| EXTRADITION — Extradition crime — Jurisdiction — Defendant charged in United States with conspiracy to fix prices — Charge not requiring element of dishonesty — Conduct alleged including secrecy intended to prejudice others — Whether capable of constituting common law conspiracy to defraud — Whether extradition offence — Extradition Act 2003, s 137
Norris v Government of the United States of America and another (Goldshield Group plc and another, intervening) [2007] EWHC 71 (Admin)
QBD: Auld LJ and Field J: 25 January 2007
Where the only element of dishonesty in a price-fixing agreement intended to cause prejudice to others was secrecy, it was capable of constituting a common law conspiracy to defraud, and so was an extradition offence.
The Queen’s Bench Divisional Court so held when dismissing the appeals by Ian Norris (1) under s 103 of the Extradition Act 2003 against an order of District Judge Nicholas Evans at Bow Street Magistrates’ Court on 1 June 2005, in response to a request from the Government of the United States of America in March 2004, to send his case to the Secretary of State for his decision whether, pursuant to s 87(3) of the 2003 Act, he should be extradited, and (2) under s 108 of the 2003 Act against the decision of the Secretary of State for the Home Department dated 29 September 2005 to extradite him.
AULD LJ said that the defendant, a United Kingdom national and resident, was charged in the United States with three counts alleging obstruction of justice and one count of conspiracy to price-fix. Central to the appeal concerning the price-fixing conspiracy was the question whether the defendant was accused of “an extradition offence” within the meaning of that expression in s 137(2) of the 2003 Act, namely conduct in a category 2 territory which, if it had occurred here, would have been an offence in this country punishable by at least 12 months’ imprisonment. Various strands of argument were submitted in support of the contention that a conspiracy to defraud in the form of Sherman Act price-fixing was not known to our law. The defendant had submitted 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 an offence known to our law, and, in particular, could not amount to conspiracy to defraud so as to amount to an extraditable offence within section 137(2)(b) or (3)(c). His Lordship rejected that submission, adopting the reasoning of Sir Jeremy Lever QC and John Pike in their paper “Cartel Agreements, Criminal Conspiracy and the Statutory ‘Cartel Offence’” (2005) 26 ECLR vol 2, pp 70-77 and vol 3, pp 164-172, as an accurate statement of the reach of the common law of conspiracy to defraud over dishonest price-fixing, namely an agreement dishonestly to price-fix so as to cause prejudice to others. The conduct alleged was 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. Such conduct was capable of being regarded by ordinary people as dishonest, and of being realised to be such by its perpetrators.
FIELD J agreed. |
Appearances: Richard Gordon QC and Martin Chamberlain (White & Case LLP) for the defendant; David Perry QC and Adina Ezekiel (Crown Prosecution Service, Ludgate Hill) for the Government of the United States of America; Khawar Qureshi QC (Treasury Solicitor) for the Secretary of State for the Home Department; David Vaughan QC, Thomas de la Mare and Sarah Ford (Jones Day) for Goldshield Group plc, intervening; Richard Lissack QC, James Flynn QC and Eleanor Davison (Solicitor, Serious Fraud Office) for the Serious Fraud Office, intervening.
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