R (Bermingham and Others) v Director of the Serious Fraud Office

Laws LJ:

INTRODUCTORY

1. There are two sets of proceedings before the court, an application for judicial review and a statutory appeal. Both are brought by the same three persons. The context of both is an accusation of fraud which has been levelled against all three by the federal prosecuting authorities in Texas. Though they are the protagonists in the proceedings, for convenience I shall call the three the defendants. (When I refer to them individually I shall for economy's sake simply use their surnames; I intend no discourtesy.) The judicial review, for which permission was granted by myself and David Steel J on 7 April 2005 after an oral and contested hearing, is brought against the refusal of the Director of the Serious Fraud Office (“the Director”) to institute a criminal investigation under s.1(3) of the Criminal Justice Act 1987 (“the 1987 Act”). The statutory appeal, or more accurately appeals, are levelled against decisions of a District Judge and an order of the Secretary of State for the defendants’ extradition to the United States of America following a request in that behalf by United States federal authorities. The decisions and order were made, and the appeals are brought, pursuant to provisions contained in the Extradition Act 2003 (“the 2003 Act”). I shall introduce all the relevant statutory materials directly. My Lord Ouseley J and I heard argument in the judicial review over two days on 15 and 16 November 2005, and reserved judgment. We then heard the statutory appeals over three days from 28 – 30 November. This is my composite judgment in both sets of proceedings.

THE STATUTES AND OTHER TEXTS

2. It is convenient to set out the relevant statutory materials, and certain other texts, before explaining the facts.

The 1987 Act

3. The Serious Fraud Office (“the SFO”) and its Director were established by the 1987 Act. S.1(3) provides:

“The Director may investigate any suspected offence which appears on reasonable grounds to involve serious or complex fraud.”

Under s.1(4) he may conduct such an investigation in conjunction with the police or with any other person who is in his opinion a proper person to be concerned. S.1(5) provides:

“The Director may -

institute and have the conduct of any criminal proceedings which appear to him to relate to such fraud…”

The 2003 Act

4. The 2003 Act created a new extradition regime. Part I, which has its genesis in the Council Framework Decision of 2002 on the European arrest warrant, contains provisions dealing with extradition from the United Kingdom to what are called “category 1” territories, that is to say territories designated by the Secretary of State. These are in effect the European Union countries which operate the European arrest warrant. It is unnecessary to describe the Part I procedures in detail. They include provision for an extradition hearing, and I should note (for it is germane to one of the arguments advanced in the judicial review by Mr Jones QC for the defendants) that s.21 requires the judge at the extradition hearing to decide whether the relevant person's extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998 (“the 1998 Act”), and if he decides that it would not, he must order the person's discharge. The material terms of s.21 are identical to those of s.87 which appears in Part II, and which I set out below.

5. Part II deals with “category 2” territories. These also are designated by order of the Secretary of State. A principal category 2 territory is the United States. So it is the provisions of Part II that are engaged in this case. I must set out a large portion of the measures it contains.

6. S.70:

“(1) The Secretary of State must issue a certificate under this section if he receives a valid request for the extradition to a category 2 territory of a person who is in the United Kingdom.

…

(3) A request for a person's extradition is valid if –

(a) it contains the statement referred to in subsection (4), and

(b) it is made in the approved way.

(4) The statement is one that the person –

(a) is accused in the category 2 territory of the commission of an offence specified in the request…

…

(8) A certificate under this section must certify that the request is made in the approved way.

(9) If a certificate is issued under this section the Secretary of State must send these documents to the appropriate judge [defined by s.139(1)(a), for the purposes of England and Wales, as a district judge designated by the Lord Chancellor] –

(a) the request;

(b) the certificate;

(c) a copy of any relevant Order in Council.”

Once the Secretary of State has sent documents to the appropriate judge under s.70, s.71(2) empowers the judge to “issue a warrant for the arrest of the person whose extradition is requested” if certain conditions are fulfilled. The first condition is that “the offence in respect of which extradition is requested is an extradition offence”. (“Extradition offence”, so far as material to the circumstances of this case, is defined by s.137 to which I shall come.) By s.72(3) a person so arrested must (unless he is bailed) “be brought as soon as practicable before the appropriate judge”. I may go to s.78:

“(1) This section applies if a person alleged to be the person whose extradition is requested appears or is brought before the appropriate judge for the extradition hearing.

(2) The judge must decide whether the documents sent to him by the Secretary of State consist of (or include) –

(a) the documents referred to in section 70(9);

(b) particulars of the person whose extradition is requested;

(c) particulars of the offence specified in the request;

(d) … a warrant for his arrest issued in the category 2 territory…

(3) If the judge decides the question in subsection (2) in the negative he must order the person's discharge.”

If the judge decides the s.78(2) question in the affirmative, he is required by s.78(4) to decide further questions, one of which is whether “(b) the offence specified in the request is an extradition offence”. If any of those questions is decided in the negative, then again by s.78(6) the judge must order the person's discharge. If they are decided affirmatively, by s.78(7) the judge must proceed under s.79 which is cross-headed “Bars to extradition”. One such bar (s.79(1)(a)) is the rule against double jeopardy. Another is specified by s.79(1)(c) to be “the passage of time”. S.82 provides:

“A person's extradition to a category 2 territory is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have committed the extradition offence…”

7. If the judge decides that none of the statutory bars specified in s.79(1) applies, he is required by s.79(4) (in the case of a person not unlawfully at large after conviction) to proceed under s.84, subsection (1) of which provides:

“If the judge is required to proceed under this section he must decide whether there is evidence which would be sufficient to make a case requiring an answer by the person if the proceedings were the summary trial of an information against him.”

But by s.84(7):

“If the judge is required to proceed under this section and the category 2 territory to which extradition is requested is designated for the purposes of this section by order made by the Secretary of State –

(a) the judge must not decide under subsection (1), and

(b) he must proceed under section 87.”

The United States is designated for the purposes of s.84 (and also for the purposes of s.71) by order of the Secretary of State. S.87 provides:

“(1) If the judge is required to proceed under this section (by virtue of section 84…) 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.”

S.88:

“(1) This section applies if at any time in the extradition hearing the judge is informed that the person is charged with an offence in the United Kingdom.

(2) The judge must adjourn the extradition hearing until one of these occurs –

(a) the charge is disposed of;

(b) the charge is withdrawn;

(c) proceedings in respect of the charge are...