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

57.Mr Jones’ broad case, across both sets of proceedings, has an overarching theme. It is an insistence on the defendants’ behalf, put very plainly in their solicitors’ letter to the Attorney General of 26 October 2004, that they should not have to face trial in the United States; if they are to be tried at all, it should be in England. Before addressing the detail of the arguments advanced before us I think it is helpful to consider how, if at all, this theme can be translated into a concrete legal submission. No statute enjoins any public authority whether court or minister in terms to decide, where a criminal case is triable in either of two jurisdictions, which is the forum conveniens (I use this expression, despite the Secretary of State’s comment in counsel’s note of 18 August 2005 to the effect that it is inapposite, as a well known shorthand simply to mean the more appropriate venue). Under the 2003 Act neither court nor minister possesses any discretion to further the extradition process or not to do so. If certain conditions are satisfied the court must send the case to the Secretary of State; if not, it must not. If certain further conditions are satisfied, the Secretary of State (once the case is sent to him) must order extradition; if not, he must not. This is in contrast to the predecessor legislation. Under the Extradition Act 1870, the Fugitive Offenders Acts of 1881 and 1967, and the 1989 Act the Secretary of State possessed a general discretion whether or not to surrender the fugitive to the requesting State. Accordingly he was on the face of it in a position to consider issues of forum conveniens as he thought fit, subject to judicial review. 58.In fact that may be to state the matter too simply, at least unless a qualification is added. In a skeleton argument dated 27 September 2005 counsel for the Attorney General submits (paragraph 14) that “there was never any suggestion under the old Extradition Acts that the Secretary of State, by use of his power to start and/or end the extradition process, could or did give active consideration as to which jurisdiction should take priority”. I should have thought that the old statutes would have allowed him to do so; but at all events, the 2003 Act does not. As I have shown ss.88 and 97 of the 2003 Act effectively require postponement of the extradition process, by the court and the Secretary of State respectively, where the relevant person is charged with an offence in the United Kingdom. But these provisions do not confer a power of discretionary judgment.59.Plainly the legislature has advisedly measured the reach of the functions it has conferred by the 2003 Act. Mr Jones’ overarching theme is at once met with the difficulty that it looks for a statutory regime which Parliament has chosen not to provide. But this is not to say that consideration of the forum conveniens is under the present extradition legislation always and in principle beyond the power and duty of any of the public authorities concerned. To the extent that a decision to try a defendant in one jurisdiction rather than another may lead to a violation of his Convention rights, some public decision-maker must be in a position to conclude the matter so as to avoid such an outcome, or the process will fall foul of s.6(1) of the 1998 Act by whoever sends the defendant to the offending jurisdiction: unless he is saved by s.6(2)(a), but in that case the relevant statute will be vulnerable to a declaration of incompatibility under s.4.60.In these circumstances Mr Jones’ overarching theme is translated into a concrete question: where (if at all) in the legislation before us do we find a provision or provisions 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?