Paul Dunham and Another v Government of the United States

JurisdictionEngland & Wales
JudgeMr Justice Simon,Lord Justice Beatson
Judgment Date19 February 2014
Neutral Citation[2014] EWHC 334 (Admin)
Date19 February 2014
CourtQueen's Bench Division (Administrative Court)
Docket NumberCase No: CO/12778 and 12788/2013

[2014] EWHC 334 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Beatson

and

Mr Justice Simon

Case No: CO/12778 and 12788/2013

Between:
(1) Paul Dunham

and

(2) Sandra Dunham
Appellants
and
Government of the United States
Respondent

Ben Watson (instructed by Kaim Todner) for Mr Dunham

Rachel Barnes (instructed by Kaim Todner) for Mrs Dunham

Peter Caldwell (instructed by CPS Extradition Unit) for the Respondent

Mr Justice Simon

Introduction and background

1

By requests dated 1 May 2012, the Government of the United States of America ('the US Government') sought the extradition of the Appellants, who are husband and wife, in order that each of them should stand trial for offences of dishonesty in the United States of America.

2

The USA is designated as a Category 2 territory; and the request is therefore governed by the provisions of Part 2 of the Extradition Act 2003 ('the 2003 Act'); and the extradition requests were certified pursuant to s.70 of the 2003 Act by the Secretary of State for the Home Department on 18 May 2012.

3

There was a hearing before District Judge Zani at Westminster Magistrates Court on 13 June 2013; and, on 8 July, he ruled that there were no bars to extradition, and sent the case to the Secretary of State for a decision on whether the Appellants should be extradited. On 23 August 2013 the Secretary of State ordered the Appellants' extradition.

4

This is the appeal from the decision of the District Judge. The appeal against the Secretary of State, who was joined as Second Respondent, has been dismissed by consent; and the only Respondent to this appeal is now the US Government.

5

Similar issues arise on this appeal as arose in the Magistrates Court: whether the extradition should be barred under s.87 of the 2003 Act, on the basis that to order the Appellants' extradition would be a disproportionate infringement of their rights under article 8 of the European Convention on Human Rights, as secured by the Human Rights Act 1998.

6

The facts as found by the District Judge at §6 of his decision can be briefly summarised. Both appellants worked for a US company, Pace Inc, from 2002 to 2009. Pace Inc is an electronics company (specialising in soldering equipment), with offices both in the USA and in the United Kingdom. The Appellants are alleged to have defrauded their employer by the dishonest misuse of company credit cards and by rendering dishonest claims for expense on the basis that they had been incurred on the companies' behalf.

7

It is alleged that, having been given company credit cards to be used for company business, Mr Dunham charged personal expenditure to these cards. It is also said that he disguised personal expenses as company business expenses; that both Appellants received reimbursement for these expenses from the Pace Inc and Pace Europe by the rendering of false documentation; and that the same sums were claimed in respect of the same expenses from both the US and the UK companies. The total amount involved is said to be of the order of US $1m. The sums are alleged to have been transferred into a bank account in their joint names in Maryland, and to have been subsequently transferred and spent.

8

It is common ground that the legal principles which apply on this appeal are to be derived from two decisions of the Supreme Court: Norris v. USA (No.2) [2010] UKSC 9 [2010] 2 AC 487 and HH v. Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25 [2013] 1 AC 338, in which the Supreme Court considered how the balance is to be drawn when the Court is being invited to decide that extradition should be refused on the basis of the gravity of the interference with a Requested Person's article 8 rights.

9

In summary, extradition will be refused if it would result in a disproportionate interference in a person's family and/or private life, see HH and the judgment of Lady Hale at [8], where five propositions of practical significance to the present case were set out.

(1) The question is always whether the interference with the private and family lives of the Requested Party and other members of his or her family is outweighed by the public interest in extradition (sub-§3).

(2) There is a constant and weighty public interest in extradition: that people accused of crimes should be brought to trial, and that there should not be safe havens to which people can flee in the belief that they will not be sent back (sub-§4).

(3) That public interest always carries great weight, although the weight attached to it varies according to the nature and seriousness of the crimes involved (sub-§5).

(4) The delay between the time the crimes have been committed and the request for extradition may both diminish the weight to be attached to the public interest and increase the impact upon private and family life (sub-§6).

(5) It is likely that the public interest in extradition will outweigh the article 8 rights of the Requested Person and the family unless the consequence of the interference with the article 8 rights will be exceptionally severe (sub-§7).

10

Before considering the detailed arguments in the present case, it is convenient to highlight two points.

11

First, counsel referred to a number of cases whose relevance was not always apparent. Many were cited as instances of the application of well-established principles and, since the assessment of the weight to be attached to the importance of the public interest in extradition and the countervailing article 8 rights is sensitive to the particular facts of the case, the citation of extensive authority where the decision depended on the facts, was not always as helpful as the parties may have thought.

12

Secondly, the evidence and the arguments on appeal bore little resemblance to those before the District Judge. The Court was told that the reason for this was that the significance of Mr Dunham's medical condition, and the impact of detention on his mental and physical well-being, was only appreciated at a relatively late stage.

13

The emergence of late evidence gives rise to a tension between two applicable principles: finality in legal proceedings and recognition that the impact of extradition on the human rights of a Requested Person may not remain constant.

14

The first of these two principles emerges clearly from the judgment of Sir Thomas Bingham MR in Barrow v Bankside Agency Limited [1996] 1 WLR 257, at p.260.

The rule in Henderson v Henderson (1843) 3 Hare 100 is very well known. It requires the parties, when a matter becomes the subject of litigation between them in a court of competent jurisdiction, to bring their whole case before the court so that all aspects of it may be finally decided (subject, of course, to any appeal) once and for all. In the absence of special circumstances, the parties cannot return to the court to advance arguments, claims or defences which they could have put forward for decision on the first occasion but failed to raise. The rule is not based on the doctrine of res judicata in a narrow sense, nor even on any strict doctrine of issue or cause of action estoppel. It is a rule of public policy based on the desirability, in the general interest as well as that of the parties themselves, that litigation should not drag on for ever and that a defendant should not be oppressed by successive suits when one would do. That is the abuse at which the rule is directed.

15

It was articulated more recently by Sir Anthony May PQBD in Szombathely City Court and others v. Roland Fenyvesi and another [2009] EWHC 231 (Admin) at [3] and [6].

It is normally incumbent on litigants in first instance courts or tribunals in which evidence is adduced to advance their whole case at first instance and to adduce all the evidence on which they want or need to rely. In most cases, the purpose and function of an appeal is to review the decision of the lower court upon the evidence which was adduced before the lower court. An appeal court is not generally there to enable a litigant who has lost in the lower court to advance their case upon new and enlarged evidence which they failed to adduce in the lower court …

The discretion to admit fresh evidence afforded by statute and rule in criminal and civil appeals respectively, although it remains a discretion, is not unregulated. Intrinsically the principles of justice would expect the court to ask why the evidence was not adduced at first instance, and whether there is a good reason or excuse for not doing so — for the policy is that litigants should normally adduce their whole case and evidence at first instance …

16

The second principle is inherent from the Court's obligation as public body to consider human rights issues at all stages of the judicial process, notwithstanding that the issue was not raised before the fact-finding tribunal (in this case the District Judge), and therefore disputes of fact have not been resolved by hearing the evidence.

17

This tension is reflected in two short passages taken from decisions of this Court.

First, the observations of Collins J in R (Adedeji) v. Public Prosecutor's Office Germany [2012] EWHC 3237 (Admin) at [10],

It would be in my judgment wrong to say simply because a point was not spotted below it cannot now be raised.

Secondly, the observations of Sir John Thomas PQBD in Jones v, Government of the USA [2012] EWHC 2332 at [20],

This court cannot but emphasise yet again that arguments on extradition are to be properly advanced before the District Judge.

18

In general, the difficulties...

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