Norris v Government of the United States of America
| Jurisdiction | England & Wales |
| Judge | Lord Justice Auld,Mr Justice Field |
| Judgment Date | 25 January 2007 |
| Neutral Citation | [2007] EWHC 71 (Admin) |
| Docket Number | Case No: CO/8286/2005 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 25 January 2007 |
[2007] EWHC 71 (Admin)
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
The Right Honourable Lord Justice Auld and
The Honourable Mr Justice Field
Case No: CO/8286/2005
Mr Richard Gordon QC & Mr Martin Chamberlain for the Claimant
Mr David Perry QC and Miss Adina Ezekiel for the First Respondent
Mr Khawar Qureshi QC for the Second Respondent
Mr David Vaughan QC, Mr Thomas de la Mare and Ms Sarah Ford for the First Intervening Party
Mr Richard Lissack QC, Mr James Flynn QC and Ms Eleanor Davison for the Second Intervening Party
Lord Justice Auld:
Introduction and the issues
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.
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 1 st 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 29 th September 2005 to extradite him was lawful.
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.
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").
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
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".
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.
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.
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.
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.
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."
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.
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...
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