Director of the Serious Fraud Office v O'Brien
| Jurisdiction | England & Wales |
| Judge | Lord Toulson,Lord Mance,Lord Wilson,Lord Carnwath,Lord Hughes |
| Judgment Date | 02 April 2014 |
| Neutral Citation | [2014] UKSC 23 |
| Court | Supreme Court |
| Date | 02 April 2014 |
[2014] UKSC 23
Lord Mance
Lord Wilson
Lord Carnwath
Lord Hughes
Lord Toulson
Appellant
Alun Jones QC
Colin Wells
(Instructed by Morgan Rose)
Respondent
Edward Jenkins QC
Ben Douglas-Jones
(Instructed by Serious Fraud Office)
Is a person who has been extradited to this country for trial on a criminal charge, and who prior to his extradition was guilty of contempt of court by disobeying a court order, open to punishment for his contempt although it was not the basis of his extradition? The answer depends in part on the proper interpretation of the so – called "specialty" or "speciality" provisions of the Extradition Act 2003 and partly on the law relating to contempt. The speciality principle (widely recognised in extradition law and extradition treaties) prohibits a person who has been extradited for a particular offence or offences from being dealt with by the requesting state for another offence or offences committed (or alleged to have been committed) before his extradition, subject to such exceptions as may be contained in the relevant statute or treaty.
Mr O'Brien appeals against a decision of the Criminal Division of the Court of Appeal (Gross LJ, Openshaw J and Judge Milford QC) [2012] 1 WLR 3170, upholding an order of the Common Serjeant (Judge Barker QC) committing him to prison for 15 months for contempt of court in disobeying a restraint order made against him under section 41 of the Proceeds of Crime Act 2002 (" POCA"). The appellant does not dispute that he was guilty of contempt, but he submits that his committal was unlawful by reason of the specialty provisions of Part 3 of the Extradition Act 2003. After committing the contempt the appellant fled to the USA, from where he was extradited to the UK for other reasons. It is submitted that it was not thereafter open to the English court to punish him for his earlier contempt, for which he had not been extradited.
The Court of Appeal certified the following points of law of general public importance:
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i. Whether a contempt of court constituted by breach of a restraint order made under section 41 of the Proceeds of Crime Act 2002 constitutes a civil or criminal contempt.
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ii. If the answer to i) is a civil contempt, whether Section 151A of the Extradition Act 2003 and/or article 18 of the United Kingdom-United States Extradition Treaty 2003 preclude/s a court from dealing with a person for such a contempt when that person has been extradited to the United Kingdom in respect of criminal offences but not the contempt in question.
In 2009 the Appellant came under investigation on suspicion of involvement in a large scale scheme to defraud investors, commonly known as a "boiler room" fraud. On 24 September 2009 the Common Serjeant made a restraint order against him under section 41 of POCA. It required the appellant, among other things, to make disclosure of his assets, not to remove assets from England and Wales, and to repatriate within 21 days any moveable asset in which he had an interest outside England and Wales. The order was prefaced in the usual way with a penal notice, that is, a warning that if he disobeyed the order he may be held to be in contempt of court and imprisoned, fined or have his assets seized. In this respect the order followed the standard form of freezing order in civil proceedings (originally known as a Mareva order), on which the statutory criminal restraint order provisions were modelled.
The appellant failed to comply with the restraint order and he fled the jurisdiction. On 18 December 2009 the Common Serjeant found that he was in contempt of court, issued a warrant for his arrest and adjourned the imposition of a penalty.
Six months later the Appellant was traced to Chicago. The Serious Fraud Office ("SFO") by now wanted his extradition in order to prosecute him on charges relating to the alleged fraud. They sought the assistance of the US authorities and a federal arrest warrant was issued against him. On 8 October 2010 he was arrested in Chicago and appeared before the local US District Court. He consented to his extradition in accordance with the UK's request but did not waive entitlement to the benefit of the specialty principle.
The SFO was initially under the impression that as a matter of law the appellant's contempt was criminal in nature. However, the United Kingdom-United States Extradition Treaty 2003 limited extradition to offences punishable by imprisonment for 12 months or more, and in the USA the maximum sentence for the appellant's contempt, if punishable as a misdemeanour, would have been six months' imprisonment. In those circumstances the SFO was concerned that there might be complications if the appellant were returned to the UK under an extradition order for prosecution for the boiler room fraud but at the same time was subject to a bench warrant for the earlier contempt. This concern led the SFO to apply to the Common Serjeant to set aside the bench warrant, and on 30 November 2010 he did so. On 2 December 2010 the appellant was returned to the UK. He was arrested, charged with various offences of fraud and remanded in custody.
On further consideration, the SFO came to the view that the appellant's contempt was not a criminal offence and so was not affected by the specialty principle. It therefore applied to the Common Serjeant for the appellant's committal. The appellant objected that the court had no jurisdiction to hear the application. In a judgment delivered on 1 April 2011 the Common Serjeant rejected the appellant's objection. After reviewing the authorities he concluded that the contempt was not a criminal offence, but was a civil contempt, and that the specialty principle therefore did not afford the appellant any protection.
The Court of Appeal upheld the Common Serjeant's decision. For the avoidance of doubt, the question whether the appellant's contempt constituted a civil or criminal contempt made no difference to the jurisdiction of the Criminal Division to hear his appeal, by virtue of section 13 of the Administration of Justice Act 1960 and section 53 of the Senior Courts Act 1981. Section 13 of the 1960 Act provides that an appeal shall lie from any order or decision of a court in the exercise of jurisdiction to punish for contempt of court (including criminal contempt), and that such an appeal from the Crown Court shall lie to the Court of Appeal. Section 53 of the 1981 Act provides that the Criminal Division of the Court of Appeal shall exercise the jurisdiction of the Court of Appeal under the former section in relation to appeals from orders and decisions of the Crown Court.
Mr Alun Jones QC advanced two arguments on behalf of the appellant. His primary submission was that on the appellant's extradition to the UK the Crown Court had no power to deal with him for his earlier contempt, no matter whether it constituted a civil or a criminal contempt. If he failed on that point, his second submission was that the appellant's contempt should be classified as criminal. The first point depends on the proper construction of the Extradition Act. The second depends on the law of contempt.
Part 1 of the Extradition Act deals with extradition from the UK to category 1 territories. Part 2 deals with extradition from the UK to category 2 territories. Part 3 deals with extradition to the UK from category 1 and 2 territories. The USA is a category 2 territory.
The appellant's argument is clear and simple. Part 3 should be regarded as a self-contained code governing extradition to the UK. It comprises sections 142 – 155A (section 155A, as inserted by section 42 of, and paragraph 24 of Schedule 13 to, the Police and Justice Act 2006) but the important provisions for the purposes of the appellant's argument are sections 148 and 151A (as inserted by section 76(3) of the Policing and Crime Act 2009).
Section 148(1) provides:
"Conduct constitutes an extradition offence in relation to the United Kingdom if these conditions are satisfied –
(a) the conduct occurs in the United Kingdom;
(b) the conduct is punishable under the law of the relevant part of the United Kingdom with imprisonment or another form of detention for a term of 12 months or a greater punishment."
The appellant's contempt occurred in the United Kingdom and was punishable under section 14(1) of the Contempt of Court Act 1981 with imprisonment for longer than 12 months. He submits that it was therefore an extradition offence within the definition of section 148.
Section 151A provides:
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(1) This section applies if a person is extradited to the United Kingdom from a territory which is not —
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(a) a category 1 territory, or
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(b) a territory falling within section 150(1)(b) [which does not include the USA].
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(2) The person may be dealt with in the United Kingdom for an offence committed before the person's extradition only if –
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(a) the offence is one falling within subsection (3), or
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(b) the condition in subsection (4) is satisfied.
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(3) The offences are –
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(a) the offence in respect of which the person is extradited;
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(b) an offence disclosed by the information provided to the territory in respect of that offence;
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(c) an offence in respect of which consent to the person being dealt with is given on behalf of the territory.
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(4) The condition is that –
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(a) the person has returned to the territory from which the person was extradited,
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(b) the person has been given an opportunity to leave the United Kingdom.
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(5) A person is dealt with in the United Kingdom for an offence if –
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(a) the person is tried there for it;
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(b) the person is detained with a view to trial there for it.
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