Maxwell-King v United States of America
| Jurisdiction | England & Wales |
| Judge | MR. JUSTICE LLOYD JONES,LORD JUSTICE KEENE |
| Judgment Date | 07 December 2006 |
| Neutral Citation | [2006] EWHC 3033 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/8922/2006 |
| Date | 07 December 2006 |
[2006] EWHC 3033 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Lord Justice Keene and
mr. Justice Lloyd Jones
Case No: CO/8922/2006
Ms. Clair Dobbin (instructed by Osborn, Abas and Hunt Solicitors ) for the Appellant
Ms. Adina Ezekiel (instructed by Crown Prosecution Service, Extradition Department ) for the Respondent
Hearing date: 22 nd November 2006
Mr. Paul Maxwell-King ("the Appellant") appeals pursuant to section 103, Extradition Act 2003 ("the 2003 Act") against the decision of District Judge Anthony Evans made on 14 th August 2006 to send his case to the Secretary of State.
The Government of United States of America ("the Respondent") has submitted three separate requests for the extradition of the Appellant, his former wife Karen Maxwell-King and Steven Edmondson, respectively, who are jointly accused in the United States 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 United States based company, free of charge.
All three appealed pursuant to section 103 of the 2003 Act against the decisions of District Judge Evans to send the case to the Secretary of State. However, on the 21 st November 2006 the Respondent withdrew its request for the extradition of Mrs. Maxwell-King. Accordingly, on the 22 nd November 2006 the Divisional Court made an order pursuant to section 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 the 21 st November 2006, Mr. Edmondson has withdrawn his appeal. Accordingly, at this hearing we have been concerned only with the appeal of the Appellant.
The United States of America has been designated a category 2 territory pursuant to section 69 of the 2003 Act. Accordingly, this application for extradition is governed by Part 2 of the 2003 Act.
The Extradition Proceedings
On the 1 st October 1999, United States Magistrate Judge Thomas D. Wilson signed a warrant for the arrest of the Appellant. On the 14 th May 2002 a grand jury returned an indictment charging the Appellant and others with criminal offences against the laws of the United States of America. On the 21 st May 2002 a further warrant for the arrest of the Appellant was issued. This warrant superseded that issued on the 1 st October 1999. The request for the extradition of the Appellant was supported by an affidavit sworn on the 14 th October 2004 by Ernest F. Peluso, the Assistant United States Attorney for the Middle District of Florida.
On the 23 rd November 2004 the Secretary of State issued a certificate under section 70 of the 2003 Act in respect of the Appellant. The Appellant was arrested on the 22 nd 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 the 4 th 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 section 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 United States of America was barred by the rule against double jeopardy. On the 19 th July 2006 District Judge Anthony Evans rejected all those submissions. On the 7 th August 2006 District Judge Anthony Evans heard submissions and evidence on the Appellant's plea that his extradition to the United States was barred by reason of passage of time. On the 14 th 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 the 14 th August 2006 the Appellant's case was sent to the Secretary of State to await his decision as to whether he should be extradited.
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 United States.
The factual background to this request for extradition, as alleged by the Respondent, is as follows. In early 1997, United States 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.
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 United Kingdom. In April 1999, a United States 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 the 13 th 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 the 30 th 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 United States from the United Kingdom 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 United Kingdom authorities.
Extradition Offences.
The indictment returned by a grand jury on the 14 th May 2002 charging the Appellant and others with criminal offences against the laws of the United States of America includes counts alleging conspiracy to defraud or to commit an offence against the laws of the United States of America, 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.
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 section 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 United States of America.
(2) A conspiracy with others to sell unauthorised decoders in the United States of America.
The District Judge concluded that the offences specified are extradition offences within section 78(4)(b). In the light of the reformulated charges the Appellant no longer seeks to appeal on this ground.
Double Jeopardy.
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 United Kingdom where the judge exercises his jurisdiction."
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...
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