Maxwell-King v The Government of the USA
| Jurisdiction | England & Wales |
| Judgment Date | 07 December 2006 |
| Date | 07 December 2006 |
| Court | Queen's Bench Division (Administrative Court) |
Court and Reference: Divisional Court, CO/8922/2006
Keene LJ, Lloyd Jones J
Appearances: C Dobbin (instructed by Osborn, Abas and Hunt) for M; A Ezekiel (instructed by the Crown Prosecution Service) for the respondent.
Whether M's extradition was barred by double jeopardy or the passage of time.
The USA, a part 2 territory under the Extradition Act 2003,sought M's extradition for offences of conspiracy to import and sell unauthorised satellite television decoders into the USA. Following the extradition hearing, a district judge sent M's case to the Secretary of State for the Home Department for his decision whether M should be extradited. M appealed to the High Court against the district judge's decision, submitting that: (1) the district judge wrongly decided that M's extradition was not barred by reason of the rule against double jeopardy, pursuant to s. 80 of the 2003 Act, in light of criminal proceedings brought against him at Doncaster Crown Court, in which he admitted a similar offence involving 20 devices and for which he received a community penalty; (2) the district judge wrongly decided that M's extradition was not barred by reason of the passage of time.
Lloyd Jones J
1. Mr Paul Maxwell-King ("the Appellant") appeals pursuant to s. 103, Extradition Act 2003 ("the 2003 Act") against the decision of District Judge Anthony Evans made on 14 August 2006 to send his case to the Secretary of State.
2. The Government of USA ("the Respondent") has submitted 3 separate requests for the extradition of the Appellant, his former wife Karen Maxwell-King and Steven Edmondson, respectively, who are jointly accused in the US in being concerned in the sale of devices designed in order to enable others illegally to obtain access to satellite television signals from "Direct TV", a US based company, free of charge.
3. All 3 appealed pursuant to s. 103 of the 2003 Act against the decisions of District Judge Evans to send the case to the Secretary of State. However, on 21 November 2006 the Respondent withdrew its request for the extradition of Mrs Maxwell-King. Accordingly, on 22 November 2006 the Divisional Court made an order pursuant to s. 124(3) of the 2003 Act ordering the discharge of Mrs Maxwell-King and quashing the order for her extradition. Furthermore, by a consent order dated 21 November 2006, Mr Edmondson has withdrawn his appeal. Accordingly, at this hearing we have been concerned only with the appeal of the Appellant.
4. The USA has been designated a category 2 territory pursuant to s. 69 of the 2003 Act. Accordingly, this application for extradition is governed by Part 2 of the 2003 Act.
The Extradition Proceedings
5. On 1 October 1999, US Magistrate Judge Thomas D. Wilson signed a warrant for the arrest of the Appellant. On 14 May 2002 a grand jury returned an indictment charging the Appellant and others with criminal offences against the laws of the USA. On 21 May 2002 a further warrant for the arrest of the Appellant was issued. This warrant superseded that issued on 1 October 1999. The request for the extradition of the Appellant was supported by an affidavit sworn on 14 October 2004 by Ernest F. Peluso, the Assistant US Attorney for the Middle District of Florida.
6. On 23 November 2004 the Secretary of State issued a certificate under s. 70 of the 2003 Act in respect of the Appellant. The Appellant was arrested on 22 June 2005 in pursuance to the extradition request. On the same day the Appellant was brought before a District Judge at Bow Street Magistrates Court in accordance with Part 2 of the Act. Following a series of adjournments, on 4 April 2006 the extradition hearing against the Appellant, Mrs Maxwell-King and Mr Edmondson commenced. At the extradition hearing it was submitted on behalf of the Appellant that the contents of the request did not satisfy s. 78(2)(c) of the 2003 Act and that the conduct specified in the request did not constitute an extradition offence. It was further submitted on behalf of the Appellant that extradition to the USA was barred by the rule against double jeopardy. On 19 July 2006 District Judge Anthony Evans rejected all those submissions. On 7 August 2006 District Judge Anthony Evans heard submissions and evidence on the Appellant's plea that his extradition to the US was barred by reason of passage of time. On 14 August 2006 the District Judge decided that it would not be unjust or oppressive to extradite the Appellant by reason of the passage of time. On 14 August 2006 the Appellant's case was sent to the Secretary of State to await his decision as to whether he should be extradited.
7. On this appeal the Appellant submits that
(1) The District Judge wrongly decided that his extradition is not barred by reason of the rule against double jeopardy;
(2) The District Judge wrongly decided that the Appellant's extradition is not barred by reason of the passage of time.
The Alleged Criminal Activities in the US
8. The factual background to this request for extradition, as alleged by the Respondent, is as follows. In early 1997, US Immigration and Customs Enforcement ("ICE") agents in Tampa, Florida received information that Blue Sky Technologies ("BST"), a Tampa based company, was selling unauthorised Direct TV satellite television access cards without permission from Direct TV. It is alleged that BST manipulated the Direct TV access cards to receive all channels from Direct TV without payment and that BST also pirated programmers used to reprogramme Direct TV satellite television access cards to give the card user free access to all channels offered by Direct TV.
9. The information provided to ICE linked BST to a number of websites controlled by the Appellant. The pirated access cards and programmers originated from the UK. In April 1999, a US Parcel Service security supervisor reported to ICE that he regularly received packages for Brenda and David McClamma containing unusual electronic devices. On examination they were found to contain illegal satellite signal intercept devices and Direct TV cards containing hacked computer chips. A search of the home of Mr and Mrs McClamma in Florida in April 1999 revealed illegally pirated electronic devices designed to intercept US satellite television signals to a value of approximately $778,224. Mr and Mrs McClamma informed agents that they bought the components from the Appellant and BST which was operated by Robert McLaren, his wife Wanda McLaren and Susan Parker-Trudgian. On 13 August 1999 Mr McClamma (acting in co-operation with ICE) telephoned Mr McLaren. Mr McLaren stated that he and the Appellant were involved in the distribution of devices designed to intercept television satellite signals and that he and his wife distributed devices for the Appellant. A search by ICE agents on 30 September 1999 of the home addresses of Mr and Mrs McLaren and Miss Parker-Trudgian revealed $1,000,000 worth of computer and other electronic equipment designed to intercept US satellite signals. The agents also discovered invoices which showed that devices were being imported into the US from the UK by the Appellant. During the investigation ICE agents arrested John Dumas who had imported pirated cards form Maxking Interfaces Ltd., a company controlled by the Appellant. Mr Dumas informed ICE agents that between 1999 and 2000 he was the Appellant's primary distributor of various electronic devices, the function of which was to alter card programming devices to intercept satellite televisions. Mr Dumas also told the agents that in August 2000 he spoke to Mr Edmondson, whom the Appellant had identified as the new employee who was to operate the Appellant's business from England, as the Appellant was considering relocating to Tunisia in order to avoid the UK authorities.
Extradition Offences
10. The indictment returned by a grand jury on 14 May 2002 charging the Appellant and others with criminal offences against the laws of the USA includes counts alleging conspiracy to defraud or to commit an offence against the laws of the USA, mail fraud, wire fraud, unlawful importation, sale and distribution of an electronic, mechanical or other device or equipment for a prohibited purpose and the entry of goods by false statements.
11. Before the District Judge a point was taken that the request for extradition did not disclose extradition offences because the offences specified were not extradition offences within s. 78(4)(b) of the 2003 Act. During the course of the hearing before the District Judge two further charges were added in substitution for the original second charge. These new charges are
(1) A conspiracy with others to import unauthorised decoders into USA.
(2) A conspiracy with others to sell unauthorised decoders in the USA.
The District Judge concluded that the offences specified are extradition offences within s. 78(4)(b). In the light of the reformulated charges the Appellant no longer seeks to appeal on this ground.
Double Jeopardy
12. Section 80 on the 2003 Act provides:
"A person's extradition to a category 2 territory is barred by reason of the rule against double jeopardy if (and only if) it appears that he would be entitled to be discharged under any rule of law relating to previous acquittal or conviction if he were charged with the extradition offence in the part of the UK where the judge exercises his jurisdiction."
13. The Appellant's objection on grounds of double jeopardy arises out of criminal proceedings brought against him in England. These proceedings were a private prosecution brought by Federation Against Copyright Theft Limited ("FACT"). The chief objective of FACT is in the following terms:
"the protection of the interest of its members against any infringement of their copyright in cinematograph films, video films, laser discs, video CD, Digital Versatile Disc Video, off-air features (television...
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