Norris v Government of the United States of America
| Jurisdiction | UK Non-devolved |
| Judge | Lord Rodger,Lord Neuberger,Lord Bingham,Lord Brown of Eaton-Under-Heywood,Lord Carswell |
| Judgment Date | 12 March 2008 |
| Neutral Citation | [2008] UKHL 16 |
| Court | House of Lords |
| Date | 12 March 2008 |
and others
[2008] UKHL 16
Appellate Committee
HOUSE OF LORDS
Appellant:
Jonathan Sumption QC
Richard Gordon QC
Martin Chamberlain
(Instructed by White & Case LLP)
Respondent:
David Perry QC
Adina Ezekiel
Louis Mably
(Instructed by Crown Prosecution Service)
Interveners Counsel
Tim Owen QC
Duncan Penny
Kieron Beal
(Instructed by Dechert LLP)
Ordered to Report
The Committee (Lord Bingham of Cornhill, Lord Rodger of Earlsferry, Lord Carswell, Lord Brown of Eaton-under-Heywood and Lord Neuberger of Abbotsbury) have met and considered the cause Norris v Government of the United States of America and others. We have heard counsel on behalf of the appellant and respondent, and received submissions on behalf of JUSTICE.
This is the composite opinion of the committee.
The appellant, Mr Ian Norris, is a national of the United Kingdom. The Government of the United States, the respondent, seeks to extradite him to the United States to stand trial in the Eastern District of Pennsylvania on an indictment containing four counts. On 1 June 2005 Evans DJ sent the case to the Home Secretary for his decision whether Mr Norris should be extradited ( [2005] UKCLR 1205), and on 29 September 2005 the Home Secretary ordered that he should. The district judge's decision was upheld by the Queen's Bench Divisional Court (Auld LJ and Field J, [2007] EWHC 71 (Admin), [2007] 1 WLR 1730) in the decision subject to this appeal to the House.
Mr Norris worked in the carbon division of the Morgan Crucible group of companies for 29 years, retiring on grounds of ill-health in 2002 after four years as chief executive officer of the group. The parent company of the group is an English company, based in Windsor. Subsidiary companies of the group were based in North Carolina and Pennsylvania. In 1999 the respondent began to investigate allegations of price-fixing in the carbon industry in the United States. In due course the two American Morgan subsidiaries paid substantial fines. Most of Morgan's directors, officers and employees were granted immunity from prosecution as part of a plea bargain arrangement, but Mr Norris and some others were not. In September 2004 a grand jury sitting in the Eastern District of Pennsylvania returned the indictment on which it is now sought to extradite Mr Norris.
This indictment contains four counts. The first count alleges that Mr Norris conspired with certain other European producers of carbon products used in the transport, industrial and consumer product markets to operate a price-fixing agreement or cartel in a number of countries, including the United States. The agreements are said to have been made outside the United States, in Europe, Mexico and Canada, but to have been given effect in the United States. The cartel is said to have operated from at least 1989 to 2000. The charge is laid under 15 USC §1, familiarly known as the Sherman Act, which provides:
"Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several states, or with foreign nations, is declared to be illegal. Every person who shall make any contract or engage in any combination or conspiracy hereby declared to be illegal shall be deemed guilty of a felony…".
This is a statutory offence of strict liability. It does not require proof of fraud, deception or dishonesty, and count 1 of the indictment contains no such allegation. Among the extradition papers served on Mr Norris was an affidavit of Lucy McClain, a prosecutor in the Anti-Trust Division of the United States Department of Justice, who deposed that the conspirators including Mr Norris "[i]n effect … defrauded their customers by requiring that they pay higher prices than they might otherwise have paid had there been no conspiracy." This allegation formed no part of the indictment. In the charges sheet prepared by the Crown Prosecution Service on behalf of the respondent, to translate the charges in the indictment into particulars of English offences, it was alleged that Mr Norris conspired to "defraud buyers of carbon products by dishonestly entering into an agreement to fix, maintain and co-ordinate the price for the supply of carbon products in the United States of America."
Counts 2, 3 and 4 of the indictment allege conspiracy to obstruct justice, witness tampering and causing a person to alter, destroy, mutilate or conceal an object with the intent to impair the object's availability for use in an official proceeding, in violation of 18 USC §§371, 1512(b)(1) and 1512(b)(2)(B). The English charges sheet asserted that Mr Norris conspired "to pervert the course of public justice namely the process of a criminal investigation being conducted by a federal grand jury in the Eastern District of Pennsylvania into price-fixing in the carbon products industry".
A. COUNT 1
In resisting extradition on count 1 Mr Norris contends that participation in a cartel, in the absence of aggravating conduct, was not at the material time (1989-2000) a criminal offence at common law or under the statute law of this country. Accordingly, it is submitted, the conduct of which he is accused in the United States would not, at the time, have been criminally punishable here, with the result that the requirement of the Extradition Act 2003 that conduct should be criminal in both the requesting and requested states is not satisfied, and Mr Norris cannot be extradited under the Act. This submission raises a number of issues which call for separate consideration.
(1) The common law
In earlier days, as recounted by Sir William Holdsworth (A History of English Law, vol 4, 3rd ed (1945), pp 340-362, vol 8, 2nd ed (1937), pp 56-62), the prevention of abusive practices in the course of trade was the subject of parliamentary intervention and judicial decision. But the Repeal of Certain Laws Act 1772 (13 Geo 3, c.71) and the Forestalling, Regrating etc Act 1844 (7 & 8 Vict, c 24) repealed earlier statutes, leaving the way open for development of the law by the courts.
By the end of the 19th century it was established that as between master and servant, principal and agent and the buyer and seller of a business covenants in restraint of trade were, in general, void and so unenforceable, unless the restrictions they contained were shown to be reasonable in the interests of the parties themselves and reasonable in the interests of the public. The House so ruled in Nordenfelt v Maxim Nordenfelt Guns and Ammunition Co Ltd [1894] AC 535, and that ruling continues to represent the law today.
In the field of restrictive trade agreements more generally, the law was developed in a series of decisions of which five in particular were relied on in argument. It was pointed out, quite correctly, that some of these cases arose on facts different from those of the present case.
In the first of the cases, Jones v North (1875) LR 19 Eq 426, four parties were invited to tender for the supply of stone to a public authority. They made a collusive agreement by which one party was to buy stone from the other three and submit the lowest tender, two parties were to submit a higher tender and the fourth party was to submit no tender. There is nothing in the report to suggest that the public authority knew of this agreement, and every reason to suppose that it did not. The matter came before the court when the defendants, in breach of the agreement, submitted a tender, which was accepted, and the party which was to supply under the agreement brought proceedings to restrain performance by the party which had broken ranks. The action succeeded. Bacon V-C considered the plaintiff's case (p 429) as "very honest". It was submitted (p 428) that the plaintiff could not obtain equitable relief since the arrangement was a device to compel the authority, under the fiction of a public competition, to accept tenders not representing the real market price of the commodity, but this submission the vice-chancellor rejected, finding the agreement (p 430) to be "perfectly lawful", to contain "nothing illegal", and not deserving to be characterised as a conspiracy.
The case of Mogul Steamship Co Ltd v McGregor, Gow & Co (1888) 21 QBD 544 was tried at first instance by Lord Coleridge CJ without a jury. The plaintiff company claimed damages for a conspiracy to prevent it carrying on its trade between China and Europe. Its complaint was made against a group of shipowners who banded together in order to keep the trade between China and London in their own hands for their own commercial benefit and to that end offered a very low rate and an agreed rebate to shippers who shipped tea on their vessels but not, in the relevant year, on the plaintiff's, the object being to exclude the plaintiff from the trade. The efficacy of the defendants' agreement depended on its being known in the market, so there was no element of secrecy or non-disclosure, but the plaintiff attacked the agreement as wrongful and malicious, supported by bribery, coercion and inducement. The chief justice (pp 552-553) found no evidence of bribery, coercion or (in the relevant sense) inducement, and held (p 554) that the agreement was not unlawful, wrongful or malicious.
In the Court of Appeal ( (1889) 23 QBD 598) Lord Esher MR, dissenting, held the agreement to be an indictable conspiracy (p 610). But a majority of the court agreed with Lord Coleridge. Bowen LJ, in a justly-celebrated judgment, held that in the absence of aggravating features such as (pp 614, 615, 618) fraud, intimidation obstruction, violence or interference with contractual or other rights, there was nothing in the defendants' agreement or conduct to make it...
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