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

(i) Specialty135.Here the question is whether the Secretary of State correctly concluded, in his decision of 24 May 2005, that there are in being “speciality arrangements” with the United States within the meaning of s.95 of the 2003 Act. Mr Hardy accepts, as I understand does Mr Qureshi for the Secretary of State, that the court must consider not only the United States’ relevant laws and procedures, but also any circumstances specific to the particular case which might bear on the issue whether the requirements of s.95(3) are met.136.It is important to be precise as to the question or questions we have to decide. We are not directly concerned with whether the relevant law and practice in the United States complies with Article XII of the 1972 UK – USA Extradition Treaty, which I have cited. We have to go by the 2003 Act. Article XII(1) forbids process against an extradited person in the requesting State “for any offense other than an extraditable offense established by the facts in respect of which his extradition has been granted”. S.95 forbids such process for an offence unless (so far as relevant here) it is “(a) the offence in respect of which the person is extradited; [or] (b) an extradition offence disclosed by the same facts as that offence” (s.95(4)). It is not, I think, to be assumed that the two prohibitions are identical, though they are clearly close. 137.However the way in which Article XII of the Treaty is in principle approached in the federal law of the United States must in my judgment be the starting-point of our consideration of the question whether the Secretary of State was right to conclude that s.95 was satisfied in this case. As to that I should first draw attention to Article VI of the US Constitution, which provides in part:“This Constitution… and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby…”Thus by the Constitution the 1972 Treaty became part of the domestic law of the United States upon its coming into effect, without more. This differs, of course, from the constitutional position in the United Kingdom. Here as is well known a treaty is only made part of our domestic law if Parliament enacts legislation to that effect. 138.The second point as to the general approach of the federal law of the United States to the specialty rule, as it has been expressed in successive treaties dealing with extradition, is that the rule has been firmly vouchsafed by decisions of the Supreme Court. The leading case is United States v Rauscher 119 US 407, decided in 1886. The Supreme Court applied the rule, holding that an extradited person could only be tried for the offences for which he had been extradited: “the country receiving the offender against its laws from another country had no right to proceed against him for any other offense than that for which he had been delivered up”. Superseding Indictment 139.However Mr Jones submits that decisions of the United States Court of Appeals, and especially the 5th Circuit (on which the defendants will be tried if they are extradited), show that the rule is more honoured in the breach. He says that a practice can be discerned by which the court has repeatedly shown itself prepared to countenance the trial of the defendant on a “superseding indictment” alleging crimes for which he has not been extradited, or in respect of which extradition has even been refused by the sending State. Amongst other cases counsel cited Kaufman 858 F.2d 994 (5th Circuit 1988), LeBaron 156 F.3d 621 (5th Circuit 1998), Fiocconi 462 F.2d 475 (2nd Circuit 1972), Andonian 29 F.3d 1432 (9th Circuit 1994), and Diwan F.2d. 715 (11th Circuit 1989). All these decisions are analysed in detail by Ouseley J in Welsh and Thrasher, which was also an extradition case concerning the United States heard by Ouseley J and myself in the same sittings as these appeals. I have expressed my agreement with Ouseley J’s reasoning on which I cannot improve and will not replicate here. He holds, in particular, that the decision in LeBaron “not merely does not support [counsel’s] submission, it shows it to be completely wrong” (paragraph 39). 140.I should, at least for clarity’s sake, state our essential conclusions on the “superseding indictment” point in this judgment. There is no doubt that “superseding indictments” are deployed in the United States for the trial of extradited defendants. But that is not to say that such defendants are put on trial in breach of the specialty rule. LeBaron contains a characteristic statement, made by Circuit Judge Garza after citing earlier authority (627):“[T]he doctrine of specialty is concerned primarily with prosecution for different substantive offenses than those for which consent has been given, and not prosecution for additional or separate counts of the same offense. The appropriate test for a violation of specialty ‘is whether the extraditing country would consider the acts for which the defendant was prosecuted as independent from those for which he was extradited’.”The formulation there quoted is from Andonian at 1435. This test, as Ouseley J shows, is a recurrent theme through the cases. In applying it, moreover, the courts of the United States do not simply go on the basis that the absence of specific objection by the sending State is to be taken as consent to the defendant’s trial on a re-formulated charge. I would respectfully repeat and emphasise this passage in Ouseley J’s judgment in Welsh and Thrasher:“84. The US Courts do not infer consent merely because there is silence. They do not turn a blind eye to what are obvious problems in the sending state’s known attitude, whether from past extradition requests or from the particular case or Treaty involved. Rather… they adopt a realistic assessment of the sending state’s attitude, in recognition of the specialty doctrine as a principle of international comity and out of respect for a foreign state’s sovereignty. But the Courts do not treat it as a technical hurdle devised for the benefit of properly convicted criminals, enabling them to take points which truly belong to the sending state and which the Courts properly infer that the sending state does not take.85. There is nothing in the cases which would justify the conclusion that the US Government or Courts would not respect the express limits in the UK-US Treaty or in the 2003 Act or in any judgment of this Court…”141.This summation of the position, and indeed the formulation of the test for a violation of the specialty rule set out in Andonian, LeBaron and other cases, reflect the very approach taken by the Supreme Court in Rauscher in 1886 to which I have already referred. Rauscher was extradited from the United Kingdom on a charge of murder pursuant to an extradition treaty of 1842. But he was sought to be tried in the United States for an offence of unlawfully inflicting cruel and unusual punishment on the same victim. Both alleged crimes arose out of what Rauscher was said to have done to a member of the crew on board a ship of which he was the second mate. The Supreme Court by a majority (Waite CJ dissenting) held that Rauscher could not be tried on the lesser charge. In Kaufman the United States Court of Appeals (5th Circuit) gave this useful and illuminating summary of the Rauscher case (1008-1009):“Rauscher… was decided against a backdrop of political controversy over precisely whether the treaty contained a rule of specialty. The controversy arose after the conclusion of the treaty when one Winslow was charged with forgery in the United States. The United States requested the extradition of Winslow, who had taken refuge in England. Before Britain agreed to relinquish Winslow, the British Foreign Office required a pledge that the United States would not try Winslow on any charge other than forgery. The United States refused to accede to the British demand, diplomatic negotiations ensued, and the matter was significant enough that the British Foreign Minister, Lord Derby, spoke on the subject in the House of Lords. Thus, although there is no record of a formal British protest of the extradition of Rauscher, the British had made known their very strong feelings through a history of negotiations and deliberations.”142.Mr Jones submits that if they are extradited his clients risk facing a superseding indictment which would charge them with a different fraud (or conspiracy) from that presently levelled against them, namely a fraud on Enron as such. The US Department of Justice has offered certain undertakings in the matter, not least that contained in a letter of 23 November 2005:“US authorities will not seek a superseding indictment charging [the defendants] with offenses arising from conduct other than that conduct for which [they] have been extradited by the United Kingdom.”This undertaking was also deployed in Welsh and Thrasher, and Ouseley J considered (paragraph 152) that on the facts of that case it did not affect the position. In the present case I consider that the undertaking confirms the position which the United States courts would anyway adopt. They will be satisfied, not least by the terms of this court’s judgment, that the defendants’ extradition is ordered on the precise basis that the accusation they will face at trial will be limited to, and travel no wider than, the case which is essentially formulated in paragraphs 10 and 23 of the Texas indictment and reflected in the charge drafted for the proceedings at Bow Street. And the American courts will be loyal to this expectation: not merely because in general they respect the specialty rule, but because by their own express jurisprudence (from Rauscher onwards) it is “essential to determine… whether the surrendering state would regard the prosecution as a breach” (Fiocconi, 480). This test is meticulously applied. It means, in short, that the American courts will give effect to the views of the Secretary of State and of this court (as to which there will be no room for doubt) of the requirements of s.95 of the 2003 Act.143.Here the specialty rule, through the medium of s.95, requires that the defendants be proceeded against in Texas only for the crime or crimes described in paragraphs 10 and 23 of the Texas indictment, which I have set out above at paragraph 37. That their co-conspirators were or included Fastow and Kopper, and that in the course of the criminal venture Enron was deceived (though it was not a loser at the defendants’ hands), are plainly matters that may be canvassed without offence to the specialty rule. For the reasons I have given I am satisfied that s.95 is met. 144.That conclusion is to my mind reinforced by another point on the facts, which seems to me to have some force. In his principal affidavit at paragraph 17 Mr Hanusik refers to the statute of limitations which applies to the counts specified in the Texas indictment. Title 18, United States Code, Section 3282 allows for the commencement of such a prosecution within five years of the alleged offence taking place. Mr Hanusik sets out the date on which each of the seven communications giving rise to the individual counts was made. The latest was 1 May 2000. In a letter of 20 April 2005 from the Department of Justice to the Home Office this is said:“[A]s we stated in our earlier response, the prosecutors have advised that the statute of limitations bars prosecutors from charging the defendants with further substantive offenses based upon these facts after May 2005.”May 2005 has of course come and gone. No superseding indictment has been filed. I am not aware of any possible scenario by which the defendants might now be accused of other offences, against Enron or otherwise, within the statutory limitation period, and none has been suggested. Sentencing 145.Mr Jones has another argument on the specialty rule based on a document called the Federal Sentencing Guidelines. These Guidelines were introduced in 1987. An expert instructed for the defendants, Professor Beale of Duke University in North Carolina, refers in her statement to the 1998 Federal Sentencing Guidelines Manual as being applicable in the defendants’ case. The argument is that the Guidelines provide for a defendant’s sentence to be enhanced or increased by reference to conduct not forming any part of the offence of which he has been convicted. Mr McNabb (in a written statement) asserts that “any act or omission that can be tenuously linked to the indicted offense is considered part of the offense [for the purposes of sentence]”. In evidence before the District Judge he said (transcript 29 September 2004, pp. 51 line 24 – 52 line 4) that the trial judge may adjust the sentence upwards on account of “unadjudicated conduct” of which he need only be satisfied on a balance of probability (p. 36 lines 2 – 6). Mr Jones submits, in short, that the defendants are at risk of being sentenced for defrauding Enron though they will not have been extradited for any such crime; and the specialty rule would thus be violated.146.The Federal Sentencing Guidelines were also the subject of argument in Welsh and Thrasher, and their impact on the specialty rule is discussed by Ouseley J at paragraphs 100 ff of his judgment in that case. Again, I agree with his reasoning and will not repeat it. In summary the points are these. (1) The specialty rule does not in the United States “restrict the scope of proof of other crimes that may be considered in the sentencing process. The distinction is thus drawn between proof of other crimes as a matter germane to the determination of punishment for the extradited crime and proof of other crimes in order to exact punishment for those other crimes. Only the latter course is forbidden by the rule of specialty” (Garcia 208 F.3d 1258 (11th Circuit 2000). More shortly, “[R]elated criminal conduct to enhance a defendant’s sentence for a separate crime within the authorized statutory limits does not constitute punishment for that conduct.” (Witte v US 515 U.S.389 (1995): Witte was not an extradition case.) (2) The US may regard offences in respect of which extradition has been refused as capable of aggravating sentence, and that is not treated as a breach of specialty. (3) Under the Sentencing Reform Act of 1994 the Guidelines had been promulgated as mandatory instructions to the federal criminal courts. The Supreme Court has held that to be unconstitutional: Booker 125 S.Ct. 738 (2005). The Guidelines are accordingly now discretionary. But this circumstance, I think, has no determinative impact on the question whether the defendants would if extradited face a violation of the specialty rule. If the US trial court possesses a discretion to pass sentence on a basis which means that the extradited defendant will be “dealt with” (s.95(3) of the 2003 Act) for an offence or offences other than “(a) the offence in respect of which [he] is extradited; or (b) an extradition offence disclosed by the same facts” (s.95(4)), then the conditions of s.95 are unfulfilled just as surely as if the US trial court was bound to sentence on such a basis; unless, perhaps, it were plain that the discretion would not be so exercised. (4) The sense to be given to the phrase “dealt with” in s.95(3) is accordingly of some importance. 147.Here I would respectfully commend the reasoning of Ouseley J in Welsh and Thrasher at paragraphs 135 – 139. I hope I do him no injustice if I venture to highlight these points. (1) “Dealing with” an extradited person plainly includes sentencing him. (2) The Secretary of State must make up his own mind whether on any given scenario of law and fact in the requesting State, the defendant would on return there be “dealt with” conformably with s.95. He may not simply adopt the requesting State’s view of the reach of the specialty rule. (3) However, as Ouseley J says (paragraph 136) “the language of [s.95] has to be applied to many treaties and foreign justice systems which will differ from each other as well as from those of the UK”; there is, accordingly, no implied condition of the section’s fulfilment that the sentencing practice in the requesting State should be mirror image to the practice here. (4) The authorities suggest that the sentencing practices reflected in the Guidelines have been in place for very many years. Had these practices been perceived in the United Kingdom as repugnant to our conception of the specialty rule, the matter would surely have been clarified in successive treaties or extradition statutes, or surfaced in litigation contesting an extradition order. Thus s.95 “is not intended to bring about profound changes in extradition arrangements in a way which would add a novel and significant hindrance to extradition”. (Ouseley J, paragraph 137). (5) Although the United States courts appear to take broader considerations into account when sentencing than do the courts here, that will not of itself produce the result that an extradited defendant would be “dealt with” other than in accordance with s.95.148.In this case we have, and the Secretary of State had, a letter from the US Department of Justice dated 3 February 2005 addressing the defendants’ points about the specialty rule including the contention that “the sentences they will receive pursuant to the Sentencing Guidelines will violate the rule”. The letter’s author cites three “sentencing enhancements” which the defendants fear would be applied to them:“First, if a judge determines that they obstructed justice by contesting extradition proceedings.Second, if a judge finds that the value of the fraud they committed is in excess of $7 million.Third, because they committed their crimes in the United Kingdom.”The letter continues:“The first allegation that contesting extradition is tantamount to the offense of obstructing justice is absurd. Under United States law, and we assume under United Kingdom law, merely defending oneself in a legal action, including contesting extradition, is not considered a criminal offense.I have attached an outline of the possible enhancements that the fugitives may face if they were extradited to the United States and convicted on all charges for which they might be extradited, and if the sentencing court follows the advice set forth by the Sentencing Guidelines. These enhancements include two of the three cited by the defendants – the amount of the fraud and the use of sophisticated means to commit the fraud, or commission of a substantial part of the fraud scheme outside the United States… If all the possible enhancements are established, the maximum sentence each defendant could receive is 135 – 168 months in prison, well below the statutory maximum of 420 months [a footnote states that this is a ‘worst case scenario’ for the defendants]. This is based upon the calculations provided by the 1998 Sentencing Guidelines which were in effect at the time the alleged offences were committed.”The attachment to the letter allocates a score for “loss enhancement”, and adds this note:“This assumes a $19 million loss, but could be reduced by 1 point if the loss is found to equal the amount of gain to the defendants, or $7.3 million.”Mr Jones complains about this “assumption” of a loss of $19 million, but the letter is merely stating the “worst case scenario”; and what in truth it demonstrates is that the amount of the loss to GNW/the Bank will be determined judicially by the sentencing court, to a maximum of $19 million.149.Given the approach to be taken to the Sentencing Guidelines in light of the correct construction of s.95, as I have summarised it and Ouseley J has explained it, there is in my judgment nothing in this part of the case to expose a violation of the specialty rule as it falls to be applied under the statute by the Secretary of State and on appeal by this court.(ii) Human Rights150.The Secretary of State accepts in terms that “his decision to order the extradition of a person must not be incompatible with his or her Convention rights” (paragraph 17 of Mr Qureshi’s supplementary note of 14 November 2005). Such an acceptance is in any case implicit in his decision letter of 24 May 2005. Mr Jones did not make extended submissions on this part of the case, asserting in his skeleton only that the Secretary of State has “declined to exercise any independent judgment on the [human rights] issue, preferring to leave it all to the District Judge”.151.That being so little if anything was said at the hearing about the potential impact of the Convention rights upon the Secretary of State’s functions under the 2003 Act. It is, however, to be noted that in the context of those functions there is no analogue to s.87; and as I have shown unless the Secretary of State is prohibited from ordering the person’s extradition by any of the three matters specified in s.93(2), s.93(4) requires him, subject to certain exceptions, to order the person’s extradition to the territory of the requesting State. The three matters are the death penalty (s.94), specialty (s.95), and earlier extradition to the United Kingdom from another territory (s.96). While these – notably the first – may run into ECHR territory, it would appear that the Secretary of State has no free-standing duty or discretion to consider the Convention rights and fashion his extradition decision accordingly.152.It may well be said, however, that by force of s.6 of the 1998 Act the Secretary of State must not order a person’s extradition if that would violate his Convention rights; and the price of compatibility with the ECHR is that the 2003 Act must have recognized as much. In these proceedings we have heard no argument upon such an issue, and I am very far from suggesting that it should be canvassed now. The true position may very well be that a defendant’s Convention rights are sufficiently protected by s.87 read with ss.103(5) and 104(4). S.103(5) postpones the hearing of any appeal against the judge’s decision until after the Secretary of State has made his decision. I have already set out s.104(4). It would appear that if any new facts emerged after the case was sent to the Secretary of State which bear on the defendant’s Convention rights, they can be raised on an appeal against the judge which will be heard after the Secretary of State’s decision.153.In this case, there were, so far as I know, no such new facts. When the matter came before the Secretary of State there was nothing more to be said about the defendant’s Convention rights. In any event the defendants had, and have, no ECHR case for reasons I have given in dealing with the appeal against the judge.154.I would dismiss the appeal against the Secretary of State.