R (Norris) v Secretary of State for the Home Department

1. Ian Norris (the claimant) is a citizen of the United Kingdom. These proceedings arise from an order for his extradition to the United States of America (United States) made by the Secretary of State for the Home Department (Secretary of State) on 29th September 2005. This followed the decision by District Judge Evans on 1st June 2005 to send the case to the Secretary of State for his decision whether the claimant should be extradited. The claimant appeals against the decisions of the District Judge and the Secretary of State under the Extradition Act 2003 (the 2003 Act). With permission of Sullivan J he also seeks judicial review of the continued designation of the United States within paragraph 3 of the Extradition Act 2003 (Designation of Part 2 Territories) Order SI 2003/3334 ( the 2003 Order) and the consequent applicability of s 84(7) of the Extradition Act 2003 to the extradition proceedings brought against him.

The present proceedings

2. There are therefore three distinct but connected issues for decision.

(a) The lawfulness, or otherwise, of what at this stage we shall describe, without deciding, as the decision by the Secretary of State in March 2005 that the United States should continue to be included as a designated territory within paragraph 3 of the 2003 Order, or his failure to decide that it should be removed from the designated territories to which s 84(7) of the 2003 Act applied.

(b) The correctness, or otherwise, of the decisions of District Judge Evans that:

(i) under s 78(4)(b) of the 2003 Act the offences specified in the extradition request were “extradition offences” as defined in s 137;

(ii) for the purposes of s 79(1) and s 82, the extradition of the claimant would not be “unjust or oppressive … by reason of the passage of time”;

(iii) for the purposes of s 87, his extradition was not incompatible with his rights under Article 8 of the European Convention on Human Rights.

This statutory appeal is brought under s 103 of the 2003 Act.

(c) The correctness, or otherwise, of the subsequent extradition decision by the Secretary of State, which in any event is said to have been incompatible with the claimant's Convention rights, and inconsistent with the absence of effective speciality arrangements between the United Kingdom and the United States.

This statutory appeal is brought under s 108 of the 2003 Act

3. When the case was called on for hearing on 12th January 2006, it was apparent that for reasons beyond the control of the parties, it would be impracticable to consider the appeals against the decisions of District Judge Evans and the Secretary of State until the judgment of the Divisional Court in the case of Bermingham & ors was available. Accordingly we conducted a full hearing of the application for judicial review, and postponed consideration of the statutory appeals. Having considered and decided the issue of principle to which the application for judicial review gave rise, and given its practical importance to a number of other cases, with the consent of the parties, we decided that our judgment should be handed down before the statutory appeals were heard and decided.

The circumstances of the alleged offences

4. We emphasise at the start that this part of the judgment reflects no more than unproved and strongly contested allegations against the claimant. Equally, it is not a comprehensive narrative account of the entire case. The summary is however sufficient to demonstrate that two distinct areas of serious criminality are alleged against him.

5. After many years employment in the carbon division of Morgan Crucible Company Plc (“Morgan Crucible”), in 1998 the claimant was appointed chief executive officer. In September 2002 he retired on the grounds of ill-health. While he was employed by Morgan Crucible, it developed into one of the major global manufacturers of carbon and came to enjoy a dominant share of the market in the United States. As chief Executive Officer, the claimant was in overall responsibility for literally dozens of companies in more than 60 different countries. In contravention of the Sherman Act 1890, he was party to a conspiracy organised in the United Kingdom to operate a criminal price fixing cartel in the United States. The conspiracy was effective for many years, beginning by not later than 1989 and continuing until about 2000. The participants included Morgan Crucible itself, and two of its subsidiaries, Morganite Inc (“Morganite”), a United States corporation located in North Carolina, and Morgan Advanced Materials and Technology Inc (“MAMAT”) another United States corporation, located in St Mary's, Pennsylvania. Where necessary, the company and its subsidiaries are referred to as “Morgan”. Other members of the conspiracy included a number of major European producers of various carbon products used in the transport, industrial and consumer products market. The conspiracy operated through a number of different committees which met regularly to co-ordinate cartel activity. The claimant is alleged to have been a member of one of these committees, known as the “Summit Committee” until 1998.

6. The essence of the allegation is that there was a continuing agreement between Morgan and the other conspirators in Europe to suppress and eliminate competition by fixing, maintaining and co-ordinating the prices of certain carbon products sold in the United States. To achieve this objective they ensured that quotations offered to prospective customers were not lower than those offered by existing suppliers, co-ordinated quotations offered to customers, and they appointed a pricing co-ordinator to facilitate discussions regarding prices. Both at face-to-face meetings, and through discussions in Europe, Mexico and Canada, the conspirators organised the prices of carbon products sold in the United States, agreeing to charge prices at particular levels, or otherwise to increase or maintain them. They discussed and exchanged price quotations to particular customers so as to ensure that the prices of co-conspirators were not undercut, and they submitted collusive, non-competitive and rigged bids, or refrained from submitting bids to public transit authorities. The overall effect was that customers in the United States were required to pay higher prices for these carbon products than they would otherwise have paid.

7. On at least two occasions, one of the parties to the conspiracy, apparently inadvertently, offered lower prices to customers of Morgan in the United States than Morgan were charging. After Morgan complained, on each occasion, the party increased the price claiming that the original offer at the lower price had been miscalculated.

8. An investigation was carried out by the Anti-trust Division of the United States Department of Justice. In April 1999, in the course of the investigation into allegations of price fixing in the carbon industry in the United States, a federal Grand Jury sitting in the Eastern District of Pennsylvania required Morgan to produce certain business records. Subpoenas were served. The Federal Bureau of Investigation uncovered material which suggested that between April 1999 and August 2001 the claimant conspired with others to influence the evidence of witnesses likely to be called to give evidence before the federal Grand Jury. Indeed the investigation appeared to reveal that the claimant had also assembled a “task force” to search through sales files in Europe and remove all documents which tended to show that the company had participated in any arrangements to fix the price of carbon products. Thereafter, notwithstanding the “task force”, documents nevertheless continued to be stored in a hidden location to enable the price fixing agreement to be monitored.

9. In November 1999 at a meeting held in England and attended by a number of the conspirators, the investigation by the Anti-trust Division and the Federal Bureau of Investigation was discussed. The purpose of the meeting was to explore possible explanations and justifications for what had happened. In due course a “script”, containing false information, to be used by anyone questioned by the Anti-trust Division or the federal Grand Jury was prepared. This “script” included what purported to be full summaries of meetings held between Morgan and its competitors, describing the meetings as joint venture meetings, which deliberately omitted any mention of pricing discussions which had in fact taken place.

10. The claimant personally approved this “script”, which was then distributed to others who were then rehearsed and “questioned” about it, in preparation for any investigation. In addition to the creation of the “script”, and training in its contents, copies of fabricated hand-written summaries of meetings were provided to investigators in the United States to demonstrate that the meetings between the conspirators did not involve any contravention of United States anti-trust law.

11. In...