Case No. CO-934-2005-&-CO-3620-2005

i) “Extradition Offence”81.The prosecutor’s case relies on s.137(2) of the 2003 Act. The critical concept in s.137 is the defendant’s “conduct” said to constitute the putative extradition offence. However in his skeleton argument Mr Jones advanced a submission, based on the majority decision of the House of Lords in Aronson [1990] 1 AC 579, that there had to be a strict correspondence between the ingredients of the crime alleged in the request and an equivalent crime acknowledged by the law of England, if the former was to qualify as an extradition offence. That submission has been abandoned following their Lordships’ decision in Armas UKHL 67, [2005] 3 WLR 1079, on which, however, Mr Jones now relies for a different argument.82.Armas concerned an extradition request by the Belgian authorities under Part I of the 2003 Act. The House was called on to decide whether the conduct alleged in the European arrest warrant which had been issued fell within s.65. There was an argument about the applicability of s.65(2) to the case, which I can pass over. The relevance of the case arises from their Lordships’ construction of s.65(3)(a), whose language is identical with that of s.137(2)(a) save of course that it refers to category 1 and not category 2. It will be recalled that s.137(2)(a) provides:“The conduct constitutes an extradition offence in relation to the category 2 territory if these conditions are satisfied – (a) the conduct occurs in the category 2 territory”.Part of the conduct alleged in Armas took place in Belgium (the category 1 territory), part in the United Kingdom. It was submitted that because the conduct charged did not occur wholly within Belgium the condition in subsection (3)(a) was not satisfied. Lord Bingham of Cornhill stated (paragraph 17):“I cannot, however, accept that subsection (3) is to be read as requiring that all the conduct complained of should have occurred in the category 1 territory. The subsection does not so provide, and the qualification that no part of the conduct should have occurred in the United Kingdom, expressly stipulated in subsections (2)(a), (5)(a) and (6)(a), is not found in (3)(a). It must be inferred that that qualification was not intended. It is enough, under subsection (3)(a), if some of the conduct complained of or relied on occurred in the category 1 territory.”Their other Lordships agreed. Lord Scott of Foscote said (paragraph 49):“[T]he request can, in principle at least, be brought under section 65(3) of the Act – because it does not matter for the purposes of that subsection that the conduct took place not only in Belgium but also in the United Kingdom.”83.In this case, likewise, part of the conduct alleged by the prosecutor took place in the category 2 territory, part in the United Kingdom. Mr Jones’ new argument is founded on a passage at paragraph 40 in Armas in the speech of Lord Hope of Craighead. The submission is that in a case where the conduct giving rise to the charge occurred both in the relevant category 2 territory and in another jurisdiction, s.137(2)(a) is only met if the conduct in the other jurisdiction was “targeted” at the category 2 territory: that is to say, if the alleged crime’s harmful effects were felt there. Here, it is said, the harm was not in the United States (the category 2 territory) but here: the victim was the Bank, a UK institution.84.This submission rests on a misunderstanding of Lord Hope’s reasoning. The passage in paragraph 40 on which reliance is placed reads thus:“The conduct must occur ‘in’ the category 1 territory if the condition which is set out in these paragraphs to be satisfied. But a purposive meaning must be given to the word ‘conduct’ in this context. It would impose a wholly artificial restriction on the extradition process if it were to be taken as meaning that all the conduct which resulted in the offence must have taken place exclusively within the category 1 territory. Actings elsewhere will be sufficient to constitute conduct in that territory so long as their intended effect was to bring about harm within that territory.”In my judgment, with great respect, this reasoning does not show that where there is relevant conduct both within the category 1/2 territory and elsewhere, the case is outside s.65(3)(a)/137(2)(a) unless the conduct elsewhere is directed at, or has harmful effects in, that territory. That would be at variance with Lord Bingham’s approach with which Lord Hope agreed in terms (paragraph 19). Their other Lordships agreed with Lord Bingham and Lord Hope and made no distinction between their opinions. As it seems to me Lord Hope’s reference to “intended effect” looks to the particular case where the defendant’s acts, having in fact taken place elsewhere, can only qualify as amounting to conduct within the category 1/2 territory on the footing that that was the place where their malign effects were felt. So much is illustrated by the graphic example given by Lord Keith of Kinkel in DPP v Stonehouse [1978] AC 55, 93, cited by Lord Hope at paragraph 36, of the man standing on the Scottish bank of the River Tweed who with murderous intent fires a rifle at someone on the English bank: he would be guilty of murder or attempted murder under English law. But where the defendant’s acts – the relevant conduct – substantially took place in the category 1/2 territory as well as elsewhere, there is no need to resort to such a purposive approach. 85.In such a case the simple position is that the relevant conduct occurred in the category 2 territory within the meaning of s.137(2)(a). On its true construction the subsection does not require it to be shown that the whole of the conduct occurred there. That approach is, I apprehend, in keeping with the decision in Somchai [1991] 1 AC 225; I need not with respect cite the text. One may contrast the terms of s.137(4)(a) – “the conduct occurs outside the category 2 territory and no part of it occurs in the United Kingdom”. S.137(5)(a) is in the same terms. The distinction is the same as that drawn by Lord Bingham in paragraph 17 of Armas between the different subsections of s.65. 86.Here there is no contest but that the relevant alleged conduct substantially took place in the category 2 territory, the United States, as well as in the United Kingdom. S.137(2)(a) was satisfied, and the District Judge was right so to hold on 25 June 2004. ii) Delay87. The test under s.82 is whether “it would be unjust or oppressive to extradite [the defendant] by reason of the passage of time since he is alleged to have committed the extradition offence”. The relevant period in the present case runs from 31 January 2000 (the first date pleaded in the conspiracy charge drafted to reflect the Texas indictment) to the hearing of the appeal in this court (Kakis [1978] 1 WLR 779, 782G). In my judgment this submission falls to be rejected on the short ground that there is no reason to suppose that the judge was wrong to hold on 15 October 2004 that it was not shown that any defence witness might be unavailable owing to the passage of time, and that assertions of “oppression” were if anything relevant to the argument on abuse rather than delay. 88.The content of the terms “unjust” and “oppressive” may no doubt overlap, but authority shows that what is “unjust” refers primarily to the risk of prejudice to the accused, arising from delay, in the conduct of the trial itself; what is “oppressive” relates to hardship to the accused arising from changes in his circumstances during the period falling to be considered: Kakis, per Lord Diplock at 782H. Under the s.82 heading I shall address Mr Jones’ submission that his clients were prejudiced because the passage of time had occasioned difficulties in relation to the evidence on which they might rely, so that their extradition would be “unjust”. For his part Mr Jones canvassed a number of other matters under s.82. Some of these might no doubt properly be canvassed under the “oppressive” rubric in s.82. I find it more convenient to address them under headings (iii) and (iv), abuse and human rights.89.In his ruling of 15 October 2004 District Judge Evans stated:“The defence did not identify any potential witness that they might wish to call who might be unable to attend by reason of the passage of time.”Mr Jones’ copious references to the transcript of the evidence before the judge have not begun to undermine this conclusion. He referred to passages in the defendant Bermingham’s testimony given on 28 September 2004 in which he named various potential witnesses – Clement, Bruen, McCulloch, Hing, Learmonth, Copcroft (or Cockcroft), Potter, O’Donnell, Crump – whom he would wish to call. But there was no whisper of a suggestion that by reason of the passage of time they would not be available. Other categories of witnesses were mentioned, without naming them; again, no suggestion that they could not testify. I should notice that there was evidence before the District Judge from the defendants’ expert Mr McNabb that evidence might be given by video-link at the discretion of the court.90.There is nothing in the distinct argument under s.82 based on the suggestion of witness difficulties. In truth, Mr Jones’ complaints lie elsewhere.iii) Abuse91.Mr Jones excoriates the US government’s refusal to disclose any of the evidential material it possessed beyond what was contained in the extradition request. He seeks to imbue this circumstance with a miasma of bad faith: he submits there is now evidence which “fundamentally undermines the proposition that [the Bank] was defrauded of $7,000,000”. The reference is to the FSA summary attached to Mr Crump’s letter of 13 June 2002. Further, Mr Jones’ skeleton argument (paragraphs 43 ff), which he supported before us, proceeds to accuse the American authorities of “unjustified and inexcusable delay” in seeking the defendants’ extradition. The delay, it is said, has denied them safeguards they would have enjoyed under the 1989 Act consisting (a) in the Secretary of State’s discretion whether or not to order extradition “and the power to negotiate the venue of trial with a requesting State” and (b) the requirement that the requesting State should demonstrate a case to answer on the facts. Here too the suggestion is in truth one of bad faith – a deliberate delay to await the new statute. 92.We had the benefit of submissions from counsel on the question whether the District Judge conducting an extradition hearing under the 2003 Act possessed any jurisdiction to refuse the order sought on the ground that the proceedings were an abuse of the process of the court on the part of the prosecutor. In fact Mr Hardy for the United States government was in agreement with Mr Jones that the jurisdiction existed; but since it is indeed a matter of jurisdiction, we are no doubt bound to determine the question for ourselves. 93.In Atkinson [1971] AC 197 the House of Lords held that under the Extradition Act 1870 the magistrate to whom application for a committal was made had no power to refuse on the ground that natural justice so required. Lord Reid accepted (at 232) that there can be cases where “it would clearly be contrary to natural justice to surrender a man although there is sufficient evidence to justify committal”. But he held that the Secretary of State’s discretionary power to refuse to surrender a man committed by the magistrate was an adequate safeguard, it being the legislature’s intention that the power should be used “whenever in his view it would be wrong, unjust or oppressive to surrender the man”. Then he said (233):“If I had thought that Parliament did not intend this safeguard to be used in this way, then I would think it necessary to infer that the magistrate has power to refuse to commit if he finds that it would be contrary to natural justice to surrender the man. But in my judgment Parliament by providing this safeguard has excluded the jurisdiction of the courts.”94.In Schmidt [1995] 1 AC 339 the House of Lords had to consider an argument that extradition proceedings under the 1989 Act were vitiated by abuse of process: the applicant had been induced to come to the United Kingdom by a ruse on the part of a police officer. Lord Jauncey referred to “the principal safeguard” resting in “the general discretion conferred upon the Secretary of State by Parliament in section 12” (379A-B), and held, following Atkinson, that the magistrate acting under the 1989 Act possessed no abuse jurisdiction (379B). Their other Lordships agreed.95.In Gilligan [2001] 1 AC 84 their Lordships’ House was concerned with proceedings brought under the Backing of Warrants (Republic of Ireland) Act 1965. In one of the two linked cases heard by their Lordships the Irish authorities had applied to a stipendiary magistrate for an order that the applicant, who was wanted on 18 arrest warrants issued in Dublin and had also been arrested and charged with offences in England, be handed over to the Garda. The applicant contended that the application was abusive, claiming among other things that he had been improperly arrested in England so as to hold him while the Irish charges were drawn up. It was held that the magistrate possessed no abuse jurisdiction. Lord Steyn referred (97G) to the ability of the Irish courts to guard against abuses; this was seen as an analogue to the protection in extradition cases under the 1989 Act afforded by the Secretary of State’s discretion, which as I have shown was critical in Schmidt.96.In my judgment the reasoning in these cases of high authority has no application in the context of the 2003 Act. Under its provisions the Secretary of State has no statutory discretion to refuse extradition. The safeguard emphasised in Atkinson and Schmidt is lacking. Moreover in Part I cases, and Part II cases where the category 2 territory has (like the United States) been designated for the purpose of s.84, the prosecutor is not required to establish a prima facie case on the evidence. Under the old law that requirement was itself an important discipline. Its absence makes the need for a residual abuse jurisdiction all the plainer.97.I should not leave the point without considering the nature of the juridical exercise involved in concluding, as I would, that the judge conducting an extradition hearing under the 2003 Act possesses a jurisdiction to hold that the prosecutor is abusing the process of the court. Lord Reid, in the passage from Atkinson which I have cited, would if necessary have inferred that the magistrate had power to refuse to commit. Now, it is plain that the judge’s functions under the 2003 Act, and those of the magistrate under the predecessor legislation, are and were wholly statutory. He therefore possesses no inherent powers. But that is not to say that he may not enjoy an implied power. The implication arises from the express provisions of the statutory regime which it is his responsibility to administer. It is justified by the imperative that the regime’s integrity must not be usurped. Where its integrity is protected by other powers, as in Atkinson, Schmidt and Gilligan, the implication is not justified. But under the 2003 Act that is not the case. The implication of an abuse jurisdiction – Lord Reid’s inference – follows.98.But the question whether abuse is demonstrated has to be asked and answered in light of the specifics of the statutory scheme. Accordingly, subject to an important qualification which I will explain, no finding of abuse can be justified (in a case like the present where the category 2 territory has been designated for the purpose of s.84) by the prosecutor’s refusal or failure to disclose evidential material beyond what was contained in the extradition request. The reason is straightforward. In such an instance, as I have shown, the prosecutor does not have to establish a case to answer. Evidence going to whether there is in fact a case to answer is therefore not relevant to the court’s task. Mr Jones submitted that while no doubt the prosecutor was not required to produce evidence of merits, if he failed to do so he would or should be at peril of adverse rulings from the court under s.82 or s.87 of the 2003 Act. Here, Mr Jones makes a like mistake to the major flaw in his argument in the judicial review: his submission looks for a statutory regime which Parliament has chosen not to provide. The prosecutor cannot be penalised, under s.82, 87, or by any other route, for limiting the material he places before the court to what is required for the proper execution of the court’s function under ss.78 ff. The observations of Ognall J in Lee [1993] 1 WLR 1294, 1298, are in point. I need not, with respect, cite the text. 99.Likewise a defendant cannot ordinarily complain of abuse on grounds that if only the prosecutor had acted more promptly the 1989 Act, and not the 2003 Act, would have governed the proceedings, and in that case he (the defendant) would have enjoyed the right to test the prosecutor’s case and persuade the court, if he could, that there was no case to answer. We cannot entertain any kind of presumption that where in an extradition case the facts arose in the life of the 1989 Act, the defendant should ordinarily have the benefit of that Act and not be fixed with the effects of the supervening statute. Such a presumption would be unconstitutional: it would imply a value judgment by this court that the scheme of the earlier legislation was to be preferred to that of the 2003 Act. We have no authority to propound any such judgment.100.I have referred to an important qualification. It applies to both of the points I have discussed: the prosecutor’s failure to give more disclosure, and his failure to facilitate the defendants’ enjoyment of the relative benefits of the 1989 Act. The prosecutor must act in good faith. Thus if he knew he had no real case, but was pressing the extradition request for some collateral motive and accordingly tailored the choice of documents accompanying the request, there might be a good submission of abuse of process. Again, if he knew he could not (or perhaps, could not without great difficulty) make out a prima facie case and so deliberately delayed the extradition process until the 1989 Act had been safely superseded by the 2003 Act, that also might be held to be abusive.101.These are in effect the accusations made by Mr Jones in the present case. He says the FSA summary attached to Mr Crump’s letter of 13 June 2002 was deliberately withheld so as to conceal a fatal (at least a very grave) weakness in the prosecution case. He says the extradition request was deliberately delayed until the provisions of the 2003 Act were in force. I think he put these points a little more delicately; but if he did, there is no virtue in being willing to wound but afraid to strike. And his argument on abuse must be as stark as I have expressed it, or it goes nowhere. Underlying both accusations is the suggestion of an ulterior motive on the part of the prosecutor in proceeding against the defendants. It is articulated (though only by reference to what Mr Crump of the FSA might have believed) at paragraph 8 of Mr Jones’ supplementary skeleton argument in the judicial review dated 11 November 2005, which I have already cited:“… [T]he prosecution of the Appellants had been brought for the ulterior purpose of obtaining evidence against people involved in Enron.”102.As for the FSA summary, Mr Jones of course places particular emphasis on the statement it contains that “FSA asked RBS to undertake a revaluation of its stake in Swap Sub at the time of the sale to Southampton LP. This has resulted in a figure very much in line with the original”. He says, and it may well be right, that this document was in the hands of the American authorities in 2002 but was not disclosed to the Grand Jury which returned the Texas indictment. I have already foreshadowed Mr Jones’ case on these aspects in paragraph 34. 103.Has Mr Jones shown that the FSA summary was deliberately withheld from disclosure in the extradition application documents? In the course of the proceedings before us, specific enquiry was made of Mr Hanusik, which yielded a letter from the Department of Justice dated 29 November 2005. Mr Hanusik has no recollection of having seen the document. He also indicated that had he seen it, “he would not have considered it damaging to his case. Further, Mr Hanusik proposes that it is not surprising that those who were unaware of the true value of Swap Sub, and thus sold it for far less than its actual value, might be motivated to justify the sale figure by later providing a low reevaluation… It is clear that the only people at NatWest who knew the true value of SwapSub were [the defendants]… Further, paragraphs 21-28 of Special Agent Hays’ affidavit establish that the defendants knew in February 2000 that their minimum profit for selling a one-half interest in SwapSub would be around $7 million”.104.Before expressing my conclusions on this issue as to disclosure I should confront Mr Jones’ other contention, that the extradition request was deliberately delayed until the provisions of the 2003 Act were in force. In fact the 2003 Act came into effect on 1 January 2004. Mr Hanusik swore a supplemental affidavit on 24 September 2004. He states (paragraph 2) that “the timing of the indictment and the subsequent requests for extradition were dictated by the natural course of the investigation”. Then at paragraph 4 he says this:“Following the return of the indictment in this case, I consulted with the Office of International Affairs, United States Department of Justice about the requirements for extradition of the defendant from the United Kingdom. I was instructed to, and did prepare an extradition request which establishes a prima facie case… At that time, and through the date that I submitted the extradition request to the Office of International Affairs, I had no knowledge, nor was I informed, that a new Extradition Act was being contemplated by the United Kingdom. I had only been informed that both the United Kingdom and the United States were negotiating a new Extradition Treaty… I was advised and directed not to wait for the implementation of the new treaty, nor did I wait for the implementation of the new Extradition Act, of which I had no knowledge…”Mr Hanusik proceeds to explain why it took the time it did to assemble the extradition request. In fact, the period was within 16 months of the Texas indictment being returned. Aside from anything else, this tends to give the lie to the submission in Mr Jones’ skeleton (paragraph 43) that there was “unjustified and inexcusable delay” on the part of the prosecutor in seeking the defendants’ extradition.105.There was no contest to this material by Mr McNabb giving evidence before the judge on 29 September 2004. In all these circumstances I conclude that Mr Jones’ case on abuse of the process is wholly without foundation. It is, to use a tired old metaphor, an attempt to make bricks without straw. There is nothing sinister in the non-disclosure of the FSA summary, or the passage of time between the relevant events and the extradition request. No ulterior motive for the prosecution has been shown.(iv) Human Rights 106.I will deal first with ECHR Article 6. The defendants’ case, supported before the judge by Mr McNabb’s evidence, is that they would not have a fair trial in Texas. This submission is in part based on a proposition I have already rejected, namely that the purpose of the prosecution is to obtain evidence from the defendants against Enron personnel. Other points, emanating largely from Mr McNabb’s testimony given on 29 September 2004, were as follows. The defendants would almost certainly be denied bail, and the conditions in which they would be held on remand would be inimical to their capacity to prepare their defence. There would be a long delay before trial. They would have to pay for legal representation at a cost of between one and two million dollars per defendant. There would be no possibility of recovering costs in the event of acquittal. One defendant, but not all three (as I understand Mr McNabb’s evidence – transcript 29 September 2004 p. 13 lines 14-15) might, if found to be lacking means, be represented out of the public defenders’ office; the others by private attorneys at public expense, but they would be “inexperienced”. To obtain evidence from the United Kingdom they would have to rely on the mechanisms of the Mutual Legal Assistance Treaty between this country and the United States. The use of video-link facilities is (as I have already indicated) discretionary. There would be difficulties in obtaining full and timely disclosure of documents from the prosecution. The Houston jury (I summarise p. 24 of the transcript) would be prejudiced against the defendants, and an application for a change of venue would be unlikely to succeed.107.There is also a statement from a Mr Hamilton, a previous federal prosecutor, who describes the long and unpleasant journey the defendants if extradited would undergo from New York to Texas via Oklahoma, “restrained by chains”, and the privations they would then suffer at the Federal Detention Center. 108.Mr Jones has a further submission to the effect that the plea bargains struck with Kopper and Fastow are “abhorrent to any English criminal court” (skeleton argument paragraph 61), and are liable to motivate them to give evidence so as to obtain a conviction.109.District Judge Evans was plainly sceptical as to the quality of Mr McNabb’s evidence. He noted Mr McNabb’s view that “no fair trial for a major fraud of these dimensions was possible in any Federal Court in the US”, and that the points he made were “of general application and… not case-specific”. I have already cited his conclusion:“I felt that rather than give disinterested evidence he was (maybe unconsciously) pressing home the defence agenda. It must be rather depressing for him to practice [sic] as a defence attorney in the Federal Courts when he is of the opinion that fair trials and justice are not available.”That is important, because although s.103(4) of the 2003 Act confers on this court an appeal jurisdiction in matters of fact as well as law, there has been no suggestion that we should take live evidence ourselves and there is no basis upon which we might properly doubt the judge’s assessment of Mr McNabb.110.No less important is the United States’ constitutional guarantee of fair trial. The Sixth Amendment provides:“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence.”The content is strikingly similar to that of ECHR Article 6. It would be frankly grotesque for this court to hold, on the strength of testimony which the District Judge concluded was parti pris, that this fundamental constitutional right would be more honoured in the breach than the observance at any trial of the defendants in Houston. There is a right to legal representation, to apply for bail, and to seek a change of venue. The defendants have already had much time to prepare their defences, having been aware of their predicament since November 2001. Jurors are vetted for bias in a voir dire process. There is no suggestion that the judge would be other than impartial. As it happens Mr McNabb described the judge assigned to the case as “a good judge: conservative, but tries to do the right thing” (transcript 29 September 2004, p. 15 lines 22-23).111.We are in no position at all to hold that trial of the defendants in Houston would violate their Article 6 rights. That would in my judgment be so even if Article 6 fell to be considered free of the constraints, plain from the jurisprudence, which arise from the fact that the putative violation would take place in a State not signatory to the ECHR. As I have shown the judge directed himself that the appropriate question was whether the defendants faced “a clear risk of suffering a flagrant denial of a fair trial” in Texas. He was right to do so. So much is plain from the opinions of their Lordships in Ullah [2004] 2 AC 323, to which I have already referred in passing in dealing with the judicial review. I will cite only this passage from what was said by Lord Bingham:“24. While the Strasbourg jurisprudence does not preclude reliance on articles other than article 3 as a ground for resisting extradition or expulsion, it makes it quite clear that successful reliance demands presentation of a very strong case. In relation to article 3, it is necessary to show strong grounds for believing that the person, if returned, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment: Soering, paragraph 91; Cruz Varas, paragraph 69; Vilvarajah, paragraph 103. In Dehwari, paragraph 61… the Commission doubted whether a real risk was enough to resist removal under article 2, suggesting that the loss of life must be shown to be a ‘near-certainty’. Where reliance is placed on article 6 it must be shown that a person has suffered or risks suffering a flagrant denial of a fair trial in the receiving state: Soering, paragraph 113…; Drodz, paragraph 110; Einhorn, paragraph 32; Razaghi v Sweden; Tomic v United Kingdom.”On a particular point taken by Mr Jones, there is Strasbourg authority to show that Article 6 does not require that the legal system in question should make provision for a successful defendant to recover costs.112.There is in my judgment no arguable free-standing complaint under ECHR Article 5, and I turn to Article 8, where the real burden of Mr Jones’ human rights case lies. Here there is no doubt that the proposed extradition would constitute an interference with the defendants’ rights under Article 8. Equally there is no doubt that the extradition is “in accordance with the law” and is sought in pursuit of a legitimate aim, namely “the prevention of… crime”. The only issue remaining is whether it would be a proportionate interference. 113.Each of the defendants was born in 1962 and has a family with young children. There are I think no special features relating to the family life of any of them save that one of the defendant Darby’s daughters unhappily suffers from a learning disability which requires her to attend a special school. 114.In Ullah Lord Bingham drew a distinction between “domestic cases” (paragraph 7) and “foreign cases” (paragraph 9). The parties joined issue as to the appropriate categorisation of this case, in light of the more stringent approach in foreign cases taken by the House of Lords to proof of violation of the Convention rights: an approach which Mr Hardy would have us apply; Mr Jones to the contrary. In fact Lord Bingham recognised a hybrid class of case (paragraph 18):“[S]ome [cases] were of a hybrid nature. The removal of a person from country A to country B may both violate his right to respect for his private and family life in country A and also violate the same right by depriving him of family life or impeding his enjoyment of private life in country B.”115.In Razgar Baroness Hale of Richmond said this:“43. This case… is concerned with article 8. In that context, Lord Bingham also refers [in Ullah] to a third or hybrid category. Here ‘the removal of a person from country A to country B may both violate his right to respect for his private and family life in country A and also violate the same right by depriving him of family life or impeding his enjoyment of private life in country B’ (paragraph 18). On analysis, however, such cases remain domestic cases. There is no threshold test of enormity or humanitarian affront. But the right to respect for private and family life, home and correspondence, which is protected by article 8, is a qualified right which may be interfered with if this is necessary in order to pursue a legitimate aim. What may happen in the foreign country is therefore relevant to the proportionality of the proposed expulsion.”These observations of Lady Hale are clearly in point, but with respect I entertain considerable doubt whether the case’s classification as “foreign” or “domestic” will in the circumstances cast much light on the stringency of the test for violation of Article 8 which the court should apply. The defendants complain of the threatened separation from their families; they also complain of the privations they may suffer in the United States. While for reasons I have given it is necessary to treat Mr McNabb’s evidence before the judge with considerable circumspection, the defendants clearly face some hazards – potential remand in custody, the possible heavy expenses of representation – which cannot be wholly ignored in looking at the Article 8 case. 116.In dealing with Article 6, I have already cited a passage from paragraph 24 of Lord Bingham’s opinion in Ullah. In the same paragraph he says:“The lack of success of applicants relying on articles 2, 5 and 6 before the Strasbourg court highlights the difficulty of meeting the stringent test which that court imposes. This difficulty will not be less where reliance is placed on articles such as 8 or 9, which provide for the striking of a balance between the right of the individual and the wider interests of the community even in a case where a serious interference is shown. This is not a balance which the Strasbourg court ought ordinarily to strike in the first instance, nor is it a balance which that court is well placed to assess in the absence of representations by the receiving state whose laws, institutions or practices are the subject of criticism. On the other hand, the removing state will always have what will usually be strong grounds for justifying its own conduct: the great importance of operating firm and orderly immigration control in an expulsion case; the great desirability of honouring extradition treaties made with other states. The correct approach in cases involving qualified rights such as those under articles 8 and 9 is in my opinion that indicated by the Immigration Appeal Tribunal (Mr C M G Ockelton, deputy president, Mr Allen and Mr Moulden) in Devaseelan v Secretary of State for the Home Department [2002] IAT 702, [2003] Imm AR 1, paragraph 111: ‘The reason why flagrant denial or gross violation is to be taken into account is that it is only in such a case - where the right will be completely denied or nullified in the destination country - that it can be said that removal will breach the treaty obligations of the signatory state however those obligations might be interpreted or whatever might be said by or on behalf of the destination state’.”Although the focus of these remarks, given their context, is on foreign cases as such, the reference to “the great importance of operating firm and orderly immigration control in an expulsion case; the great desirability of honouring extradition treaties made with other states” is not dependent on any such precise classification. Here I should also refer to this reasoning of Lord Bingham in Razgar:“17. In considering whether a challenge to the Secretary of State’s decision to remove a person must clearly fail, the reviewing court… must ask itself essentially the questions which would have to be answered by an adjudicator. In a case where removal is resisted in reliance on article 8, these questions are likely to be:…(5) If so, is such interference [so as to engage Article 8] proportionate to the legitimate public end sought to be achieved?…20. The answering of question (5), where that question is reached, must always involve the striking of a fair balance between the rights of the individual and the interests of the community which is inherent in the whole of the Convention. In Secretary of State for the Home Department v Kacaj [2002] Imm AR 213, paragraph 25, the Immigration Appeal Tribunal (Collins J, Mr C M G Ockelton and Mr J Freeman) observed that:‘although the [Convention] rights may be engaged, legitimate immigration control will almost certainly mean that derogation from the rights will be proper and will not be disproportionate.’In the present case, the Court of Appeal had no doubt (paragraph 26 of its judgment) that this overstated the position. I respectfully consider the element of overstatement to be small. Decisions taken pursuant to the lawful operation of immigration control will be proportionate in all save a small minority of exceptional cases, identifiable only on a case by case basis.”117.Before drawing any conclusions from this learning I should refer to a decision of the Commission at Strasbourg which is directly in point. This is Launder v United Kingdom (1997) 25 EHRR CD 67. The applicant claimed that his extradition to Hong Kong would interfere with his family life in violation of ECHR Article 8, and would be disproportionate to the proposed extradition’s legitimate aim. On the issue of proportionality the Commission stated (paragraph 3):“[I]t is only in exceptional circumstances that the extradition of a person to face trial on charges of serious offences committed in the requesting State would be held to be an unjustified or disproportionate interference with the right to respect for family life.”118.In my judgment this statement and the authorities in their Lordships’ House are, with respect, entirely in line. If a person’s proposed extradition for a serious offence will separate him from his family, Article 8(1) is likely to be engaged on the ground that his family life will be interfered with. The question then will be whether the extradition is nevertheless justified pursuant to Article 8(2). Assuming compliance with all the relevant requirements of domestic law the issue is likely to be one of proportionality: is the interference with family life proportionate to the legitimate aim of the proposed extradition? Now, there is a strong public interest in “honouring extradition treaties made with other states” (Ullah, paragraph 24). It rests in the value of international co-operation pursuant to formal agreed arrangements entered into between sovereign States for the promotion of the administration of criminal justice. Where a proposed extradition is properly constituted according to the domestic law of the sending State and the relevant bilateral treaty, and its execution is resisted on Article 8 grounds, a wholly exceptional case would in my judgment have to be shown to justify a finding that the extradition would on the particular facts be disproportionate to its legitimate aim.119.It is convenient to repeat District Judge Evans’ conclusion on this issue, as it was stated in his judgment on 15 October 2004:“I accept the defendants could have been prosecuted in the UK. There was, however, no obligation to prosecute them in the UK. They are not going to be prosecuted in the UK. There is a good and proper basis for prosecuting them in the US. The process of extradition is ‘necessary in a democratic society’ and proportionate.”This reasoning is thin, to say the least. Two matters in particular have troubled me. The first, and much the more important, is that the judge simply takes it as a given that the defendants are to be prosecuted in the United States and not in the United Kingdom. But that is the very outcome hotly opposed by these defendants, and it is common ground that they could, as a matter of jurisdiction, be tried here. I should recall my earlier question: where (if at all) in the legislation do we find a provision by force of which the decision-maker is to reach a conclusion as to place of trial, as the means of affording protection to the defendant’s Convention rights in fulfilment of his duty under s.6(1) of the 1998 Act? I have already stated (paragraph 71) that it is in the material provisions of the 2003 Act – effectively, s.87 – that all necessary protection of such rights in the extradition context is in my judgment to be found. 120.The second, albeit lesser, factor is that the defendants are of course United Kingdom nationals; but the paradigm extradition case is where the fugitive is a national of the requesting State, having fled its borders. The United Kingdom is one of the few European States prepared to extradite its own nationals.121.Should the judge have applied his mind to these factors? It could be said that both might colour the judgment he had to make, under s.87 of the 2003 Act, whether the extradition was proportionate. I do not accept Mr Hardy’s submission that the possibility of trial in the United Kingdom is legally irrelevant in a case like this. There might be an instance in which such a possibility could tip the balance of judgment in favour of a conclusion that the defendant’s extradition would amount to a disproportionate interference with his Article 8 rights. That, I think, has to be accepted if s.87 is to constitute effective judicial protection of the Convention guarantees. What it would take to make such a case is a very different question.122.It would have been better if the judge had confronted the matters to which I have referred and arrived at a reasoned conclusion. But we must pay attention to the terms of our statutory jurisdiction. Under s.104(1)(a) we may only allow the appeal if the conditions in subsection (3) or those in subsection (4) are met. These are framed with reference to the merits outcome of the case. I repeat subsection (3) for convenience:“The conditions are that –(a) the judge ought to have decided a question before him at the extradition hearing differently;(b) if he had decided the question in the way he ought to have done, he would have been required to order the person’s discharge.”The subsection (4) conditions do not, I think, arise for our consideration. Thus we may only allow the appeal on this part of the case if we conclude that, on a proper appreciation of the material before him, the judge should have decided under s.87(1) that the defendants’ extradition would be incompatible with their Article 8 rights. It is true that (while not allowing the appeal) we may under s.104(1)(b) “direct the judge to decide again a question (or questions) which he decided at the extradition hearing”, and such a question might of course include that which the judge had to answer under s.87(1). But it would be futile, and thus an improper exercise of the discretionary power conferred by s.104(1)(b), to make such a direction if in law the judge was bound to arrive at the same result as that in fact arrived at.123.We therefore have to decide, as it seems to me, whether upon a proper consideration of the two factors I have described (and especially the first), in light of all the facts the judge would or might have concluded that the defendants’ extradition would be a disproportionate interference with their Article 8 rights. If he would, we should allow the appeal under s.104(1)(a). If he might, we should give a direction under s.104(1)(b). If neither, we should dismiss the appeal under s.104(1)(c). 124.To my mind the starting-point on this part of the case is that the prospective extradition (as well as satisfying all relevant formal requirements) is not, for reasons I have given, tainted by any of Mr Jones’ accusations of abuse. The request was made in good faith, and as it happens, though the prosecutor did not have to demonstrate as much, a prima facie case is shown on the documents accompanying the request. Then I would attach importance to this passage from the judge’s judgment of 15 October 2004, which I have already cited:“In my judgment the defence submissions place too great an emphasis on the sale of Swap Sub by the bank, and ignore the very real US links and the conduct which took place in the US. At any trial it will be necessary to consider the defendants’ involvement in Southampton K Co… It seems to me that there is a very real basis, on the facts as alleged, for the case to be tried in Houston. The scheme could not have got off the ground without Fastow, Kopper and Enron’s involvement…”In dealing with Mr Jones’ Wednesbury case against the Director I have already stressed the point made by the prosecutor, which so far as I can see is uncontradicted, that only Kopper and Fastow give direct evidence of the scheme to defraud; in particular, they are in a position to testify as to the meeting in Houston on 22 February 2000. 125.In my judgment the case against the defendants has very substantial connections with the United States and is perfectly properly triable there. I do not think that in order to arrive at a right judgment upon the prospective extradition’s proportionality it was the duty of the judge, nor is it ours on appeal, to undertake an investigation of such matters as the practical prospects of obtaining Kopper and Fastow’s testimony at a trial in London.126.I would respectfully wish to underline the observations of the Lord Ordinary in Wright v Scottish Ministers [2005] Scots CS CSIH 40, which was decided in the Court of Session after Ullah and Razgar, and took into account their Lordships’ opinions in those cases. The petitioner had claimed that it was not proportionate to extradite him to Estonia to face trial on criminal charges which could have been tried in Scotland. The Lord Ordinary said:“Extradition does not and should not depend upon the ability or otherwise of the requested state to undertake its own investigations with a view to prosecuting the case within its own jurisdiction. Such an approach would involve unnecessary duplication of effort, would result in additional delays in the prosecution of suspected criminals and would have an adverse effect upon international relations and international co-operation in the prosecution of serious crime. In most, if not all, extradition cases the requested state would depend upon co-operation from the requesting state if the requested state were to embark upon its own investigation and ultimate prosecution of the case.”127.In short, in this case no less than in any other, the court must feel the weight of what Lord Bingham called “the great desirability of honouring extradition treaties made with other states”. And given the cross-border nature of the accusation here, these observations of Hale LJ as she then was in R (Warren) v Secretary of State for the Home Department [2003] EWHC 1177 are especially in point (at paragraph 40): “The object of extradition is to return a person who is properly accused or has been convicted of an extradition crime in a foreign country to face trial or to serve his sentence there… The extradition process is only available for return to friendly foreign states with whom this country has entered into either a multi or a bilateral treaty obligation involving mutually agreed and reciprocal commitments… [T]here is a strong public interest in our respecting such treaty obligations. Such international cooperation is all the more important in modern times, when cross-border problems are becoming ever more common, and the need to provide international solutions for them is ever clearer.” 128.I consider also that the approach of the European Human Rights Commission in Launder, requiring exceptional circumstances to demonstrate a want of proportionality in an extradition upon charges of serious offences committed in the requesting State, is fully applicable notwithstanding the fact that some acts going to constitute the fraud took place in the sending State, the United Kingdom.129.The facts which I have described disclose a significant United States dimension to the whole case; there is a Cayman Islands dimension as well, in addition to the English dimension. In relation to such transactions it is unnecessary, and probably unwise, to canvass the question which is the dominant country in terms of the acts allegedly done or the defendants’ alleged “target”. The United States dimension does not arise from the contingency that a telephone call or an e-mail happened to be received in that jurisdiction. It arises from the close and critical involvement of two senior Enron figures, not least at the meeting in Houston and in particular in persuading Enron to part with its money. That was essential to the alleged fraud by the defendants on the Bank. They were also instrumental in setting up the corporate arrangements whereby money was ultimately transferred to the defendants. It would be unduly simplistic to treat the case as a domestic English affair. The fact that the defendants could be prosecuted here (and that there would be consequential advantages and disadvantages from the prosecution and defence perspectives) does not amount to an exceptional circumstance.130. Nor, in my judgment, is there anything exceptional about the personal circumstances of these defendants to make a case on proportionality under ECHR Article 8(2). I am afraid that the plight of the defendant Darby’s child cannot make the difference. Nor can the conditions which the defendants would face on arrival in the United States and thereafter: those, moreover, are not clearly established given the judge’s reservations about Mr McNabb’s evidence. 131.Mr Jones advanced a particular argument which I ought to confront. It was in fact put forward in the course of his submissions on the judicial review, but as it seems to me could only have effect, if at all, as part of his case on the human rights aspect of the s.103 appeal. The argument is that the discretionary power to refuse extradition contemplated by Article 4(3) of the Council Framework Decision (2002/584/JHA) must have been implemented in domestic law by s.21 of the 2003 Act, there being no other candidate. S.21 of course falls within Part I. But s.87, within Part II, is effectively in identical terms. So it too must be read widely enough to encompass a discretion to refuse extradition in the circumstances contemplated by Article 4(3) of the Decision, which, it will be recalled, refers to a case“where the judicial authorities of the executing Member State have decided either not to prosecute for the offence on which the European arrest warrant is based or to halt proceedings, or where a final judgment has been passed upon the requested person in a Member State, in respect of the same acts, which prevents further proceedings”.132.Mr Jones’ argument adds nothing. The second arm of Article 4(3) is I would think reflected in part by the provision made to give effect to the rule against double jeopardy (s.80 of the 2003 Act). Otherwise the circumstances contemplated by the Article may, depending always on the particular facts, inform a human rights decision falling to be made under s.87 (or, of course, s.21). But the scope of any Convention right being considered is not thereby either enlarged or diminished.133.For all these reasons there is in my judgment no sufficient basis upon which to hold that the extradition request in this case ought to have been refused on proportionality grounds having regard to ECHR Article 8(2). 134.I would accordingly reject the defendants’ human rights submissions, and dismiss the statutory appeal against the District Judge.