R v Secretary of State for the Home Department, ex parte Norgren
| Jurisdiction | England & Wales |
| Judge | LORD CHIEF JUSTICE OF ENGLAND AND WALES |
| Judgment Date | 18 February 2000 |
| Judgment citation (vLex) | [2000] EWHC J0218-2 |
| Docket Number | Case No: C0453097 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 18 February 2000 |
[2000] EWHC J0218-2
Lord Chief Justice Of England And Wales
(Lord Bingham of Cornhill)
Mr Justice Klevan
Case No: C0453097
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (DIVISIONAL COURT)
In the matter of an application for judicial review
Royal Courts of Justice
Strand, London, WC2A 2LL
Clare Montgomery QC & James Lewis (instructed by Kingsley Napley) for the applicant
James Turner QC (instructed by the Treasury Solicitor) for the Secretary of State
Paul Garlick QC (instructed by the Crown Prosecution Service) for the
United States Government
The applicant Mr Christian Norgren, seeks judicial review of an order to proceed made by the Home Secretary on 30 September 1997 under paragraph 4(2) of Schedule 1 to the Extradition Act 1989.
The applicant is a Swedish citizen. In 1989 he was a director of Asea Brown Boveri Ltd, a multinational corporation. In his capacity as director he became aware of a proposed merger between an Asea Brown Boveri subsidiary and a Delaware corporation, Combustion Engineering Inc. It is alleged that with that knowledge, and in expectation that the merger would cause a rise in the value of the stock in Combustion Engineering, the applicant procured the purchase of Combustion Engineering stock on his own behalf on the New York and Pacific Stock Exchanges.
These purchases became known to the Securities and Exchange Commission which made a claim against the applicant, settled in January 1991 by a payment of US $3,614,500 by the applicant. On 25 May 1994 a federal grand jury sitting in the Southern District of New York issued an indictment against the applicant charging him with committing "insider trading" securities frauds, and other offences. The applicant was not then physically present in the United States, and in early 1995 the United States sought his extradition from Germany. This request was ultimately denied because the extradition treaty between the United States and Germany required that the offence charged should be a crime in both countries, and insider dealing did not become an offence in Germany until 1994.
Pursuant to an application made by the United States to the United Kingdom, the applicant was arrested on a provisional warrant on 24 June 1997. He was remanded in custody and then released on conditional bail. In August 1997 the applicant was supplied with copies of the formal extradition request made by the United States and received (after the applicant's arrest) by the United Kingdom, with all the supporting documents.
On 20 August 1997 solicitors then as now representing the applicant wrote at length to the Home Office setting out reasons why the conduct charged against the applicant was neither an extradition crime nor an extraditable offence and submitting that the Home Secretary had no power to issue an order to proceed. On 26 August 1997 the solicitors wrote to the Home Office again, informing them of the settlement by the applicant of the claim made against him by the Securities and Exchange Commission and of the United States' unsuccessful attempt to extradite the applicant from Germany.
On 4 September 1997 the Home Secretary indicated that he would not issue an order to proceed, and the Bow Street Magistrates' Court was so informed on the following day. The applicant was discharged. On 11 September 1997 the applicant's solicitors wrote to the Home Office again, referring to the decision not to issue an order to proceed and adding:
"In the unlikely event of the US Government renewing its application for Mr Norgren's extradition, we would wish to make further representations to the Secretary of State before any decision were made by him. Please confirm that in those circumstances you would notify us of any such renewed application in sufficient time to permit us to make such representations."
This letter was not acknowledged and the confirmation sought accordingly not given.
Unknown to the applicant, the United Kingdom received a further request from the United States with further supporting material. In the light of that material, and having taken advice, the Secretary of State, without reference to the applicant or his solicitors, issued his order to proceed on 30 September 1997. This recited that the applicant
"is accused of conduct within the jurisdiction of the United States of America, which had it occurred in the United Kingdom, would have constituted offences contrary to sub-sections 1(2), 1(4), 1(6) and section 8 of the Company Securities (Insider Dealing) Act 1985".
On receipt of that order, the Bow Street Magistrate on 24 October 1997 issued a warrant for the arrest of the applicant, backed for bail. The warrant described the applicant as
"an individual who was knowingly connected with a company, namely Asea Brown Boveri Ltd ("ABB"), [who] dealt on a recognised stock exchange in securities of another company, namely Combustion Engineering Inc. ("Combustion Engineering") when he had information which (a) he held by virtue of being connected with ABB …".
Succeeding paragraphs of the warrant described the applicant as "an individual who was then prohibited by the provisions of section 1 of the Company Securities (Insider Dealing) Act 1985 from dealing on a recognised stock exchange …". On 5 November 1997 the applicant's solicitors were informed of the issue of an order to proceed on 30 September. The applicant was then out of this country on business, and the warrant had not been executed. He has remained out of the country and the warrant has still not been executed.
The applicant applied for leave to move for judicial review and this was granted on the papers in January 1998. Meanwhile, the applicant had been arrested in Switzerland pursuant to a further United States request for his extradition. On 12 March 1998 an interlocutory order was made here, in effect staying the present application until the outcome of the Swiss extradition proceedings was known. This order was challenged in this court, and on 3 April 1998 the order was varied so as to permit the application to proceed
"if Mr Norgren is granted bail in Switzerland and if the terms of that bail entitle him to leave Switzerland and return to this jurisdiction or if he is discharged from custody unconditionally or if the application fails".
In December 1998 the applicant was discharged from custody in Switzerland on the refusal of the American extradition request, and the present application has been revived.
The Home Secretary's preliminary objection
The Home Secretary raises the preliminary objection that these proceedings are academic. He points out that proceedings pursuant to the Home Secretary's order to proceed and the magistrate's warrant are stalled: the applicant has remained out of the country, and shows no sign of returning; the warrant has not been executed and there is no realistic prospect of its being executed. Therefore, he argues, this application can serve no useful purpose.
The Home Secretary's frustration is understandable. If the present application is wholly successful, the order to proceed will be quashed; but if the application is unsuccessful there will still be no prospect of the order to proceed leading to a substantive hearing. So, from his point of view, the request of the United States government is likely to be thwarted in either event.
This does not, however, in our judgment render the proceedings academic in the sense defined by the House of Lords in Sun Life Assurance Co of Canada v. Jervis [1944] AC 111 at 113–114 and Ainsbury v. Millington [1987] 1 WLR 379 at 381. The United States government has not withdrawn its extradition request. The applicant challenges the lawfulness of the Home Secretary's order to proceed. The Home Secretary asserts that that order is lawful. It is of obvious importance to the applicant to be free to return to the United Kingdom without risk of arrest, and obviously advantageous to him to learn (if he can) whether he can return with impunity or not. He is understandably keen to thwart the United States government's request if he lawfully can. The present proceedings cannot in our view be regarded as futile or devoid of practical consequence.
The Home Secretary has not sought to strike out these proceedings as an abuse of the process, and would face obvious difficulties were he to do so.
In our judgment this objection must fail.
Procedural unfairness
The applicant complains that the Home Secretary was guilty of procedural impropriety and unfairness in denying him an opportunity which he was entitled to expect to make further representations before the Home Secretary made an order to proceed. In making this submission the applicant relies in particular on the detailed representations which were made on 20 and 26 August, on the Home Secretary's initial decision (communicated to the applicant and the magistrates' court) not to issue an order to proceed and on the applicant's solicitors' letter of 11 September expressing the wish to make further representations, if the United States government renewed its extradition request, before the Home Secretary made any decision.
The statutory scheme makes no provision for representations to be made by the object of an extradition request before an order to proceed is issued. R. v. Secretary of State for the Home Department, ex parte McQuire (1995) 10 Admin. LR 534 at 537 highlights the general undesirability of prolonged representations and counter-representations at this stage. There was, so far as we know, no...
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