R (Allison) v State for the Home Department
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE SILBER |
| Judgment Date | 04 July 2001 |
| Neutral Citation | [2001] EWHC 506 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3475/2000 |
| Date | 04 July 2001 |
[2001] EWHC 506 (Admin)
Lord Justice Rose and
Mr Justice Silber
Case No: CO/3475/2000
IN THE HIGH COURT OF JUSTICE
(ADMINISTRATIVE COURT)
QUEENS BENCH DIVISION
Mr K M Qureshi (instructed by the Treasury Solicitor appeared for the Respondent)
Mr N Saunders (instructed by the CPS and appeared for the Government of the United States of America)
This is the judgment of the Court.
Introduction
The applicant, who is a Nigerian national, seeks Judicial Review of the decision of the Secretary of State for the Home Department ("the Secretary of State") communicated by a letter dated 27 June2000 ("the decision") to make an order to return the applicant to the United States of America ("the order") pursuant to requests for extradition emanating from the authorities in that country ("the request"). Permission to seek Judicial Review was granted by Moses, J.
The applicant was charged in Florida with conduct that if it took place in the United Kingdom, would amount to offences under the Computer Misuse Act 1990. He was also charged in Maryland with conduct that, if it took place in the United Kingdom, would amount to the offences of conspiracy, drug money laundering and handling stolen goods. There was a third request emanating from authorities of the State of Virginia in respect of a conviction for credit card fraud but that is no longer effective as the applicant has already served the sentence imposed in Virginia during his time in Brixton Prison. The grounds of the applicant are directed towards the decision relating to the Maryland charges.
Those charges are:
"1. That [the applicant] on or about 25 July 1994 conspired with Christopher Omotunde and others to be concerned in an arrangement whereby the retention or control of US$30,000 on behalf of Sunday Awoyemi being the proceeds of drug trafficking, was facilitated by concealment, removal from the United States of America, transfer to nominees or otherwise.
2. That [the applicant] between 1 January 1993 and 1 January 1995 conspired with Christopher Omotunde and others to acquire or possess the proceeds of drug trafficking.
3. That [the applicant] between 1 January 1988 and 1 July 1994 conspired with Bobby Bashorun and others to acquire or possess the proceeds of drug trafficking.
4. That [the applicant] on a date unknown handled stolen goods, namely the proceeds of US$10,000 from Christopher Omotunde, knowing or believing the same to represent the proceeds of credit card fraud."
Chronology
On 18 March 1997, the applicant was arrested on a provisional warrant for the Florida offence. In May 1997, the Divisional Court dismissed applications for habeas corpus arising out of the provisional arrest. In May and June 1997, the Secretary of State issued Orders to Proceed in respect of the Florida and Maryland offences. On 11 June 1997, the applicant was committed by the Bow Street Magistrates Court on one out of three of the Florida charges (namely the conspiracy to cause unauthorised modification of computer material) but it was held that the remaining two charges were not extradition offences.
On 1 August 1997, the Bow Street Magistrate committed the applicant in respect of the four Maryland offences. On 18 August 1997, the applicant commenced habeas corpus proceedings in respect of the Maryland charges and at the same time the Government of the United States of America ("the USA") sought Judicial Review of the decision made on 11 June 1997 not to commit the applicant in respect of two of the Florida charges.
On 13 May 1998, the Divisional Court dismissed both the habeas corpus application and the application of the USA in respect of the two Florida charges, which the Magistrate had held not to be extradition offences (see [1999] QB 847). Subsequently on 15 July 1998, the House of Lords allowed the appeal of the USA and held, contrary to the view of the lower courts, that those two Florida charges were extradition offences; they remitted the matter to Bow Street Magistrates Court for reconsideration.
Pursuant to an invitation to make representations against his return to the USA, the applicant's Solicitors sent three sets of representations to the Secretary of State on 6 August 1999, 29 November 1999 and 26 April 2000 and this led to the decision, which is the subject of the present application.
The Issues
Miss Montgomery Q.C. on behalf of the applicant makes two points. First, she contends that the Secretary of State in making the decision ignored a material fact set out in the representations, which was that the applicant had a defence to the charge of conspiring to launder drug money ("the laundering drug money issue"). Second, she complains that the Secretary of State acted irrationally and unreasonably in refusing to obtain assurances from the USA on the issue of specialty ("the specialty issue"). We were reminded that in considering these issues, we had to bear in mind the comments of Sir Thomas Bingham M.R. in R..v. Ministry of Defence, Ex parte Smith [1996] Q.B.517 at 534E-F in which he agreed with counsel's formulation of the approach that should be adopted by the courts to the issue of irrationality:
"The court may not interfere with the exercise of an administrative discretion on substantive grounds save where the court is satisfied that the decision is unreasonable in the sense that it is beyond the range of responses open to a reasonable decision-maker. But in judging whether the decision-maker has exceeded this margin of appreciation the human rights context is important. The more the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable in the sense outlined above"
The Laundering Drug Money Defence Issue
Miss Montgomery says that no Secretary of State could rationally surrender a person for trial in a foreign country for conduct that would not be punishable in the United Kingdom. Thus, she says, it is necessary to see if there would be a defence to charges 2 and 3. By virtue of Section 1(1) of the Criminal Law Act 1997, an agreement cannot give rise to a statutory conspiracy punishable in England and Wales unless the agreement, if carried out in accordance with the parties' intentions, will necessary amount to or involve the commission of any offence or offences by one or more of the parties to the agreement.
Her argument is that an agreement which, if carried out in accordance with the intention of the parties, would not involve the commission of the offence if the agreed conduct gives rise to a statutory defence is incapable of being a crime. The claimant was charged in charges 2 and 3 with conspiracies in connection with the acquisition,...
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