section 78(2), the material put before him, includes “(b) particulars of the offence specified in the request” – not in issue; 2. if that and the other requirements of section 78(2) are satisfied, whether, pursuant to section 78(4), among other matters, “the offence specified in the extradition request is an extradition offence”, namely one in which “the conduct would constitute an offence” punishable with a custodial penalty of at least 12 months if it occurred in this country (section 137(2)(b) – issue 1(1) – the conspiracy to defraud issue – and issue 1(2) – the double criminality issue); 3. if so, whether, pursuant to section 79, there are no bars to extradition, including (c) “the passage of time”, namely where, as stated in section 82, it appears that “it would be unjust or oppressive to extradite … [Mr Norris] by reason of the passage of time since he is alleged to have committed the extradition offence” – issue 3 – the delay issue; and 4. whether, pursuant to section 87, Mr Norris’s extradition would be compatible with his ECHR rights within the meaning of the Human Rights Act 1998 (“the HRA”) – issue 4 – the human rights issue.[35]I preface my discussion of these issues by referring to the strong underlying public interest in extradition cases of giving effect to our reciprocal treaty obligations in an era where international cooperation has become of great importance to the safety and well-being of all state parties to such treaties; see most recently per Hale LJ, as she then was, in R(Warren) v SSHD [2003] EWHC 1177, at para 40, echoing a number of similar sentiments expressed by the House of Lords and Court of Appeal over the last few years. Issue 1 whether, as required by section 78(4)(b), the offence specified in the extradition request is “an extradition offence” as defined in section 137(2)(b)[36]Central to the appeal concerning the price-fixing conspiracy alleged in count 1 of the United States indictment is the question whether Mr Norris is accused of “an extradition offence” within the meaning of that expression in section 137(2), namely conduct in a category 2 territory which, if it had occurred here, would have been an offence in this country custodially punishable for at least 12 months. As I have indicated, in the context of this appeal the question has two aspects: first, whether the price-fixing conspiracy alleged in the request, would, if it had taken place here, have constituted an offence here, in particular, one of dishonesty, such as conspiracy to defraud; and, secondly whether, if it would have constituted such an offence here, the absence of any such requirement of dishonesty in the United States statutory definition of price-fixing would prevent it from being an extraditable offence within section 137 for want of satisfaction of the so-called requirement of “double criminality”.[37]I had better set out the material parts of sub-sections (1) to (3) in full:
“(1) This section applies in relation to conduct of a person if – (a) he is accused in a category 2 territory of the commission of an offence constituted by the conduct, or…; (b) he is alleged to be unlawfully at large after conviction by a court in a category 2 territory of an offence constituted by the conduct and he has not been sentenced for the offence. (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. …”
[38]The prohibition and criminalisation of price-fixing in the United States by the Sherman Act had no comparable statutory counterpart in this country until the Enterprise Act 2002 (“the 2002 Act”), which came into force after the end of the price-fixing conspiracy alleged against Mr Norris.[39]The District Judge, in his ruling on both aspects of the extradition offence issue, held that section 137 required him to consider the “conduct” as described in the United States Government’s request as a whole, which, in relation to the alleged price-fixing conspiracy, was of a dishonest cartel, which, in this country would have amounted to a common law conspiracy to defraud. In his view, the fact that dishonesty was not a necessary element of the cartel offence under the Sherman Act was nothing to the point, since the “double criminality rule” did not require him to find a criminal offence here to match the United States offence as charged there. It required him only to consider the conduct alleged against Mr Norris giving rise to that charge, and then to determine whether, if it had occurred here, it would have amounted to an offence here susceptible to 12 or more months’ imprisonment. Issue 1(1) – conspiracy to defraud - whether price-fixing was capable at the material time of amounting to the English common law offence of conspiracy to defraud[40]The conduct, to constitute a territorial extradition offence within section 137(2)(b) or an extra-territorial offence within section 137(3) must have been criminal under the law of England & Wales at the time when it occurred; see Somchai Liangsiriprasert v Government of the United States of America [1991] 1 AC 225, PC and R v Bow Street Metropolitan Stipendiary Magistrate ex p. Pinochet Ugarte (No. 3) [2000] 1 AC 147, 195, per Lord Browne-Wilkinson for the House of Lords (interpreting the Extradition Act 1989).[41]Mr Norris’s case and the stance of Goldshield is that price-fixing in the form of a cartel agreement, without at least some element of dishonesty in the form of “positive” deception or other illegality – that is, more than mere secrecy – was not at the material time, and is not, an offence known to our law, and, in particular, could not, and cannot, amount to conspiracy to defraud so as to amount to an extraditable offence within section 137(2)(b) or (3)(c).[42]The Government of the United States and the Serious Fraud Office maintain that, if the circumstances of the price-fixing conspiracy or cartel agreement alleged were such that when it was in being, a court could have regarded it as dishonest and prejudicial to another or others, it was capable of constituting a conspiracy to defraud, and would be now, whether or not it might also amount to infringement of competition law.[43]Mr Richard Gordon QC, for Mr Norris, and Mr David Vaughan QC, for Goldshield, submitted that the claimed extradition offence of conspiracy to price-fix or cartel agreement was not an offence known to our law before the introduction of a statutory offence of dishonest price-fixing in the 2002 Act. They submitted that, therefore, the alleged conduct, if it had occurred here, would not have constituted an offence here unless accompanied by some element of dishonesty, such as deceit, over and above the secrecy that is normally an inherent feature of price-fixing itself, an additional element that, Mr Gordon suggested, is not alleged by the United States in its criminal proceedings or evidenced in its request for extradition.[44]Mr Gordon also submitted, purportedly as an alternative – but it is really the same point – that, for the United States Government to attempt to identify the additional element of dishonesty necessary to render Mr Norris’s conduct extraditable by characterising it as part of a conspiracy to defraud will not do, because it is at least uncertain whether it would have been so regarded in English law when it allegedly took place. Such uncertainty in the law at the time, he submitted, would render Mr Norris’s extradition unfair and violate Article 7 ECHR as not clearly constituting an offence when committed.[45]Mr Vaughan went further in submitting that the common law offence of conspiracy to defraud should have as its end the commission of an act close to being an unlawful act in its own right, or, as he put it, “some proximity to an existing criminal offence”, an element, he suggested, not present here. In that respect he distinguished it from the old unlawful means conspiracy abolished by section 5(1) of the Criminal Law Act 1977, and suggested that the extradition case against Mr Norris is as an “attempt to reinvent” that species of conspiracy as a “subset of conspiracy to defraud” - one that, moreover, conflicted with the creation by the 2002 Act of the first United Kingdom statutory offence of dishonest price-fixing.[46]Mr Gordon, supported by Mr Vaughan, advanced four heavily overlapping strands of argument in support of the contention that a conspiracy to defraud in the form of Sherman Act type price-fixing was not at the material time, and is not, known to our law: a) 19th and early 20th Century case law, which he maintained, shows that anti-competitive agreements did not in themselves constitute a criminal offence at common law, even if made in the knowledge that that they will or may injure somebody; b) the introduction in the latter half of the 19th Century of statutory regulation of anti-competitive agreements policed by civil, but not criminal, law sanctions, which, he maintained, reflected the position at common law; c) the existence, he suggested, of an understanding in Parliament, (in particular in the enactment of the 2002 Act) and of the Government, the principal regulator and the major commentators, that, at common law, price-fixing absent a super-added element of fraud or dishonesty was not a criminal conspiracy to defraud; and, d) unfair retrospective criminal liability, resulting, he suggested, from lack of clarity at the material time as to whether there could be a common law conspiracy to defraud in relation to price-fixing. a). Common Law[47]Mr Gordon and Mr Vaughan submitted that our legal history shows that anti-competitive agreements, without some other ingredient such as positive deception, have never been considered candidates for the common law offence of conspiracy to defraud, even when entered into in the knowledge that they would injure someone financially. In so submitting, Mr Gordon drew principally on 19th and early 20th century decisions in civil cases. He took as a convenient summary of the effect of the cases the following words of Lord Parker of Waddington, giving the judgment of the Board in Attorney General of the Commonwealth of Australia v Adelaide Steamship Co Ltd [1913] AC 781, PC, at 797:
“…no contract was ever an offence at common law merely because it was in restraint of trade. The parties to such a contract, even if unenforceable, were always at liberty to act upon it in the manner agreed. Similarly, combinations, not amounting to contracts, in restraint of trade were never unlawful at common law. To make any such contract or combination unlawful it must amount to a criminal conspiracy, and the essence of a criminal conspiracy is a contract or combination to do something unlawful, or something lawful by unlawful means. The right of an individual to carry on his trade or business in the manner he considers best in his own interests involves the right of combining with others in a common course of action, provided such common course of action is undertaken with a single view to the interests of the combining parties and not with a view to injure others (the Mogul Steamship Case [(188) 23 QBD 598 (CA), [1892] AC 25 (HL)] …”
[48]Adopting that summary, Mr Gordon submitted that price-fixing agreements, even if secret and, therefore, on that account capable of being deceptive to others, required some additional element of dishonesty for them to be capable of constituting a criminal conspiracy to defraud. He suggested that, so definitive was the state of the common law on the subject by the early 20th century, the development of English law relating to anti-competitive agreements has since been left to Parliament.[49]In my view, the authorities to which Mr Gordon took the Court do not, individually or collectively, support that submission.[50]The first was Jones v North (1875) LR 19 Eq 426, a decision of Sir James Bacon VC as to the lawfulness of a bid-rigging agreement between four quarry owners for tenders for the supply of stone to the Birmingham Corporation. Under the agreement, one owner would not tender, and two would tender at above the price tendered by the fourth, who, if successful as he anticipated, would honour his bid by purchasing the stone required for it from the others at an agreed price. It may be, as Mr Richard Lissack QC, for the Serious Fraud Office, suggested, that the decision turned on the questionable view of the Vice-Chancellor that there was no dishonesty. Or it may be, as Mr David Perry QC, for the United States Government, submitted and Sir Jeremy Lever QC and John Pike, have suggested, “Cartel Agreements, Criminal Conspiracy and the Statutory Cartel Offence”, (2005) 26 ECLR, vol 2 – 3, p 5 that such an agreement, certainly since the second world war, would have been regarded, not only as unenforceable, but also criminal. Either way, the decision is hardly a firm basis for the broad proposition for which Mr Gordon cites it, namely that the common law has never recognised dishonest price-fixing as a common law conspiracy to defraud.[51]The second authority on which Mr Gordon relied was Mogul, cited as I have indicated with approval by Lord Parker in Adelaide Steamship. That was an unsuccessful civil claim in conspiracy against an association of ship-owners who had openly fixed freight rates with a view to securing a monopoly of the China-to-Europe tea trade, an association that the Court of Appeal, by a majority, held to be lawful. As Mr Perry and Mr Lissack pointed out, there was no complaint or finding of dishonesty or of other unlawful conduct, and the judgments of the majority in the Court and the House of Lords’ affirmation of their decision, indicate that, if there had been, the outcome would have been different; see per Bowen LJ at 614, 618 and 620, per Fry LJ at 628 and 630, and per Halsbury LC, at 35. Moreover, the majority in the Court of Appeal and the House of Lords also accepted that the purpose of the arrangement was to advance the trade interests of the members of the association rather than to harm others.[52]The third case to which Mr Gordon referred was Adelaide Steamship, in which the Privy Council held that a contractual combination by economically beleaguered coal owners in restraint of trade and unenforceable at common law was, in the circumstances, not “to the detriment of the public” within the meaning of Australian federal legislation, so as to justify a pecuniary penalty in civil proceedings under it by the Attorney General. This case is no more support for Mr Gordon’s proposition than Mogul, since, again, there was no finding of dishonesty or of intention to injure others, elements, which, if they had been present, would have led to a different decision.Lord Parker of Waddington, giving the judgment of the Board, expressly acknowledged, at 797, as I have indicated, that the combination would have been unlawful, as distinct from merely unenforceable, if it had amounted to a criminal conspiracy; and he contemplated, at 795–797, the possibility of illegality in the event of the establishment by combination of a “pernicious monopoly contrary to the public interest”.[53]The fourth case was Rawlings v General Trading Co [1921] 1 KB 635 – not a price-fixing case, but an agreement between two would-be bidders at an auction that only one of them would bid with a view to dividing the goods, if purchased, equally between them. In a suit by the one who did not bid against the other who did, the Court of Appeal, by a majority, held the agreement to be enforceable as between them. It was no part of the defendant’s pleaded case that the agreement was contrary to public policy as being in restraint of trade, an omission that deterred Atkin LJ, one of the majority, but not Scrutton LJ, the minority, from considering and expressing the view that it was. And there was no compelling evidence that the price paid was below, or significantly below, the fair value. Moreover, the Court, as a whole, did not regard the conduct as criminal, no doubt because, as Scrutton LJ indicated at 643 and 647, and Atkin LJ at 647 and 648, there was no allegation or evidence of misrepresentation or fraud on the vendor in the act of one of the two refraining from bidding, Scrutton LJ observing:
“If, of course, there is any combination to make misrepresentations express or implied with intent to deceive the seller, which are proved to have deceived the seller, the seller will presumably have his remedy, and the agreement so to deceive will be illegal and unenforceable.”
[54]Mr Gordon acknowledged that there are some other early cases supportive of the existence of a common law offence of conspiracy to defraud by fixing or manipulation of prices, but sought to distinguish them on the basis that each involved “positive” deception or other fraud, that is, something more than mere secrecy of the agreement in question. He referred to R v De Berenger (1814) 3 M & S 67 – a conspiracy to cause public mischief by the spread of bogus rumours of Napoleon’s death with a view to driving up the price of Government stock; R v Lewis (1869) Cox CC 404 – conspiracy to deceive by holding a mock auction with sham bidders; and Scott v Brown, Doering , McNab & Co [1892] 2 QB 724 – a contract artificially to inflate the price of shares in order to give them a fictitious premium on the stock market, held to be illegal as a conspiracy to commit an illegal act by deceit and fraud.[55]In my view, those cases are useful examples of what was lacking in the civil case on which Mr Gordon relied – plain dishonesty. They show that the critical point is not one of law as to the applicability or otherwise of the common law offence of conspiracy to defraud to price-fixing agreements, but one of fact or evaluation on a case by case basis as to the presence of dishonesty, as in most cases of alleged fraud.[56]While there has, as yet, been no reported price-fixing case prosecuted as one of dishonesty in our courts, it is difficult to see why any such agreement involving dishonesty or other fraud should not amount to a common law criminal conspiracy to defraud, as expressly preserved by section 5(2) of the Criminal Law Act 1977. At its broadest, such an offence consists of any conduct “dishonestly to do any act prejudicial to another” (Smith and Hogan Criminal Law: Cases and Materials, 7th ed. pp370-373 ) or any agreement between two or more persons dishonestly to prejudice or to risk prejudicing another’s right, knowing that they have no right to do so; see Welham v DPP [1961] AC 103; R v Sinclair 52 Cr App R 618, CA; Scott v Metropolitan Police Commissioner [1975] AC 819; and Wai Yu Tsang [1992] 1 AC 269, PC.[57]In Welham Lord Denning said, at 133:
“… ‘with intent to defraud’ means ‘with intent to practise a fraud’ on someone or other … If anyone may be prejudiced in any way by the fraud that is enough.”
[58]In Scott v Metropolitan Police Commissioner Viscount Dilhorne, in dismissing the notion that deceit was an essential ingredient of the offence of common law conspiracy to defraud, captured the essence of the offence in the following words, at 836B, 839C and 840F:
“In a great many and it may be the vast majority of fraud cases the fraud has been perpetrated by deceit … It does not, however, follow that that it is an exhaustive definition of what is meant by ‘defraud’. … ‘to defraud’ ordinarily means … to deprive a person dishonestly of something which is his or of something to which he is or would or might but for the perpetration of the fraud be entitled.” and a conspiracy to defraud is: “… an agreement … to deprive a person of something which is his or to which he is or would be or might be entitled and an agreement … by dishonesty to injure some proprietary right of his, suffices to constitute the offence of conspiracy to defraud.” “… an agreement … to deprive a person of something which is his or to which he is or would be or might be entitled and an agreement … by dishonesty to injure some proprietary right of his, suffices to constitute the offence of conspiracy to defraud.”
[59]In Wai Yu-Tsang v The Queen, Lord Goff, giving the judgment of the Board, at 279H-280B described the offence in much the same way, including by way of example, but not as an essential ingredient, an intention or contemplation of deceit of the potential victim:
“ … it is enough for example that, as in Reg v Allsop and that in the present case, the conspirators have dishonestly agreed to bring about a state of affairs which they realise will or may deceive the victim into so acting, or failing to act, that he will suffer economic loss or his economic interests will be put at risk. It is however important in such a case, as the Court of Appeal stressed in Reg v Allsop, to distinguish a conspirator’s intention (or immediate purpose) dishonestly to bring about such a state of affairs from his motive (or underlying purpose). The latter may be benign to the extent that he does not wish the victim or potential victim to suffer harm; but the mere fact that it is benign does not prevent the agreement from constituting a conspiracy to defraud. …”
[60]Thus, the critical constituent of the offence is - and has been since at least the mid twentieth century - dishonesty. It is interesting to note that the editors of the current edition of Archbold¸ at paragraph 17-62, expressly comment on the lack of any mention of “dishonesty” in the Welham formulation in 1961, in contrast with the later formulations of the notion of intent to defraud in Sinclair and in Wai Yu-Tsang, concluding that their Lordships must have “considered it beyond argument that intentionally to take the risk of prejudicing another’s right, knowing that there is no right to do so, was dishonest”.[61]In seeking to advance his case to the contrary, Mr Gordon was driven to argue that, when considering culpability of price-fixers, there are three levels.[62]The first is overt price-fixing – not very common, since if it is overt, it largely destroys its purpose as a means of fixing prices to the advantage of the cartel members to the disadvantage of customers, save where the members are in a monopoly position and in respect of which the law provides other protections.[63]The second is what Mr Gordon called “simple price-fixing”, or what Mr Vaughan spoke of as “a typical cartel”, namely one involving secret price-fixing, which, by driving out competition, prejudices consumers and/or competitors. Their submissions are predicated on the basis that secrecy itself, normally in failure to register the arrangement, without some act of positive deception, is not dishonest. Mr Vaughan articulated his and Mr Gordon’s approach by saying that the court:
“ cannot simply recycle the basic elements of a cartel – secrecy, price-fixing, the fact that loss will be caused to consumers (for which they have a right to claim damages etc.) – to create dishonesty. The dishonesty required in law is far more than the natural characteristics of a cartel.”
He pointed to the different ways in which the United States and European Countries had dealt with cartels where they gave rise to controlling oligopolies, the United States expressly criminalising them in 1890 by the Sherman Act and the European Countries, after a period of toleration, subjecting them to a civil law/regulatory system requiring registration and, in default, civil law remedies.[64]However, secrecy, which almost always must have as its object misleading customers into believing that they are paying a market or near market price, instead of one rigged by suppliers in the market, is and was at the material time clearly capable of being regarded by an English jury as dishonest and, on that account, a criminal conspiracy to defraud. The test of dishonesty for a jury, is the well established and well-known test articulated by Lord Lane in R v Ghosh [1982] QB 1053), at 1064, namely whether a jury would consider the conduct in question as dishonest “according to the ordinary standards of reasonable and honest people”; and, if so, whether the proposed defendant “must have realised that what he was doing was by those standards dishonest”. The fact that such conduct has not been put to juries as a species of dishonesty over the last 150 years, with or without the benefit of the Ghosh definition, is no reason for distinguishing it in this context from the many other forms of dishonest conduct for which the offence is apt.[65]Then, there is secret price-fixing, with some additional element of dishonesty over and above the secretiveness of the arrangement, which Mr Gordon and Mr Vaughan concede may possibly amount to a criminal offence of conspiracy to defraud, but which they suggested is not alleged against Mr Norris. Without such additional element, they maintained, it could not be left to an English jury to “legislate retrospectively” on a Ghosh basis to make unlawful now what was not unlawful at the time of the conduct alleged against Mr Norris.[66]The difference in law between deceiving potential customers by secrecy and some other form of dishonesty is difficult to discern. And, as a sharp distinction of fact, rather than one of degree and evaluation depending on the circumstances, a jury would be hard-put to see much sense in it. The only support for any such distinction that Mr Gordon suggested was that, for some 150 years, those responsible for the policing the integrity of anti-competitive agreements have not had occasion or felt the need to deploy the offence of conspiracy to defraud as one of their forensic weapons. Today, and for some decades now, the globalisation and sophistication of commerce has brought into being mighty and wide ranging commercial interests engendering an increasingly urgent public imperative to protect consumers from abuse. What better than that old – not yet rusty, and still trusty - weapon, the common law offence of conspiracy to defraud? It can strike effectively at the dishonesty of price-fixing, whatever form a jury might perceive it to take. If that is answer enough, there is no other basis for Mr Gordon seeking to remove secrecy from a jury, whether on its own or with other matters, as at least a potential and sufficient ingredient of dishonesty going to make up the offence.[67]Such a conclusion is persuasively supported by Sir Jeremy Lever QC and John Pike in an influential discussion in a paper in 2005, “Cartel Agreements, Criminal Conspiracy and the Statutory ‘Cartel Offence” (2005) 26 ECLR vol 2, pp 70-77 & vol 3. pp 164-172:
“There should be little, if any difficulty in proving dishonesty where the cartel agreement involved the taking of active steps to mislead counterparties into a belief that the parties to the agreement were engaged in normal competition with each other for the counterparties’ business and, when the agreement was made, the parties knew that such steps would be taken. Examples of such active steps are the quotation of cover prices and the making of representations or the giving of warranties that offers are being made competitively. Equally, dishonesty may be clearly negatived, e.g. where a person requesting bids is informed by potential bidders, before they bid, that they have entered into the relevant arrangements with regard to the making of the bids. But there is a middle ground where the position will be less clear. Whereas, as has already been observed, until about the middle of the 20th Century cartelisation was quite normal in the United Kingdom, it is, in general, no longer normal. On the contrary, cartelisation is now generally unlawful, even though neither Article 81 of the EC Treaty nor Chapter I of the UK Competition Act 1998, which contain the relevant provisions of competition law, itself criminalises even ‘hard-core’ anti-competitive agreements. It follows that in many situations today third parties who deal with undertakings that are in fact parties to cartel agreements will proceed on the assumption that they are dealing with undertakings that are lawfully engaged in normal competition with each other; and the cartelists will know that that is so and will, in effect act in a dishonest and therefore criminal manner, if the existence of the cartel is kept secret. They will then be dishonestly taking advantage of third parties’ mistaken assumption that they are dealing with undertakings that are engaged in lawful competition with each other.”
The greater the efforts of the parties to a cartel to keep it secret, the more readily a jury might infer: • that the intention of the cartelists was to preserve an illusion that they were engaged in normal and bona fide competition with each other (cf the illusion of a normal and bona fide auction in R v Lewis) • that the cartelists had an actual and dishonest appreciation that loss or risk of possible loss by counterparties would, or was likely to, follow from the cartelists’ conduct (see Wai Yu-Tsang v R [1992] 1 AC 269 (PC).” • that the intention of the cartelists was to preserve an illusion that they were engaged in normal and bona fide competition with each other (cf the illusion of a normal and bona fide auction in R v Lewis) • that the cartelists had an actual and dishonest appreciation that loss or risk of possible loss by counterparties would, or was likely to, follow from the cartelists’ conduct (see Wai Yu-Tsang v R [1992] 1 AC 269 (PC).”[68]I respectfully adopt that reasoning as an accurate statement of the reach of the common law offence of conspiracy to defraud over dishonest price-fixing at the material time and as the law stands today, namely an agreement dishonestly to price-fix so as to cause prejudice to others. It is not necessary to assume for the purpose of testing that proposition that the conduct in question is price-fixing made secret only because it is was or is not registered under requirements of our statutory competition law at the material time. Price-fixing, secret for want of registration, is not what is charged against Mr Norris in the United States or alleged by their Government in the extradition proceedings against him. Rather, the conduct alleged against him is Sherman Act price-fixing, namely a “combination … or conspiracy” by traders in restraint of trade”, with the added ingredient(s) of an intention financially to prejudice the conspirators’ customers by dishonestly deceiving them into paying higher prices than they otherwise would have done for the conspirators’ products, the vehicle for the deceit being the cloak of secrecy under which they agreed and sought to maintain to conceal the agreement. In my view, and subject to Mr Gordon’s other three heavily overlapping submissions, such conduct is capable of being regarded by ordinary people as dishonest, and of being realised to be such by its perpetrators.[69]Moreover, it is plain from the summary I have given in paragraphs 6 to 15 of this judgment that the allegations on which the United States Government relies in seeking the extradition of Mr Norris go well beyond matters such as non-registration or other simple secrecy in price-fixing.[70]In the circumstances, I have given perhaps too much attention to Mr Gordon’s and Mr Vaughan’s submission that, if the only element of dishonesty in a price-fixing agreement intended to cause prejudice to others is secrecy, it was and is not capable of constituting a common law conspiracy to defraud. But, however inapposite to the facts of the case, it is important to confront the issue in the interests of clarity of the law in this important field of jurisprudence affecting international obligations going to the liberty of individuals. (b). Introduction in the second half of the 19th Century of legislative regulation of anti-competitive agreements[71]Mr Gordon also relied on the development over the last 60 years of statutory civil law controls on price-fixing and the introduction in the 2002 Act of an offence of dishonest price-fixing. His argument in this respect was barely distinguishable from his main submission as to the lack of reach of the common law to such conduct. He contended that this body of legislation “militated” against the existence of any criminal offence for anti-competitive conduct such as price-fixing save for conduct with some “added” element of dishonesty in the form of positive acts of deceit or other illegality or that introduced by the 2002 Act. Mr Vaughan made the same submission in blunter terms, namely that the legislation operated as a statutory bar, since it constituted a clear expression of parliamentary will, that reliance on conspiracy offences, including conspiracy to defraud, to render restrictive trade practices criminal should be precluded.[72]Mr Perry and Mr Lissack, on the other hand, maintained that the creation of statutory civil remedies or of a statutory criminal offence such as a dishonest cartel arrangement by section 188 of the 2002 Act, cannot, otherwise than expressly, inform the extent, or exclude the application, of an existing common law offence to conduct of like or similar effect.[73]For practical purposes, the starting point of legislative intervention in our competition law was the Restrictive Trade Practices Act 1956 (“the 1956 Act”). Part I required public disclosure, through registration of specified anti-competitive (including price-fixing) agreements, whether or not dishonest. It imposed criminal sanctions of up to three months imprisonment or a fine of up to £100 for failure to comply with such registration requirements. And it provided machinery for rendering such agreements civilly unenforceable. Section 24, in Part II, of the Act, prohibited the making or implementation of any agreement for resale price maintenance, provided for enforcement of the prohibition by civil proceedings on behalf of the Crown and, in section 24(6), expressly outlawed any criminal proceedings for contravention of that prohibition: “No criminal proceedings shall lie against any person on the ground that he has committed, or aided, abetted, counselled or procured the commission of, or conspired or attempted to commit, or incited others to commit, any contravention of this section.” [my emphasis][74]The intent and effect of the 1956 Act were memorably described in Wilberforce, Campbell and Elles, Restrictive Trade Practices and Monopolies, (2nd ed., 1966), at pp. 148-149 as to keep “[t]he ‘odour of criminality’ … away from the world of restrictive practices in trade”. However, the learned editors did not suggest that the bar on criminal proceedings for contravention of the prohibition on making or implementing unregistered resale price maintenance agreements excluded common law criminal charges of fraud where dishonest price-fixing was alleged.[75]The second statute was the Restrictive Trade Practices Act 1976 (“the 1976 Act”), which repealed and consolidated the 1956 Act and other cognate legislation. It continued the 1956 “registration” approach of requiring particulars for entry on a public register of certain forms of restrictive agreements, including price-fixing agreements. It hardened the regime of civil unenforceability in the 1956 Act, by providing, by section 35(1)(a), that failure to furnish particulars of restrictive provisions rendered them void and civilly unlawful, and by section 35(1)(b) that any attempt to enforce or give effect to them would be “unlawful”. And section 35(2), like its statutory predecessor, section 24(6) of the 1956 Act, contained an express exclusion of criminal proceedings for any contravention, though it is in different terms, namely that no criminal proceedings should lie for failure against any person “on account of a contravention” of subsection 1(b). Section 35(3) made provision for the court, on application by the Director General of Fair Trading, to restrain such contravention.[76]A significant difference between the 1956 and 1976 regimes was that the 1976 Act, in section 38, made it a criminal offence not to comply with a notice to furnish particulars of a restrictive agreement required to be registered under the Act, or to furnish false or misleading particulars about any such agreement, punishable on summary conviction with up to three months’ imprisonment and/or a fine of up to £100 for failure to comply with the registration requirements.[77]In Director General of Fair Trading v Pioneer Concrete [1995] 1 AC 456, Lord Nolan (with whom Lord Jauncey, Lord Templeman and Lord Slynn agreed) explained, at 467, the effect of the new statutory scheme at 467: “…the Act calls for the registration of agreements providing for restrictive trade practices, and enables the court, on the application of the Director, to declare whether the restrictions are contrary to the public interest. A failure to register the agreement in the time allowed by section 24 renders the agreement void in respect of all restrictions accepted and makes it unlawful for the parties to the agreement to give effect to those restrictions: section 35(1). This unlawful behaviour may give rise to civil proceedings by a person affected, but is not a criminal offence: section 35(2). The only remedy available to the Director is to seek an order of the court restraining the parties from giving effect to the agreement or other agreements which contravene section 35(1) and to bring proceedings for contempt of court if that order is disobeyed: section 35(3).” [my emphasis][78]Mr Gordon and Mr Vaughan accepted, as they did in relation to section 24(6) of the 1956 Act, that section 35(2) of the 1976 Act did not bar criminal proceedings for conspiracy to defraud where, on the facts, some element of dishonesty in addition to maintaining the secrecy of the unlawful agreement might have been alleged. However, they maintained that it was implicit in the system of registration under both Acts that they were aimed at policing by civil, not criminal, law procedures secret price-fixing agreements. Something more than secrecy was, therefore, required to render a price-fixing agreement vulnerable to criminal proceedings for fraud. Mr Vaughan added that such a “for the avoidance of doubt” provision was unnecessary unless it was intended to have a wider meaning, namely to ensure that the common law of conspiracy to defraud should not be deployed to criminalise wrongs intended to be purely civil.[79]Mr Perry and Mr Lissack, however, submitted that neither of the two Acts was predicated on a prohibition of prosecutions for common law conspiracy to defraud in price-fixing cases. The Acts did not decriminalise anything that was previously criminal; they merely made clear that they did not create any criminal offence of implementing or seeking to implement an unregistered agreement.[80]In my view, the submissions of Mr Perry and Mr Lissack are to be preferred. The two Acts did not and were not intended to impose any restriction or limitation on the availability of a prosecution for the common law offence of conspiracy to defraud or otherwise, simply because one feature of the conduct that might be alleged to constitute it was the implementation of an unregistered agreement or other civil statutory contravention. All that Parliament was doing was making plain that the legislation itself did not create such a criminal offence, as Lord Nolan appears to have accepted in the passage from his speech in Director General of Fair Trading v Pioneer Concrete.[81]This is not, therefore, a case of the court introducing by a side-wind a crime that Parliament had declined to recognise, as in R v Zemmel (1985) 81 Cr App R 279, where the court rejected an attempt to revive the offence of conspiracy to do a lawful act by unlawful means. Nor is it a case of an impermissible attempt to charge conduct with a common law offence when it lacks an essential ingredient for such an offence, as in the public nuisance case of R v Rimmington [2006] 1 AC 459, see per Lord Bingham of Cornhill, at para 37. By contrast, it is a resort to a broad common law offence of fraud, the centre-piece of which is dishonesty capable of manifestation in all sorts of ways. Moreover, its usefulness has been expressly recognised by Parliament in its express preservation of it by section 5(2) of the Criminal Law Act 1977, and in its confirmation of it by section 12(1) of the Criminal Justice Act 1987, declaring that it is not precluded in circumstances where the agreed course of conduct would necessarily amount to or involve the commission of an offence.[82]The 1976 Act regime On 1st March 2001 price-fixing agreements became subject to the prohibition in Chapter 1 of the Competition Act 1998 unless exempted under the provisions of the Act, which, while providing for a number of criminal offence in relation to the furnishing of particulars, did not criminalise the breach of the prohibition itself. continued until the coming into force in June 2003 of Part 6 of the 2002 Act, which, in section 188, introduced a statutory criminal “cartel offence”, namely of an agreement by individuals (not bodies corporate) dishonestly to make or implement, or cause to be made or implemented cartel arrangements, including those for price-fixing and bid-rigging, punishable on indictment with imprisonment up to five years or a fine or both. This is, in effect, a statutory criminal conspiracy to defraud, which, whilst corresponding to a common law conspiracy to defraud, is highly specific as to subject matter, as to who could be prosecuted and as to penalty, and in other respects. See Lever & Pike, op cit, pp 29- 31[83]Mr Gordon’s submission with regard to section 188 of the 2002 Act, so far as I understand it, amounted to a suggestion that it demonstrates that conduct of the nature for which it provided was not previously capable of being charged as a crime, whether of conspiracy to defraud or otherwise, or that it should be construed as precluding recourse to any other available criminal charge. He drew attention to the words in the long title of the Act, “An Act … to create an offence for those entering into certain anti-competitive agreements …” and to special provisions in the Act governing prosecution of the new offence, including provisions for giving immunity from prosecution, not applicable to prosecutions for common law conspiracy to defraud. Mr Vaughan put much the same argument, but in a different way. He submitted that to contemplate a common law charge of conspiracy to defraud against Mr Norris in respect of conduct before the 2002 Act came into force impermissibly anticipated the Act in that hitherto there had been uncertainty as to the application of criminal law to price-fixing. Both were, therefore, essentially variants of their core case that the common law offence of conspiracy to defraud has never been capable of application to price-fixing, a case that, for the reasons I have given, I would reject.[84]Mr Perry and Mr Lissack, by contrast, submitted that the introduction by the 2002 Act of the statutory cartel offence cannot exclude from prosecution for common law conspiracy to defraud conduct that would be caught by the Act since it came into force and, more to the point, cannot bear on the availability of that common law sanction before it came into force.[85]Although previous competition law did not of itself criminalise cartel activity, it does not follow that it was not previously chargeable as conspiracy to defraud where circumstances might have justified and required it. The fact that it took until the turn of the century, with the implementation of the 2002 Act, to introduce a statutory offence of dishonest price-fixing, but with a much narrower reach than and subject to provisions not governing a common law conspiracy to defraud, cannot, as a matter of law, negative its capacity for use as a weapon against similar conduct before the Act, if dishonest. Nor does the prospect of there coming into being in 2003 parallel and partly overlapping common law and statutory offences for similar conduct justify singling out this form of dishonest behaviour from the many others to which, if the evidence justifies it, conspiracy to defraud is the appropriate charge. The common law is replete with examples of conduct that may be chargeable under statute or at common law, not least conspiracies, various jointly committed offences of dishonesty, including theft, false accounting, fraudulent trading and tax evasion; and see e.g. the citation in R v Barnett [1951] 2 KB 425, at 427, of a passage from the judgment of Williams J in Eastern Archipelago Co v The Queen (1853) 2 El & BL 856, at 879. This is a state of affairs that the Interpretation Act 1998, in section 18, not only contemplates, but for which it makes firm provision:
“where an act or omission constitutes an offence under two or more Acts, or both under an Act and at common law, the offender shall, unless the contrary intention appears, be liable to be prosecuted under either or any of those Acts or at common law, but shall not be liable to be punished more than once for the same offence.”
[86]In addition, Mr Gordon’s and Mr Vaughan’s submissions miss three important points. First, if, on the facts of any particular case, price-fixing is dishonest, that is, accompanied by secrecy and/or other forms of dishonesty, conspiracy to do it is the fraud that fills the gap. What is fraudulent, what is dishonest, are matters of fact and judgment for a jury or for the court in summary cases, judged by reference to the standards of the time of the conduct in question and the defendant’s state of mind.[87]Secondly, as I have already stated, this is not the creation or re-creation of a non-existing offence. It is the application of a long established common law offence, the ambit of which was not cut down, but expressly preserved by section 5 of the 1977 Act, to continue to provide for the prosecution of agreements to commit a wide variety of acts of dishonesty the agreed purpose of which was to prejudice others.[88]Thirdly, there is no conflict between the operation of the 2002 Act and the application, where the factual circumstances justify it, of the common law offence of conspiracy to defraud to dishonest price-fixing. This is not, as a generality or on the facts of this case, the criminalisation of “mere participation in a cartel without more”, as Mr Vaughan suggested, praying in aid the exclusionary cartel of the Mogul type, that is, a cartel, on the findings of the Court of Appeal and House of Lords, not involving dishonesty or an intention to harm others. Nor, given the restricted range of the 2002 Act, can it be seen as a “decision of Parliament” that fraudulent cartels outside the Act’s remit should not be criminalised or treated as criminal. Whatever the understanding of Parliament as to the applicability or otherwise of the common law offence of conspiracy to defraud to dishonest price-fixing when enacting the 2002 Act, such understanding could not, certainly in the absence of some material conflict between the new Act and the common law that would make the Act unworkable, be determinative of the existence and extent of the common law offence before or after the Act came into force. See Birmingham Corporation v West Midlands Baptist (Trust) Association [1970] AC 874, per Lord Reid at 898, and Lord Donovan at 911; and see the analysis of Brooke LJ in R (W) v Lambeth LBC [2002] EWCA Civ 613, at paras 36-41.[89]Moreover, where, on the facts of a case, there is a choice between two offences, one statutory and one at common law, the question for the court may be more subtle, not so much as one of conflict (clearly present in the West Baptist case), but as to the fairness or otherwise of proceeding on one offence rather than the other. In R v Rimmington [2006] 1 AC 459, which concerned the overlap between the long-standing common law offence of public nuisance and a variety of statutory offences covering the same conduct, it was held by Lord Bingham of Cornhill and Lord Rodgers of Earlsferry, at paragraphs 30 and 52-54 respectively, and with the agreement of their Lordships, that the fact that Parliament creates a statutory offence that covers in whole or in part a common law offence, without expressly abolishing the latter, does not extinguish the common law offence. Rather, it places limitations on its use where it could be seen as an improper means of circumventing constraints or limitations in use of the statutory offence amounting to abuse of process.[90]However, such a consideration – one of improper resort to a common law remedy where there is also an adequate statutory remedy – does not assist in the circumstances of this case for two reasons. First, the conduct alleged against Mr Norris ante-dated the 2002 Act, and, therefore, the tightly defined statutory offence and the various constraints and limitations and the availability of “the leniency regime” that it provides has no relevance to the ambit of the common law offence to defraud in this context before then. And, secondly, the court is not, in the context of these extradition proceedings, concerned with improper resort by an English prosecutor to a common law remedy, but simply with whether conduct to be prosecuted as a statutory offence in the United States under its constraints was capable of constituting an offence under our law.[91]In short, neither as a matter of law nor logic can the state of the common law in this context be determined before or since the coming into force of the 2002 Act by reference to its introduction of a closely defined and circumscribed offence of dishonest price-fixing. (c). A common understanding of the position at common law by Parliament, the Government, the principal regulator and the major commentators.[92]This submission of Mr Gordon is a further variant on the same theme. He relied upon many statements in public documents and by ministers in and outside Parliament and legal commentators to the effect that the 2002 Act introduced “a new criminal offence”. All this he submitted, while not determinative, is a significant aid to the court in interpreting and applying the common law.[93]However, as Mr Perry and Mr Lissack pointed out, recourse could only be made to Pepper v Hart ([1993] AC 593)materials if the 2002 Act were ambiguous, obscure or absurd in any relevant respect and then only insofar as it was relevant to the resolution of such ambiguity to identify the mischief at which the Act was directed; see R (Jackson & Ors)v Attorney General [2006] 1 AC 262, per Lord Steyn at paras 97 and 98. If, as is my view, the words and thrust of the 2002 Act, and for that matter the 1956 and 1976 Acts, are clear, there is no basis for recourse to Pepper v Hart, certainly given the strict constraints since imposed by the House of Lords on the admission of such materials; see Robinson v Secretary of State for Northern Ireland & Ors [2002] UKHL 32, per Lord Hoffman at para 40, and R (Jackson & Ors) [2005] EWCA Civ 126, para 97.[94]The materials upon which Mr Gordon sought to rely, could at best, only be of use to identify the mischief at which the legislation, section 188 of the 2002 Act in particular, was directed, not on the issue here, as to the state of the common law before, or for that matter, since its enactment. For the same reason, I can see no basis for the parliamentary and other assumptions made as to the potential or lack of potential of the common law to police conduct for which the 2002 Act only partly provided.

(d) Unfair retrospective criminal liability

[95]This is a yet further variation by Mr Gordon on the same theme. He submitted that, as the double criminality rule requires that the conduct in respect of which extradition is sought must have been an offence here when the conduct took place, it is important that it was clearly so at that time, as required by Article 7 ECHR and our common law, citing well-established principles summarised by Judge LJ, as he then was, in R v Misra & Srivastava [2005] Crim App R 328, at paras 29 – 34, and by Lord Bingham as “two guiding principles” in Rimmington, at para 33:
“… no one should be punished under a law unless it is sufficiently clear and certain to enable him to know what conduct is forbidden before he does it; and no one should be punished for any act which was not clearly and ascertainably punishable when the act was done.”
Lord Bingham added, at para 36, consistently with observations of the European Commission of Human Rights in X Ltd and Y v United Kingdom (1982) 2 DR 77, at para 9 and of the European Court in SW and CR v United Kingdom [1995] 21 EHRR 363, ECtHR:
“If the ambit of a common law offence is to be enlarged, it ‘must be done step by step on a case by case basis and not with one large leap’: R v Clark (Mark) [2003] 2 Cr App R 363, para 13.”
[96]Mr Gordon’s own acceptable gloss on those principles for the purpose of this submission was that a criminal offence must be clearly defined, adequately accessible in a given case and not so vague as to produce arbitrary results. He suggested, adopting the approach of Lord Diplock in Fothergill v Monarch Airlines Ltd [1981] AC 251, at 279, that neither Mr Norris nor any competent lawyer of his could have ascertained by reference to publicly accessible and identifiable sources at the time that merely secret price-fixing was a criminal offence in English law before 2003. He cited in support of that suggestion comments in Smith & Hogan, Criminal Law, 11th ed, at 382 the Law Commission in its Report No 276 on Fraud (July 2002) and the Home Office in its paper “Fraud Law Reform: Consultation on Proposals for Legislation” (May 2004) as to the potentially unfair uncertainty of reach of the common law offence of conspiracy to defraud. And he submitted that, in the result, the recognition by the courts of a conspiracy to defraud by anti-competitive behaviour, distinguishable only from non-criminal anti-competitive behaviour by reference to the vague notion of dishonesty would be too big an incremental step, and, as such, would breach the principles of clarity and ascertainability required by Article 7 and the common law. He referred the Court, by way of example to SW & CR v United Kingdom, in which the Strasbourg Court approved the House of Lords’ decision to remove marital immunity for rape as a natural and reasonably foreseeable culmination of a line of English case law in that direction, and to Hashman & Harrup v UK (1999) 30 EHRR 241, at [38], where the Court held, at paras 38-40, that conduct simply characterised as “wrong” as contra bonos mores (the blowing of a hunting horn and hallooing to disrupt a hunt) was insufficiently specific to amount to conduct “prescribed by law” so as to justify restriction by way of a binding-over order under Article 10(2) on the right to freedom of expression given by that Article.[97]Mr Perry and Mr Lissack’s reply to those submissions was that the common law offence of conspiracy to defraud has long contained the clarity and precision required by the Convention and the common law, namely proof that two or more conspirators intended dishonestly to defraud another or others, as explained in Welham, Scott and Wai Yu-Tsang. They maintained, in particular, that its critical ingredient of dishonesty, given the Ghosh test, should create no difficulty for an individual in regulating his behaviour, in contrast to the unspecified legal nature of the conduct under consideration in Hashman & Harrup. They also referred to the high Strasbourg threshold before a domestic law would be regarded as so uncertain as to be incompatible with Article 7 ECHR; see Handyside v United Kingdom (1976) 1 EHRR 737; Sunday Times v United Kingdom (1979) 2 EHRR 245; Kokkinakis v Greece (1993) 17 EHRR 397; and SW and CR v United Kingdom, all considered by the Court of Appeal in R Misra and Srivastava [2005] 1 Cr App R 21 (common law offence of gross negligence manslaughter) and by the House of Lords in R v Goldstein and Rimmington [2006] 1 AC 459 (common law offence of public nuisance).[98]I agree with the submissions of Mr Perry and Mr Lissack. This is not a case of broadening the scope of a highly specific common law offence. Whether the Law Commission or academics like it or not, the broad umbrella offence of conspiracy to defraud is and has been for a long time part of our law. The same goes for the broad and variously factually applicable element of dishonesty, which is the heart of that offence, one of conspiracy to defraud another in the Welham and Wai Yu-Tsang senses, namely an agreed intent to practise a fraud on another, an offence, as I have said, expressly preserved by section 5(2) of the Criminal Law Act 1977, notwithstanding the new statutory offence of conspiracy to commit an offence that it created by section 1(1). No change to the offence, whether of principle or of detail is involved in allowing for its application to a conspiracy to commit a species of dishonest conduct, whatever its form, that a jury could view as dishonest and potentially damaging to another. On the contrary, the distinction that Mr Gordon allows as inherent in his submission, between dishonesty in secretiveness of a conspiracy and some other and more positive or extreme form of dishonesty that could render the same conduct conspiracy to defraud, is, in my view, not only illogical, but would be inexplicable to a jury in its application of the Ghosh test. Presumably, they would have to be told that there are at least two layers of dishonesty, one that will not do for conspiracy to defraud, and another and more serious kind that will. In short, it would generate uncertainty where, under the existing law, there is none. Issue 1(2) the double criminality issue - whether, if price-fixing is capable of constituting the English offence of conspiracy to defraud, of which dishonesty is an essential ingredient, the absence of such ingredient in the United States offence of price-fixing prevents the alleged conduct of Mr Norris from being an extradition offence within section 137[99]My description of this issue as the “double criminality issue” test begs the question because, as will appear, the jurisprudence bearing on the matter depends on what extradition statute was under consideration, namely as to whether the comparison was between an offence abroad and an offence here, or between conduct abroad and an offence here; see Government of the USA v McCaffety [1984] 1 WLR 867, per Lord Diplock at 869F-G and 873A-B.[100]Mr Norris’s case is that if price-fixing was at the material time capable of constituting the English offence of conspiracy to defraud, an essential ingredient of which is dishonesty, nevertheless, it still could not meet the so-called section 137 requirement of double criminality because the United States offence of price-fixing does not require proof of dishonesty, and dishonesty is not charged in the United States indictment. In short, they maintain that section 137 requires a comparison and correspondence of offences.[101]Central to Mr Gordon’s submissions in support of that case was the proposition that Sherman Act price-fixing, “a mere agreement to enter into a cartel”, lacks the additional element of dishonesty necessary to match it with the English common law offence of conspiracy to defraud, namely an intention to deprive someone dishonestly of something to which they would otherwise be entitled. He relied on Government of Canada v Aronson [1990] 1 AC 579, in which the Canadian Government were denied extradition in this country under “the relevant offence” test of the 1967 Act, under which, on facts alleged, the individual in question could have been convicted of the Canadian charge but not of any offence in this country.[102]The case of the United States Government, the Secretary of State and the Serious Fraud Office is that the comparison and correspondence are with the conduct constituting the alleged offence abroad, not the legal ingredients of the offence charged there, with the offence that it would have constituted here if that conduct had occurred here. Accordingly, they maintain that if, as they contend, the conduct alleged against Mr Norris discloses dishonesty, it does not matter that it is not a necessary ingredient of the United States offence of price-fixing. Thus, Mr Perry, Mr Khawar Qureshi QC, for the Secretary of State, and Mr Lissack supported the District Judge’s decision (see paragraph 39 above) that the extradition request related to extradition offences as defined in the 2003 Act, namely that the conduct relied upon by the United States Government alleged to constitute the charges in the United States matched in all its ingredients the English common law offence of conspiracy to defraud, whether or not those were all necessary for proof of the Sherman Act charge of price-fixing. And they maintained that the approach of the House of Lords in Aronson had no application to “the conduct test” in the 1989 and 2003 Acts, as Rose LJ and Hooper J, in the Divisional Court in R v SSHD, ex p Hill, [1999] QB 886, held in relation to the 1989 Act and anticipated in relation to the 2003 Act. In short, they submitted that the Secretary of State was entitled to include in the authority to proceed any offences known to this country disclosed by the conduct in the documents accompanying the request.[103]Under the 1870 Act, an English magistrate had the function of considering for himself the sufficiency of the evidence adduced; he was required to consider whether that evidence reached the standard that would have been necessary to justify committal for trial in England. The Act, therefore, focused on the conduct of the person whose extradition was requested, as evidenced by the requesting state.[104]Section 10 of the Act provided: “In the case of a fugitive criminal accused of an extradition crime, if the foreign warrant authorising the arrest of such criminal is duly authenticated, and such evidence is produced as (subject to the provisions of this Act) would, according to the law of England, justify the committal for trial of the prisoner if the crime of which he is accused had been committed in England, the police magistrate shall commit him to prison, but otherwise shall order him to be discharged.” [my emphasis][105]In re Nielsen [1984] 1 AC 606, the House of Lords held that there was in general no need in an 1870 Act case to hear evidence on the question whether the crime of which the fugitive was accused in the requesting state was “substantially similar” to the corresponding English offence identified by the Secretary of State. The statute enjoined the magistrate to consider the evidence produced and decide “whether such evidence would, according to the law of England, justify the committal for trial of the accused for an offence that is described in the 1870 list …”. On that question, he had no justification “to inquire into or receive evidence of the substantive criminal law of the foreign state in which the conduct was in fact committed”; see per Lord Diplock at 614H-615E and at 624E-625A, including the following passage:
“The jurisdiction of the magistrate is derived exclusively from the statute. It arises when a person who is accused of conduct in a foreign state, which if he had committed in England would be one described in the 1870 list …”
See also to like effect, McCaffety per Lord Diplock, at 873A-B.[106]The structure of the material provisions of the 1967 Act, which concerned the surrender of fugitives within the Empire, and later the Commonwealth as distinct from other states, was quite different. A fugitive could be surrendered only for a “relevant offence”. In the case of offences against the law of a designated Commonwealth country, section 3(1)(a) and (c) identified a relevant offence as one described in Schedule 1 to the Act and where the “act or omission constituting the offence, or the equivalent act or omission, would constitute an offence against the law of the United Kingdom”.[107]Mr Gordon suggested that that formulation had echoes in the 2003 Act. He maintained that the ruling of the majority in the House of Lords in Aronson, giving precedence in a 1967 Act case to the essentials of the overseas offence charged over the conduct alleged to constitute it and a corresponding English offence, should guide the Court in relation to the double criminality rule as formulated in section 137 of the 2003 Act.[108]However, the 1989 Act, albeit, in large part, a consolidating statute, reverted in the plainest way to the 1870 Act focus on overseas conduct capable of amounting to an offence in this country as it had been interpreted in Nielson and McCaffery, as distinct from the overseas offence. The Green Paper, which preceded the 1989 Act (Cmnd 9421), had recommended that “[t]he double criminality rule contained in the 1870 Act, as it has been interpreted by the courts should be reproduced in the new legislation”. Section 2 of that Act provided that a person could be extradited to a foreign state who (inter alia) “is accused in that state of the commission of an extradition crime” (s 1(1)). “Extradition crime” is defined in s 2(1) (so far as material for present purposes) as:
“conduct in the territory of a foreign state … which, if it occurred in the United Kingdom, would constitute an offence punishable with imprisonment for a term of twelve months, or any greater punishment, and which, however described in the law of the foreign … country … is so punishable under that law.”
[109]Thus, in the 1989 Act, the “extradition crime” is the conduct of which the person to be extradited is accused, not the conduct constituting the offence of which he is accused, leading the Divisional Court in R v Secretary of State for the Home Department ex p Hill [1999] QB 886, (Rose LJ and Hooper J, as he then was) to conclude that the Nielsen, rather than the Aronson, approach, applied to the 1989 Act; see in particular per Hooper J at 1030A-C.[110]The nub of Mr Gordon’s argument, when coming to the end of the legislative trail with section 137 of the 2003 Act is that it differs materially from the 1870 and the 1989 Acts, and is closer to the structure of 1967 Act, thus requiring adoption of the Aronson approach of requiring equivalence of the overseas offence with the English offence rather than of the overseas conduct with an English offence.[111]In order to illustrate and adequately explain that submission, and for convenience of understanding, I repeat here, so far as material, section 137(1) and (2):
“(1) This section applies to conduct of a person if – (a) he is accused in a category 2 territory of the commission of an offence constituted by the conduct, or … (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).” (a) he is accused in a category 2 territory of the commission of an offence constituted by the conduct, or … (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).”
[112]Mr Gordon suggested that two features of that formulation are materially different from those in the 1870 and 1989 Acts. First, there is no reference to the “evidence” produced by the requesting state, as there was in the 1870 Act. Secondly, on his reading of the provision, the conduct constituting an extradition offence is not simply the conduct of which a person is “accused” in the foreign state, as in the 1989 Act, but the conduct which “constitutes” the offence of which he is there accused.[113]Mr Gordon submitted that, therefore, and for the following reasons, the 2003 Act should be read as requiring that the conduct which the court must consider (to see whether it constitutes an English offence) is not simply the conduct alleged but that part of it which constitutes the offence alleged – i.e. the essential ingredients of the overseas offence alleged. He maintained that at the very least there is ambiguity, which in the light of the approach of the majority in Aronson, should favour Mr Norris.[114]Mr Gordon added that section 137 of the 2003 Act could have been rendered simpler by omitting sub-section (1), which refers to the overseas “offence constituted by the conduct”, and defining “extradition offence” as in section 2(1) the 1989 Act, which refers to overseas “conduct … which … would constitute” an offence here. The different formula, he submitted, mirrors the formula in section 3(1)(c) and (a) of the 1967 Act, “the act or omission constituting the offence” “fall[ing] within any of the descriptions set out in Schedule 1 to this Act”. However, in so submitting, Mr Gordon overlooked the fact that, in section 3(1) of the 1967 Act, the “offence” in question is the scheduled overseas offence of which the subject of an extradition was “accused”. In the 2003 Act, the “offence” in question is an offence here.[115]Mr Gordon also drew attention to the novelty of the 2003 Act scheme, in relation to designated territories, in not requiring extraditing states to show a prima facie case, the rationale being that designation is based on an assumption that they will make requests only after appropriate judicial scrutiny resulting in the formulation of the overseas charge(s). Here, such scrutiny has taken the form of an investigation and resultant presentment of an indictment by the federal grand jury of a price-fixing charge not alleging or requiring proof of dishonesty. Thus, he submitted, what falls for consideration in the extradition proceedings is conduct falling short of dishonesty. He added that the only suggestion, not evidence, of dishonesty, is that of Ms McClain in her affidavit that, “in effect, the conspirators defrauded their customers” (see paragraph 11 above).[116]However, the quietus to that line of reasoning is given by the House of Lords’ recent decision and reasoning in Office of the King’s Prosecutor, Brussel Armas [2006] 2 AC 1, followed by the abandonment of a similar submission to the Divisional Court in Bermingham.[117]In Armas, the House was concerned, in part, with section 65(3), in Part 1 of the 2003 Act, governing extradition from Category 1 (European Union) territories, identical in its essentials to section 137(2)(b) in Part 2 for extradition to Category 2 territories (other overseas territories). Each turned on the formula that:
“the conduct would constitute an offence under the law of the relevant part of the United Kingdom …if it occurred in that part of the United Kingdom.”
[118]Under both Parts the Act dispensed with any requirement on the requesting state to establish a prima facie case of commission of the alleged conduct, the conduct, in the case of a Part 1 extradition, being that set out in a warrant pursuant to section 2(1)(4) containing the particulars of the conduct alleged to constitute the offence, and, in the case of a Part 2 extradition, the statement in the request, pursuant to section 70(4)(a) stating that a person is accused in the category 2 territory of “an offence specified in the request”. The description of the conduct alleged to constitute the extradition offence made in a request pursuant to section 70(4)(a), therefore, performs the same function as that in a warrant, pursuant to section 2(1)(4), which the English court in either case (sections 65(3)(b) and 137(2)(b) respectively) must consider when determining whether the conduct, if committed here, would constitute an offence here.[119]In Armas the Belgian authorities alleged that the defendant had been involved in people trafficking, facilitating unauthorised entry and residence and forgery of administrative documents – all “framework offences” under the Council Framework Decision. The issue was whether “the conduct” meant “all the conduct constituting the framework offence” or only such of the conduct as would have constituted a criminal offence under the law of this country if it had occurred here. The House of Lords expressly held that conduct not falling within the European framework list (section 65(2)(b)), but within the “double criminality” provision common to section 65(3)(b) and section 137(2)(b), amounted to an extradition offence within that provision. So much is plain from Lord Bingham’s reference in the following passage at paragraphs 16 and 17 of his speech to the opening paragraphs of Lord Diplock’s speech in Nielsen:
“16. … ‘the conduct’ in section 65 means the conduct complained of or relied on in the warrant. Such a reading is consistent with the language and purpose of the Framework Decision, obviates the need for an undesirable inquiry into the niceties of foreign law and is consistent, so far as that is relevant, with the earlier decision of the House in … Nielson. … [at] 614-615. … 17. … It is enough, under subsection 3(a), if some of the conduct complained of or relied on occurred in the category 1 territory”
[120]In Bermingham, a Part 2 case,the argument that, to qualify as an extradition offence, there had to be strict correspondence under section 137(2)(b) of the 2003 Act between the ingredients of the crime alleged in the request and an equivalent crime in this country was abandoned following the House of Lords’ decision in Armas; see per Laws LJ at para 81.[121]Mr Gordon suggested that the issue here is quite different, namely whether “the conduct” included matters alleged in the request extraneous to the overseas offence, and that nothing in Armas permits the consideration of conduct going beyond the conduct alleged to constitute the offence for which extradition is sought or other allegations extraneous to the offence not the subject of any court decision. He also sought to distinguish between extradition, sought as in Armas, pursuant to a European arrest warrant under Part 1 of the 2003 Act, where the courts look to the warrant for the conduct constituting the offence. That conclusion, he submitted, was founded upon respect for and confidence in the foreign judicial authority issuing the warrant.[122]Mr Perry’s response to those submission was that section 137 of the 2003 Act is clear and to like effect to the corresponding provision in the 1989 Act, which in turn had been drafted so to reproduce in substance the simplification of extradition proceedings introduced by the 1870 Act. The intention and effect of all three statutory schemes, he submitted, were to enable extradition courts, to focus on the conduct prompting the request for extradition and to avoid the need for examination of questions of foreign law, as determined in Nielson and McCaffery. He added that the Armas ruling, though concerned with Part 1 of the Act, must have equal application to the similar provision in Part 2, since it would be anomalous if Parts 1 and 2 of the Act had different effect having regard to their common purpose to bring to justice those accused of serious crimes.In addition, he maintained that the interpretation contended for by Mr Gordon would run contrary to Parliament’s intention in designating the United States See Articles 2 and 3 of the Extradition Act 2003 (Designation of Part 2 Territories) Order 2003 ( SI No 3334) and sections 71(4), 73(5), 84(7) and 86(7) of the 2003 Act for the purpose of Part 2 of the Act as one of the countries not required to provide prima facie evidence to support a request for extradition.[123]In my view, the relevant provisions of the 2003 are clear, but even if they were not, the starting point is that extradition statutes should be given a broad construction so as to enable them to serve their trans-national purpose of bringing to justice those accused of serious crimes; see e.g. In re Ismail [1999] 1 AC320, per Lord Steyn, speaking for their Lordships, at 326F-327G, as to the meaning of “accused’ in section 20 of the 1989 Act.[124]Mr Gordon, in his submissions and in his somewhat laboured attempt to distinguish Armas, has simply misread section 137 of the 2003 Act. As section 137(1) and (2)(a) and (b) clearly state, the conduct in question is that occurring in the Part 2 territory, and the offence in question is that which that conduct would have constituted if it had occurred in this country, not the offence charged in the Part 2 territory. The formula in that provision is quite different from the wording in the 1967 Act, rendering inapplicable the reasoning of the House of Lords in Aronson, to an understanding of the reach of section 137. Accordingly, it is immaterial whether dishonesty was a necessary constituent of the offence in the United States constituted by the conduct there, if the conduct alleged included acts or omissions capable of amounting to dishonesty here.[125]The reason why Parliament dispensed with the requirement to show a prima facie case in Part 2 of the 2003 Act was its reliance on the relevant authority of each state designated by the Secretary of State as a category 2 territory to satisfy itself that the conduct of which it complains is criminal within its jurisdiction. It is not, therefore, necessary and it would not be sensible to expect a requesting state to satisfy itself that there should be exact correspondence between the ingredients of the offence alleged in its jurisdiction constituted by the conduct of which it complains and those of the offence that such conduct would constitute in this country if it had occurred here.[126]In the case of the United States and Part 2 offences, the analogue of the warrant, is the request, whether or not it includes more than is required for prosecution of the offence indicated in the Part 2 territory, for example, here, the ingredient of dishonesty to garnish the Sherman Act offence. It was for the United States Government simply to identify in the papers constituting part of its request information, of the conduct upon which it relied, and for the District Judge to consider whether, on that information the conduct, if it had occurred here, would have constituted an offence here. Included in that information is, importantly, the factual and evaluative account of the conduct given by Ms McClain in her affidavit in support of the request.[127]If any support were needed for that construction, it is to be found in the ruling of the House of Lords in Armaseffectively applying the Nielsen test in reasoning that effectively binds this Court. Mr Gordon’s attempt to distinguish Armas was, for the reasons I have given, equally misconceived. The decision of the House of Lords in that case was plainly founded on respect for and confidence in the foreign judicial authority issuing the warrant. Thus it was that their Lordships construed “conduct” for the purpose of section 65 as the conduct complained of or relied on in the warrant. Issue 2 – the transposition issue - whether the alleged conduct of obstructing justice in the United States would, if it had occurred here, have constituted offences here[128]The issue, as identified by Mr Gordon, is whether the conduct alleged in counts 2 to 4 of the United States indictment of obstruction of and interference with United States authorities in their investigation of offences of the price-fixing conspiracy are criminal offences in this country, given that that there is no offence here of obstructing or interfering with the investigation of United States authorities into suspected infringements of United States laws. It raises the broader question of the nature of the transposition exercise for which Parts 1(section 64) and 2 (section 137) of the Act make similar provision.[129]The District Judge held that he was required to consider the conduct alleged on the part of Mr Norris “had it occurred in the UK and had it been aimed at interfering with or obstructing a criminal investigation or judicial investigation taking place within the UK”. On that approach, he held that “the essence of the conduct” was engaging in conduct designed to obstruct or interfere with the United States proceedings”, which, if it had occurred here, would have amounted to an offence of conduct tending and intended to pervert the course of justice, and thus satisfied section 137.[130]Mr Gordon repeated the submission made to and rejected by the District Judge. He maintained that neither the Crown Prosecution Service nor the United States authorities have produced any authority for the proposition that agreeing with others to interfere with a foreign investigatory process can constitute the English offence of conspiring to pervert the course of public justice or doing acts intended and tending to pervert the course of justice. That being so, he submitted, the conduct constituting the United States offences of which Mr Norris is accused there, would not, if done in England, constitute the offences identified by the Crown Prosecution Service in these proceedings, and do not constitute an extradition offence.[131]First, Mr Gordon pointed to the requirement in section 137(1) to focus on the conduct constituting the foreign offence. He suggested that section 137(2)(b) requires the judge to “alter” only one aspect of that conduct – the country in which it occurred, not the national institutions, authorities and procedures of the requesting state.[132]Secondly, Mr Gordon sought to contrast the language of the 2003 Act against that of section 3(1)(c) of 1967 Act, which required that the act or omission constituting the foreign offence “or the equivalent act or omission” should constitute an offence in England. Similar language is used in s 137(3)(c), which requires that “in corresponding circumstances equivalent conduct would constitute an extra-territorial offence” in this country. But the latter provision applies only to conduct that would constitute an extra-territorial offence in England (such as hostage taking or torture; see e.g. R (Al-Fawwaz) v Governor of Brixton Prison [2002] 1 AC 556). He suggested that the absence of similar language in s 137(2) to empower the judge notionally to transpose the national trappings of the overseas conduct as well as its location showed that the notional transposition in respect of a territorial offence was limited to location. He prayed in aid an obiter observation of Lord Bingham in R v Secretary of State for the Home Department ex p. Norgren [2000] QB 817, DC, which concerned an unsuccessful challenge to the Secretary of State’s decision to proceed for extradition under a statutory fore-runner of section 137(3) of the 2003 Act Section 26 of and Schedule 1 to the 1870 Act, as amended by section 38(4) and paragraph 20 of Schedule 20 to the 1989 Act and Article III of Schedule 1 to the United States of America (Extradition) Order 1976 on the ground that the conduct relied on, namely insider dealing on the New York and Pacific Stock Exchanges, did not constitute an extradition offence because it would not have been an offence if committed here where the law proscribed only insider dealing in listed securities on the London Stock Exchange. At 835B, Lord Bingham, giving the judgment of the Court said:
“Having heard the competing contentions of the parties, and helpful submission on behalf of the United States Government, we have inevitably formed tentative views on the likely outcome if the matter were to proceed before the magistrate. Since the [Company Securities (Insider Dealing) Act 1985] proscribes only insider dealing in listed securities on the London Stock Exchange, it would appear doubtful whether the applicant’s dealing on the New York and Pacific Stock Exchanges, even if conducted in England and Wales, would constitute a crime punishable under the law of this country. But it may be that for present purposes the Act of 1985 is to be read as having a broader and less domestic application. …”
[133]Mr Perry’s short response was that the transposition exercise required under Parts 1 and 2 of the 2003 Act involves the transposition of the locality and local institutions, officials and procedures, and that, if it were otherwise, it would be impossible to extradite a person accused of, say, fraudulent trading or perverting the course of justice. The conduct alleged here involves conduct tending and intended to pervert the course of justice, attempts to influence the evidence of potential witnesses and the concealment or destruction of evidence potentially relevant to a criminal investigation in the United States. If the alleged conduct had occurred in the United Kingdom it would have constituted conspiracy to pervert the course of justice or perverting the course of justice, both contrary to common law and with a maximum penalty of life imprisonment.[134]Mr Perry stressed again in this context the focus of section 137 on the word “conduct”, indicating, he submitted, Parliament’s intention that the courts should consider its essentials described in the supporting documents and their significance as a matter of English law, rather than in a comparison of different jurisdictional legal definitions. Otherwise, he argued, the 2003 Act would have defined an extradition offence as one in which the ingredients to constitute it in the requesting state were the same as those required for an offence in this country.[135]Mr Perry also suggested that any other approach would lead to a number of curious results that could not have been intended by Parliament, and in this connection cited by Lord Millett in R (Al-Fawwaz) at paras 104-111, in relation to the corresponding provisions of the 1870 and 1989 Acts:
“107. Crimes which are the natural subject of extradition proceedings are almost invariably committed abroad and as such are usually outside the jurisdiction of the English courts, however widely that expression may be construed. So the conduct which constitutes an extradition crime does not consist of acts which actually were committed in England or within English jurisdiction, but rather conduct which would constitute a crime under English law if the acts in question were so committed. The test, therefore, is a hypothetical one, which calls for some degree of transposition. 108. In R v Governor of Pentonville Prison, ex p Tarling [1978] 70 Cr App R 77 Lord Keith of Kinkel stated, at p 136: ‘In considering the jurisdiction aspect it is necessary to suppose that England is substituted for Singapore as regards all the circumstances of the case connected with the latter country …’ … 109. …I think that is the correct way to effect the transposition. The principle at work is mutatis mutandis. … the test is applied by substituting England for the requesting state wherever the name of the requesting state appears in the indictment. … 110. … it is necessary to effect an appropriate substitution for every circumstance connected with the requesting state on which the jurisdiction is founded. … ”
[136]Mr Perry also referred the Court to similar reasoning in two Commonwealth decisions, Linhart & Anor v Elms (1988) 81 ALR 557, a decision of the Federal Court of Australia, holding that such a transposition exercise included the requesting state’s institutions, officials and procedures; and In Re Collins (No 3) (1905) CCC 80, a decision of the Supreme Court of British Columbia, per Duff J, at 103, to like effect.[137]In my judgment, the District Judge correctly held that he was concerned with the essentials of the conduct relied on as constituting the extradition offence here. If he were to be tied to the peculiarities of office and position of victims or other players in the country seeking extradition or to the institutional settings in which the conduct relied upon occurred, it would largely defeat the purpose of section 137, which is to provide effective extradition. Simply because the alleged interference with justice is, say, directed against a particular functionary in the particular institutional set-up of the extraditing state cannot, on that account exclude such manner of conduct from being an extradition offence in this country because there is not exact correspondence with a functionary or institution here.[138]It follows that Mr Gordon, in my view, is wrong in his suggestion that section 137, in its application in section 137(2)(b) to putative territorial offences is narrower than that in section 137(3)(c) to putative extra-territorial offences, so as to require a more exact transposition in the case of the former. The structure of each of those two provisions may be slightly different (see paragraph 37 above – I suspect because the draftsman, to avoid what would otherwise have been an over-long formulation of one test, divided it, for convenience of presentation, into two. But the meaning, subject only to territoriality, is the same, one of identifying the conduct, wherever it occurred, the like of which would constitute an offence if committed in the United Kingdom. Thus, section 137(2)(b), in its treatment of territorial extradition offences, speaks of conduct constituting “an offence under the law of the relevant part of the United Kingdom”. And section 137(3)(c) speaks of “equivalent conduct” “in corresponding circumstances” that would “constitute an extra-territorial offence under the law of the relevant part of the United Kingdom”.[139]The provision clearly indicates a broad conduct-based approach, shorn of the national and institutional setting in which it occurred, notwithstanding the hesitancy of some leading commentators to the same effect Jones & Doobay On Extradition and Mutual Assistance, 3rd ed., pp 157-158, para 6-035 and Lord Bingham’s heavily tentative and obiter qualification in Norgren, a qualification that would have even greater force in this case, where a broad common law offence not defined by reference to national trappings is under consideration.In short, as Mr Perry maintained, not only are the meaning and purpose of the provision plain, the contrary contention of Mr Gordon would undermine that purpose.

Issue 3 - Delay

[140]Section 82 of the 2003 Act provides that a person’s extradition to a Part 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…”
[141]The argument advanced on Mr Norris’s behalf before the District Judge and on this appeal was that the period of some sixteen years and six years since the start and finish respectively of the conduct giving rise to the price-fixing conspiracy charge and some seven and five years since the start and finish respectively of the obstruction of justice charges would be both unjust and oppressive. Mr Gordon submitted that the injustice lay in the impact of the delay on his ability to prepare his defence, and the oppression in the disruption of his family life and the delays inherent in the American trial process.[142]The District Judge dealt very fully with both issues.[143]As to the potential injustice in facing trial some five or more years after the end of all the conduct the subject of the United States indictment, the District Judge noted that the alleged conduct of Mr Norris in obstructing and interfering with justice between 1999 and 2001 must have significantly delayed the investigation of the alleged price-fixing conspiracy between 1989 and 2000. And he found that, although Mr Norris had been notified some time before in considerable detail of the allegations he would have to meet, he had not identified the issue or issues in respect of which he would be prejudiced in his preparation for and conduct of a trial in the United States as a result of the delay.[144]As to oppression, the District Judge acknowledged the matters of which Mr Norris complained and on which he heard evidence – potential difficulties arising from the disruption of his and his family’s life, as to bail and from delays in American procedures that would flow from his extradition. However, he found that such difficulties would not flow from any delay to date but would be a feature of the inevitably disruptive effect of extradition whenever it occurs. As to the impact of all this on Mr Norris’s health, about which the District Judge also heard evidence, he again found that it was not a product of delay, and noted from the evidence before him that his medical needs would be met in the United States.[145]As to injustice, Mr Gordon criticised the District Judge’s observation in his judgment that “the conduct of Mr Norris in respect of the obstruction of justice allegations can only have a delaying effect”, in the absence of even prima facie evidence in support of those allegations. He also criticised the District Judge for having taken into account and placed weight on Mr Norris’s failure to explain the basis of his defence to the court and to indicate how preparation of it would be prejudiced by the passage of time. Such an approach, Mr Gordon maintained, ignored the refusal of the United States Government to provide Mr Norris with sufficient information in evidential or other form to enable him to deal with complex facts over at least a fourteen year period from 1989 to 2003. He asserted on instructions that, although Mr Norris knows what is asserted against him, he did not know by whom it is asserted or what documentary evidence would be deployed against him. He maintained that since Mr Norris’s retirement from Morgan Crucible in September 2002, he has had no access to the detailed information provided to Morgan in the plea-bargaining negotiations with others involved to enable him to prepare his defence. He added that, to require Mr Norris to particularise his defence for the purpose of identifying in these extradition proceedings the forensic prejudice from delay upon which he relies would give the United States prosecutors an unfair advantage not enjoyed by them in prosecution of defendants resident in the United States.[146]Mr Gordon prayed in aid, by way analogy, the approach of the Divisional Court (Lord Phillips CJ and Cresswell J) in R (Government of the United States of America) v Senior District Judge, Bow Street Magistrates’ Court & Tollman [2006] EWHC 2256 (Admin), The Times, 19th September 2006 (“Tollman”). That case establishes that where abuse of process is in issue, Article 13 ECHR may require disclosure by the requesting state of material relevant to that issue, and that, although a United Kingdom court cannot order the foreign prosecuting authority to disclose such material, it can and should refuse to grant the application for extradition unless and until disclosure is given; see paragraphs 89 – 92 of the judgment of the Lord Chief Justice. The same approach, Mr Gordon submitted, should apply here to the question whether the delay would prejudice Mr Norris.[147]Mr Perry supported the District Judge’s ruling that it would not be unjust to extradite Mr Norris by reason of the passage of time. He relied principally on the fact that Mr Norris had had for some time considerable information of the case he has to meet in the relatively detailed, narrative United States indictment and other material, including Ms McClain’s affidavit, yet he had not indicated, even in broad outline, the nature of the issues he would have to take with the prosecution if it goes ahead, so as to give some idea of the problems caused to his defence by the delay. The result - whatever his legal entitlement to hold his cards close to his chest – was and is that it is not possible to reach any conclusion in these proceedings of the prejudice, if any, or its extent he might suffer from the delay to date.[148]As to oppression, Mr Gordon maintained that if Mr Norris is extradited to the United States there will be serious personal consequences for him and his family. He also referred to Mr Norris’s state of health indicated by the evidence and to what he called a real prospect of abuse of process at trial. He submitted that the District Judge erred in holding that extradition would not be oppressive, having regard to the circumstances set out in the evidence of Mr Norris, Lawrence Byrne, Judge Martin and in the various medical reports before the District Judge and this Court.[149]Mr Perry submitted that the District Judge correctly rejected those considerations as having nothing to do with potential prejudice from delay, which is all that section 82 is concerned with. He referred the Court to Kakis v Republic of Cyprus [1978] 1 WLR 779, and R v Governor of Pentonville Prison, ex parte Narang [1978] AC 247, in which it was held that the circumstances to which the court should have regard, whether as to injustice or oppression, are only those flowing from the passage of time.[150]In Kakis, a case decided under the 1967 Act, the House of Lords considered the statutory context of the words “unjust” and “oppressive”. Lord Diplock (with whom Lord Russell and Lord Scarman agreed) said at 782H-783D:
“‛Unjust’ I regard as directed primarily to the risk of prejudice to the accused in the conduct of the trial itself, “oppressive” as directed to hardship to the accused resulting from changes in his circumstances that have occurred during the period under consideration; but there is room for overlapping, and between them they cover all cases where to return him would not be fair. Delay in the commencement or conduct of extradition proceedings which is brought about by the accused himself … cannot … be relied upon as a ground for holding it to be either unjust or oppressive to return him. Any difficulties that he may encounter in the conduct of his defence in consequence of the delay due to such causes are of his own choice and making. Save in the most exceptional cases it would neither be unjust or oppressive that he should be required to accept them. As respects delay which is not brought about by the acts of the accused himself, however, the question of where responsibility lies for the delay is not generally relevant. What matters is not so much the cause of such delay as its effect; or, rather, the effects of those events which would not have happened before the trial of the accused if it had taken place with ordinary promptitude. So … the court is not normally concerned with what could be an invidious task of considering whether mere inaction of the requesting government or its prosecuting authorities which resulted in delay was blameworthy or otherwise.”
[151]The question for the Court is essentially one of fact and of its own judgment as to the effect of the passage of time if extradition is resisted on the grounds that it would be unjust or oppressive to sanction by reason of delay; R v Governor of Pentonville Prison, ex parte Narang [1978] AC 247, see per Lord Dilhorne at 272H-273B, Lord Morris at 279C-E, and Lord Edmund-Davies at 283E-F, a case decided under the 1967 Act, but equally applicable to 1989 Act and 2003 Act cases.[152]In my view, the circumstances relied on by Mr Norris before the District Judge and this Court did not make out a case of injustice or oppression whether on account of delay or otherwise.[153]As to injustice, the problem with Mr Gordon’s submissions is that he was not able to point to any likely prejudice to Mr Norris, by reason of the delay, save to suggest some hypothetical risks of it, depending on what Mr Norris’s defence might turn out to be. As Mr Perry observed, the United States authorities did not learn of the alleged price-fixing conspiracy until late in its history, that is, in 1999 when they began their investigation. Since then, Mr Norris has been on notice of the investigation and in a position to assemble material to rebut the suggestion of an unlawful conspiracy or of his participation in it, as Morgan did between October 2001 and March 2003 in preparing and making detailed submissions in response to the Pennsylvanian federal grand jury’s subpoena requiring it to produce records and other information. This is not a case of abuse of process, which this Court had in mind as a possibility in paragraphs 89-92 of its judgment in Tollman. Absent abuse of process, there is no free-standing right to disclosure of evidence prior to arraignment in the American criminal trial process or in these extradition proceedings under the 2003 Act. In any event, Mr Norris would, if and in the event of extradition, be entitled to raise before the courts in the United States the issue whether, having regard to delay, he could have a fair trial.[154]As to oppression, there is no reason, on the material put before the Court to suppose that he will suffer, by reason of the passage of time, any greater personal or family hardship, that is, beyond that inevitably inherent in the act of extradition, when facing what is likely to be a long criminal trial process in another country.

Human Rights

[155]Section 87 of the 2003 Act prohibits extradition of a person where it would be incompatible with his human rights. Mr Norris’s case before this Court is that the District Judge should have held that his extradition would be incompatible with his human rights, in particular Articles 8 and 14 of the ECHR. That argument had not been raised with the Secretary of State and is, therefore, subject to section 109(4) of the 2003 Act, namely that there is new information that would have led him to deciding the matter differently so as not to order extradition.

Article 8

[156]Article 8 of the ECHR provides as follows:
“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 in accordance with the law and is necessary in a democratic society … for the prevention of disorder or crime, … or for the protection of the rights and freedoms of others.”
[157]The crucial words in Article 8(2) are “necessary in a democratic society”. The question is whether the act of extradition and its consequences are necessary and proportionate, given the other options available to the Secretary of State, which, Mr Gordon suggested, include proceedings against him in the United Kingdom.[158]In Launder v United Kingdom (1997) 25 EHRR CD 67 (Application No 27378/95), the Commission considered the sought extradition in 1994 of a fugitive in respect of alleged offences of bribery in Hong Kong between 1980 and 1982. The fugitive had for a significant part of that time evaded arrest and/or opposed extradition. The Commission found that, although a decision to extradite may engage Article 8, it has as a legitimate aim the prevention of disorder and crime and that it is only in exceptional circumstances that extradition for serious offences would be regarded as unjustified or disproportionate. The Commission stated at page 20:
“The notion of necessity implies a pressing social need and requires that the interference at issue be proportionate to the legitimate aim pursued. The Commission considers that it 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. …”
[159]The District Judge held that there was no incompatibility between extradition of Mr Norris and his Article 8 rights. He took the view that, although Article 8 was engaged, there were no circumstances satisfying the Launder test of exceptionality to render Mr Norris’s extradition disproportionate. In doing so, he took into account again all of the material put before, and submissions made to, him on the delay issue under section 82 of the 2003 Act:
“17. …. Issue is taken whether there should be a criminal trial in America. The Government wants to prosecute Mr Norris for alleged offences committed within its jurisdiction. Firstly, for a cartel offence, the impact of which was to cause prejudice to the economic interests of other companies operating in America. Secondly, for obstruction of justice offences, aimed at the federal grand jury sitting in Pennsylvania. This is very much an American case. It cannot be claimed that there was only some minor or tangential basis for the Government to claim jurisdiction. The fact that it might have been possible for criminal charges to have been preferred against Mr Norris in the UK is not a reason to deny jurisdiction to a state which has a very real and obvious reason to want to prosecute. The Extradition Act 2003 makes provision for how the extradition court should deal with those cases where a domestic prosecution is underway. Had Mr Norris been charged here I would have to adjourn the extradition hearing in accordance with section 88. No such domestic prosecution is underway or even contemplated. The UK Secretary of State has certified that this extradition request is valid and has been made in the approved way. I cannot envisage any circumstance where the proper application of Article 8 would result in this court refusing an extradition request on the basis that it might have been possible to prosecute a defendant in the UK but no such prosecution is either underway or proposed. 18. Having regard to all the material put before me in support of the section 82 submission, together with submissions dealt with in paragraph 17 I have to ask myself whether the proposed extradition of Mr Norris serves a legitimate aim as identified in the second paragraph to Article 8. The proper workings of extradition arrangements are fundamental to the prevention of crime. As was decided in the Launder case one is looking for exceptional circumstances that might show that the extradition would be unjustified and a disproportionate interference with the right to respect of family life. No such circumstance is established in this case. This is a serious case in which important issues arise. Mr Norris’s own expert on American criminal law offered some reassurance by confirming the constitutional and statutory safeguards available in America that are designed to ensure that criminal allegations are adjudicated upon fairly and justly. … I note that there have been no submissions made under section 91 to the effect that Mr Norris’s physical or mental condition is such that it would be unjust or oppressive to extradite him. ”
[160]Mr Gordon made two main and inter-related challenges to that ruling, the first, about the impact of extradition on Mr Norris’s family life, the second, the availability of prosecution in this country as an argument against the proportionality of extradition, and the third the suggested lack of seriousness of the alleged extradition offences.[161]Mr Gordon relied again on the material put before the District Judge going to the effect of extradition on Mr Norris’ family life, particularly as graphically described in Mrs Norris’ witness statement. He suggested, as he had done on the delay issue, that the District Judge should have taken into account the impact on Mr Norris’s “physical or psychological integrity”, his right to personal development and his right to establish and develop relationships with other human beings and the outside world. And he referred to the European Court’s acknowledgement in a number of contexts of the breadth of the term in Article 8 of “family life”; see Pretty v United Kingdom, (2002) 35 EHRR 1, at para 61; DG v Ireland, (2202) 35 EHRR 33, at para 105, and Bensaid v UK (2001) 33 EHRR 205 at para 47. He urged on the Court the particular relevance of five factors: 1) the circumstances in which the appellant is likely to be kept before trial in the United States are markedly more severe than those applicable to defendants of United States nationality (referred to in the evidence of Lawrence Byrne); 2) the time that has passed since the commission of the alleged offences, and the time when they became public; 3) the fact that the United States authorities have refused to disclose any evidence, so that attempts to start preparation in advance for the trial process in the United States are severely impeded; 4) the appellant’s poor health and his family circumstances; and 5) the likely punishment if he is convicted, having regard to the Federal Sentencing Guidelines.[162]Secondly, Mr Gordon submitted that Mr Norris’s extradition was not, in any event, justifiable under Article 8(2) since it was not necessary and not in accordance with the law, arguing in particular that any extradition charges established should be tried in this country because most of the conduct upon which the request is based is alleged to have occurred here. More particularly, he argued that the District Judge should have taken into account that Mr Norris was entitled under the 1972 Treaty (see paragraph 30 above) to a prima facie case, but denied, by an un-ratified treaty (see paragraphs 31 and 32 above), of the opportunity of testing whether there was a prima facie case against him.[163]Thirdly, Mr Gordon suggested that the Bermingham test of high exceptionality did not apply to these facts, first, because the charges of conspiracy to price-fix and obstruction of justice were not serious offences, secondly, because they were not in the main committed in the requesting state, as was the serious fraud alleged in Bermingham; and, thirdly, that there should be symmetry with the test in asylum cases, which he suggested was a lower threshold of disproportionality than that applicable in extradition cases.[164]In the light of these factors, Mr Gordon submitted that the District Judge should have found that extradition to the US would constitute a disproportionate interference with Mr Norris’s right to respect for his family life, and sought remission of the matter to the District Judge for reconsideration on the Article 8 issue, with a view to trial, if any, of Mr Norris in this country.[165]Mr Perry, supported by Mr Qureshi, submitted that the District Judge correctly found that extradition of Mr Norris to the United States would not constitute a disproportionate interference with his Convention rights. In particular, he maintained that the Judge dealt correctly with the Article 8 requirements and had properly taken account of all the relevant evidence, including that of Mr Norris’s expert that the constitutional safeguard in the United States would ensure him a fair trial. Mr Qureshi added by way of submission that, on the material before the District Judge and this Court, there is no reason for the Secretary of State to depart from his decision.[166]Mr Perry referred the Court to the high threshold of exceptionality for disproportionality for such cases set by the House of Lords in the asylum case of R(Ullah) v Special Adjudicator [2004] 2 AC 323, in which Lord Bingham of Cornhill indicated, at paragraph 24, the following approach. In cases involving qualified human rights such as those in Articles 8 or 9 disproportionality only arises in cases of flagrant denial or gross violation of the right, that is, where the interference will completely destroy or nullify it in the destination country. I should also refer to Lord Walker of Gestingthorpe’s observation in that case, at para 30, that “the Strasbourg Court’s insistence on the need for ‘very exceptional circumstances’ continues to be maintained in the most recent jurisprudence”.[167]Mr Perry also relied on the approach to Article 8 in the extradition context by this Court in Bermingham – a 2003 Act case -in which Laws LJ (with whom Ouseley J agreed), after considering the European authorities, in particular, Launder, and the domestic authorities, in particular, Ullah, said, at para 18:
“… If a person’s proposed extradition for a serious offence will separate him from his family, Article 8(1) is likely to be engaged on the ground that his family life will be interfered with. The question then, will be whether the extradition is nevertheless justified pursuant to Article 8(2). Assuming compliance with all the relevant requirements of domestic law, the issue is likely to be one of proportionality: is the interference with family life proportionate to the legitimate aim of the proposed extradition? Now, there is a strong public interest in ‘honouring extradition treaties made with other states’ (Ullah, paragraph 24). It rests in the value of international co-operation pursuant to formal agreed arrangements entered into between sovereign states for the promotion of the administration of criminal justice. Where a proposed extradition is properly constituted according to the domestic law of the sending State and the relevant bilateral treaty, and its exclusion is resisted on Article 8 grounds, a wholly exceptional case would in my judgment have to be shown to justify a finding that the extradition would on the particular facts be disproportionate to its legitimate aim.”
[168]However, as I have indicated in summarising Mr Gordon’s submissions on this issue, whilst he does not appear to have challenged the general commonality of the high exceptionality test to both asylum and extradition cases, he did take issue in two particular respects with Laws LJ’s application of it to extradition to the United States in a case such as this. First, he suggested that the passage from the Commission’s decision in Launder (see paragraph 159 above)upon which it was based does not support it, because, where, as here, almost all of the conduct complained of was committed outside the United States, not, as in Launder, in the requesting state, the presumption that violations of Article 8 will be exceptional does not apply.[169]Secondly, Mr Gordon submitted that Laws LJ was wrong in Bermingham, to regard extradition to the United States under the 2003 Act as engaging the objective of “honouring extradition treaties made with other states” because such extradition, in the absence of evidence of a prima facie case is contrary to - and therefore does not honour – the 1972 Treaty still in force between the United States and the United Kingdom (see paragraphs 29 – 32 above). It followed, he submitted, that Laws LJ wrongly concluded that a violation of Article 8 in this 2003 Act extradition case can only be shown in a “wholly exceptional case”.[170]I say straightaway that, in my view, neither of those submissions make a respectable case for challenging the high threshold for a ruling of disproportionality in Article 8 cases of otherwise lawful despatch of persons in this country to other jurisdictions whether in the exercise of asylum or extradition jurisdiction.[171]As to the first, the purported distinction according to whether the extradition offence is territorial or non-territorial, is immaterial as a matter of interpretation given the similar provision in section 137(2)(b) and (3)(c) for both circumstances, and as a matter of logic, given the context in which the balance is between the international acknowledgement of the need for effective extradition against qualified human rights such as Article 8.[172]As to the second, I note first that it is evident from paragraph 14 of Laws LJ’s judgment in Bermingham that he was aware, when formulating the general proposition in paragraph 18, that the 1972 Treaty was still in force and that the United States had yet to ratify the 2003 Treaty. But, in any event, it is plain, in my view, that, regardless of the formal status as between states of bilateral treaties underlying or informing the exercise of either jurisdiction, the same Article 8 considerations should apply when considering the human rights of individuals, namely that, when invoking their protection under that Article against otherwise lawful removal from the country against their will, they should have a very high threshold to surmount. The lack of such ratification is, therefore, irrelevant to the importance given by the Strasbourg Court to effective extradition; see e.g. Soering v United Kingdom (1989) 11 EHRR 439. Moreover, as Mr Qureshi observed, citing paragraphs 44 and 45 of the judgment of this Court in Norris (1) (see paragraph 32 above), the scheme of the 2003 Act in its impact in human rights terms or otherwise, is not contrary to the 1972 Treaty. That instrument sets out bilateral extradition obligations as between the United States and this country. It is only enforceable by each against the other, not by individuals in this country whose rights to resist extradition are governed by our domestic law, in this context the 2003 Act, as informed by the ECHR and Strasbourg jurisprudence.

Article 14

[173]Article 14 prohibits unjustified discrimination in the enjoyment of Convention rights on a number of grounds including “nationality” and “other status”. Mr Gordon submitted that under the regime introduced by the 2003 Act and that still in force of the 1972 Treaty Mr Norris’s extradition to the US would involve two breaches of Article 14.[174]The first, in respect of his Article 8 rights, was that as a United Kingdom national resident in the United Kingdom he would have less procedural protection, in that he could be extradited without any prima facie case being established against him, than a United Kingdom citizen resident in the United States who could not be extradited to this country without such a prima facie case. Mr Norris relied, for this purpose, on the ruling of the House of Lords in R (Carson) v Secretary of State for Work and Pensions [2006] 1 AC 173 that residence counts as a species of “other status” within the meaning of Article 14, with the result, he submitted, that it was for the United States Government and/or the Secretary of State to provide a rational justification for the difference in level of procedural protection. He added that neither the 1972 Treaty nor the 2003 Act provides immunity from this requirement, referring to Matthews v UK (1999) 28 EHRR 361, where the ECtHR held that the fact that a Contracting State had entered into a treaty was no defence to a complaint of violation of Convention rights. In short, he submitted, no justification has been provided for the discrimination as between the extradition treatment of United Kingdom nationals according to whether they are resident in the United Kingdom or the United States.[175]The second breach of Article 14 suggested by Mr Gordon was that the evidence before the District Judge suggested that Mr Norris, if extradited to the United States, would be treated less favourably than would a United States national facing similar charges there. He submitted, in reliance on a passage from Baroness Hale’s dissenting speech in R (Razgar) v Secretary of State for the Home Department [2004] 2 AC 368 – an asylum case, para 43, that, since the conduct complained of here is that of the United Kingdom in extraditing Mr Norris to face such treatment, this is a “domestic case” to which the ordinary principles of justification apply. In the alternative, he maintained that even if it were appropriate to treat this as a “foreign case”, the circumstances are such as to amount to a gross violation to the right to equal treatment in the Ullah sense. In the absence of any justification for such differential treatment, a decision by a United Kingdom public authority to subject Mr Norris to such a regime would itself contravene Article 14.[176]Mr Perry referred to the ratio of the majority in Razgar, to the effect that removal from the country, to amount to a violation of an Article 8 right, must amount to a grave interference with the right, such as to amount to a flagrant denial of it, and Lodhi v Governor of HM Prison Brixton [2001] EWHC (Admin) 178, and Ullah to like effect. In his submission, applying the high exceptionality test, the suggestion that Mr Norris’s case on its facts contravened his Article 14 rights did not begin to merit consideration.[177]Mr Perry and Mr Qureshi both submitted that Article 14 was not, in any event, engaged, because the procedures in Part 2 of the 2003 Act govern United Kingdom nationals like Mr Norris in the same way as they do all other nationals found here. The only possible candidate for difference in treatment is as between Mr Norris as a non United States citizen when compared with a United States citizen facing similar requests for extradition here. If that were to be a basis for engaging Articles 8 and 14, it would also, as Mr Qureshi observed, carry with it, as an Article 8(2) consideration a factor in favour of extradition, namely, the fact that that he would be a greater “flight risk” if not extradited.[178]In my view, Mr Perry’s and Mr Qureshi’s submission in support of the District Judge as to the law and its application to the circumstances of this case are sound. The District Judge rightly applied the test of high exceptionality to the claim on behalf of Mr Norris that the interests of comity and effective extradition were outweighed by his Article 8 right to respect family life, and reached an unassailable conclusion that Mr Norris did not satisfy the test on any or all of the matters advanced by Mr Gordon, a conclusion with which I agree for the reasons he gave. In my view also, there was no evidence before the District Judge or this Court that Mr Norris, if extradited and held in custody, would not be accorded civilised facilities for communication and association with his family and with medical support commensurate with his needs and the level of security appropriate to the circumstances of his case.[179]Accordingly, I would hold no breach is shown of Article 8, or of Article 14. In addition, the Article 14 argument had no validity even if it had stood on its own, since, as Mr Perry and Mr Qureshi submitted, the provisions of Part 2 of the 2003 Act govern all United Kingdom nationals like Mr Norris in the same way as they do all other nationals found here. Different treatment of United States nationals in extradition proceedings sought by this country, resulting for the time being from lack of symmetry in treaty relations between the two countries, is nothing to the point.[180]For all those reasons, I would dismiss both of Mr Norris’s appeals. Mr

Justice Field:

[181]I agree.

Cited in 16 later judgments

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