Norris v Government of the United States of America (No 2)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Openshaw |
| Judgment Date | 15 May 2009 |
| Neutral Citation | [2009] EWHC 995 (Admin) |
| Docket Number | Case No: CO/9362/2008 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 15 May 2009 |
[2009] EWHC 995 (Admin)
IN THE HIGH COURT OF JUSTICE DIVISIONAL COURT
ON APPEAL FROM BOW STREET MAGISTRATES COURT
(District Judge Evans)
Before : Lord Justice Laws
and
Mr Justice Openshaw
Case No: CO/9362/2008
Mr Jonathan Sumption QC and Mr Martin Chamberlain (instructed by White & Case) for the Appellant
Mr David Perry QC and Ms Adina Ezekiel (instructed by the Crown Prosecution Service)for the Government of the United States of America
Mr Hugo Keith (instructed by The Treasury Solicitor) for theSecretary of State for the Home Department
Hearing dates: 26 February 2009
LAWS LJ:
INTRODUCTORY
These are appeals, respectively brought under ss. 103 and 108 of the Extradition Act 2003 (“the 2003 Act”), against (1) the decision of District Judge Evans given on 25 July 2008 at the Bow Street Magistrates Court to send the appellant's case to the Secretary of State (s.103) and (2) the decision of the Secretary of State on 23 September 2008 to order the appellant's extradition to the United States of America (s.108). The principal ground of appeal argued by Mr Sumption QC is that the appellant's extradition would perpetrate violations of the right to respect for private and family life enjoyed by the appellant and his wife by force of Article 8 of the European Convention on Human Rights (“ECHR”), and that the District Judge at Bow Street ought so to have found, and in consequence discharged the appellant pursuant to s.87(2) of the 2003 Act. It is convenient at once to set out the material parts of s.87:
“87(1) If the judge is required to proceed under this section… [as the judge here was] he must decide whether the person's extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998.
(2) If the judge decides the question in subsection (1) in the negative he must order the person's discharge.
(3) If the judge decides that question in the affirmative he must send the case to the Secretary of State for his decision whether the person is to be extradited.”
The argument on Article 8 thus constitutes the substance of the appeal, under s.103 of the 2003 Act, against the District Judge's decision. As against the Secretary of State's order (the s.108 appeal), Mr Sumption's case is that sentencing practice in the United States, as it might affect the appellant if his extradition goes ahead, is liable to violate what may be called the specialty rule provided for by s.95 of the 2003 Act; in that case the Secretary of State is prohibited from ordering expedition, and she should have so decided. However Mr Sumption acknowledged that earlier authority in this court is plainly against him on this part of the case. Accordingly the course he adopted was not to offer substantive argument on the specialty issue (so that the s.108 appeal would fall to be dismissed in this court) but to submit that the matter was fit for the grant of a certificate and leave to appeal to their Lordships' House. I shall explain this part of the case after addressing the appeal under s.103.
FACTS GIVING RISE TO THE EXTRADITION PROCEEDINGS
The appellant is a British national born on 15 February 194He was formally Chief Executive Officer of Morgan Crucible plc, a leading international manufacturer of carbon products. Morgan Crucible was based in Windsor. It had in particular two subsidiaries which were located in the United States: Morganite Inc, based in North Carolina, and Morgan Advanced Materials and Technology Inc, based in St Mary's, Pennsylvania. I will refer to the Morgan companies compendiously as “Morgan”. As CEO the appellant had responsibility for 180 subsidiary companies in over 60 countries. Before his appointment as CEO in 1998 he had worked in Morgan's carbon division for 29 years.
In April 1999 the United States Government began investigations into allegations of price-fixing in the carbon industry in the United States. In a judgment delivered in this court on 25 January 2007 ( [2007] 1 WLR 1730, [2007] EWHC Admin 71), in circumstances which I must shortly explain, Auld LJ described the fruits of that investigation (as the United States authorities would have it) as follows, drawing on a deposition by Lucy P McClain, a trial attorney for the antitrust division of the US Department of Justice:
“e. 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 main 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.
f. Ms McClain, in her affidavit, summarised the nature and effect of this conduct, in the following words:
'The conspirators routinely sold products to their customers pursuant to their agreement to avoid price competition. In effect, the conspirators defrauded their customers by requiring they pay higher prices than they might otherwise have paid had there been no conspiracy.'
g. 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 file 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.
h. 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 of 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 further questions about what had occurred at their meetings.'
i. 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 handwritten 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.
j. 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 exculpate Morgan, but also to cast blame on a French company, also alleged to be a party to the conspiracy – a solicitation in which Mr Norris took a prominent and personal role.
k. 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.
l. In October 2002, Mr Norris retired...
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