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

“The Director may -institute and have the conduct of any criminal proceedings which appear to him to relate to such fraud…” The 2003 Act 4.The 2003 Act created a new extradition regime. Part I, which has its genesis in the Council Framework Decision of 2002 on the European arrest warrant, contains provisions dealing with extradition from the United Kingdom to what are called “category 1” territories, that is to say territories designated by the Secretary of State. These are in effect the European Union countries which operate the European arrest warrant. It is unnecessary to describe the Part I procedures in detail. They include provision for an extradition hearing, and I should note (for it is germane to one of the arguments advanced in the judicial review by Mr Jones QC for the defendants) that s.21 requires the judge at the extradition hearing to decide whether the relevant person’s extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998 (“the 1998 Act”), and if he decides that it would not, he must order the person’s discharge. The material terms of s.21 are identical to those of s.87 which appears in Part II, and which I set out below.5.Part II deals with “category 2” territories. These also are designated by order of the Secretary of State. A principal category 2 territory is the United States. So it is the provisions of Part II that are engaged in this case. I must set out a large portion of the measures it contains.6.S.70:“(1) The Secretary of State must issue a certificate under this section if he receives a valid request for the extradition to a category 2 territory of a person who is in the United Kingdom.…(3) A request for a person’s extradition is valid if –(a) it contains the statement referred to in subsection (4), and(b) it is made in the approved way. (4) The statement is one that the person –(a) is accused in the category 2 territory of the commission of an offence specified in the request… …(8) A certificate under this section must certify that the request is made in the approved way.(9) If a certificate is issued under this section the Secretary of State must send these documents to the appropriate judge [defined by s.139(1)(a), for the purposes of England and Wales, as a district judge designated by the Lord Chancellor] –(a) the request;(b) the certificate;(c) a copy of any relevant Order in Council.”Once the Secretary of State has sent documents to the appropriate judge under s.70, s.71(2) empowers the judge to “issue a warrant for the arrest of the person whose extradition is requested” if certain conditions are fulfilled. The first condition is that “the offence in respect of which extradition is requested is an extradition offence”. (“Extradition offence”, so far as material to the circumstances of this case, is defined by s.137 to which I shall come.) By s.72(3) a person so arrested must (unless he is bailed) “be brought as soon as practicable before the appropriate judge”. I may go to s.78:“(1) This section applies if a person alleged to be the person whose extradition is requested appears or is brought before the appropriate judge for the extradition hearing.(2) The judge must decide whether the documents sent to him by the Secretary of State consist of (or include) –(a) the documents referred to in section 70(9);(b) particulars of the person whose extradition is requested;(c) particulars of the offence specified in the request;(d) … a warrant for his arrest issued in the category 2 territory…(3) If the judge decides the question in subsection (2) in the negative he must order the person’s discharge.”If the judge decides the s.78(2) question in the affirmative, he is required by s.78(4) to decide further questions, one of which is whether “(b) the offence specified in the request is an extradition offence”. If any of those questions is decided in the negative, then again by s.78(6) the judge must order the person’s discharge. If they are decided affirmatively, by s.78(7) the judge must proceed under s.79 which is cross-headed “Bars to extradition”. One such bar (s.79(1)(a)) is the rule against double jeopardy. Another is specified by s.79(1)(c) to be “the passage of time”. S.82 provides:“A person’s extradition to a category 2 territory is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have committed the extradition offence…”7.If the judge decides that none of the statutory bars specified in s.79(1) applies, he is required by s.79(4) (in the case of a person not unlawfully at large after conviction) to proceed under s.84, subsection (1) of which provides:“If the judge is required to proceed under this section he must decide whether there is evidence which would be sufficient to make a case requiring an answer by the person if the proceedings were the summary trial of an information against him.”But by s.84(7):“If the judge is required to proceed under this section and the category 2 territory to which extradition is requested is designated for the purposes of this section by order made by the Secretary of State –(a) the judge must not decide under subsection (1), and(b) he must proceed under section 87.”The United States is designated for the purposes of s.84 (and also for the purposes of s.71) by order of the Secretary of State. S.87 provides:“(1) If the judge is required to proceed under this section (by virtue of section 84…) he must decide whether the person’s extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998.(2) If the judge decides the question in subsection (1) in the negative he must order the person’s discharge.(3) If the judge decides that question in the affirmative he must send the case to the Secretary of State for his decision whether the person is to be extradited.”S.88:“(1) This section applies if at any time in the extradition hearing the judge is informed that the person is charged with an offence in the United Kingdom.(2) The judge must adjourn the extradition hearing until one of these occurs –(a) the charge is disposed of;(b) the charge is withdrawn;(c) proceedings in respect of the charge are discontinued;(d) an order is made for the charge to lie on the file…(3) If a sentence of imprisonment or another form of detention is imposed in respect of the offence charged, the judge may adjourn the extradition hearing until the sentence has been served.(4) If before he adjourns the extradition hearing under subsection (2) the judge has decided under section 79 whether the person's extradition is barred by reason of the rule against double jeopardy, the judge must decide that question again after the resumption of the hearing.”8.S.92(2) requires the judge, if he sends the case to the Secretary of State, to inform the person in question of his right of appeal to the High Court (I will deal with the appeal provisions below). S.92(3) requires him to remand the person in custody or on bail to await the Secretary of State’s decision, and his extradition if the Secretary of State so orders. (Provision is made by ss.117 and 118 for the person’s actual extradition to the relevant category 2 territory within a fixed period, where there has been no appeal or a failed appeal.)9.The Secretary of State’s functions are conferred by ss.93 ff. By s.93(2) he must decide whether he is prohibited from ordering the person’s extradition by any of three matters, including “(b) section 95 (speciality)”. If he decides affirmatively, s.93(3) requires him to order the person’s discharge. If negatively, s.93(4) requires him, subject to certain exceptions, to order the person’s extradition to the territory of the requesting State. He has no discretion. By force of s.99 the Secretary of State’s decision has to be made within two months of the day when the judge sends the case to him, subject to any extension granted by the High Court under s.99(4).10.S.95 is cross-headed “speciality”. For some reason which we have not fathomed the legislature chose this word to mean the same as “specialty”, which is the term long used in the law of extradition to refer to the rule (I summarise) that an extradited person may only be tried in the requesting State for the crime or crimes for which he has been extradited. In this judgment I shall use the expression “specialty rule”. S.95 provides so far as material:“(1) The Secretary of State must not order a person’s extradition to a category 2 territory if there are no speciality arrangements with the category 2 territory.…(3) There are speciality arrangements with a category 2 territory if (and only if) under the law of that territory or arrangements made between it and the United Kingdom a person who is extradited to the territory from the United Kingdom may be dealt with in the territory for an offence committed before his extradition only if –(a) the offence is one falling within subsection (4), or(b) he is first given an opportunity to leave the territory.(4) The offences are –(a) the offence in respect of which the person is extradited;(b) an extradition offence disclosed by the same facts as that offence…;(c) an extradition offence in respect of which the Secretary of State consents to the person being dealt with;(d) an offence in respect of which the person waives the right that he would have (but for this paragraph) not to be dealt with for the offence.(5) Arrangements made with a category 2 territory which is a Commonwealth country or a British overseas territory may be made for a particular case or more generally.(6) A certificate issued by or under the authority of the Secretary of State confirming the existence of arrangements with a category 2 territory which is a Commonwealth country or a British overseas territory and stating the terms of the arrangements is conclusive evidence of those matters.”S.97 applies where the relevant person is charged with an offence in the United Kingdom after the judge has sent the case to the Secretary of State, and s.97(2) and (3) contain provisions conferring functions on the Secretary of State exactly parallel to those conferred on the judge by s.88(2) and (3).11.I may turn now to the appeal provisions. There are separate rights of appeal against decisions of the judge, and against an order for extradition made by the Secretary of State. Both are invoked in this case. As for the first, s.103 provides so far as material:“(1) If the judge sends a case to the Secretary of State under this Part for his decision whether a person is to be extradited, the person may appeal to the High Court against the relevant decision.…(3) The relevant decision is the decision that resulted in the case being sent to the Secretary of State.(4) An appeal under this section may be brought on a question of law or fact.(5) If an appeal is brought under this section before the Secretary of State has decided whether the person is to be extradited the appeal must not be heard until after the Secretary of State has made his decision.…”S.104:“(1) On an appeal under section 103 the High Court may –(a) allow the appeal;(b) direct the judge to decide again a question (or questions) which he decided at the extradition hearing;(c) dismiss the appeal.(2) The court may allow the appeal only if the conditions in subsection (3) or the conditions in subsection (4) are satisfied.(3) 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. (4) The conditions are that –(a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing;(b) the issue or evidence would have resulted in the judge deciding a question before him at the extradition hearing differently;(c) if he had decided the question in that way, he would have been required to order the person's discharge. (5) If the court allows the appeal it must –(a) order the person’s discharge;(b) quash the order for his extradition. …”S.105 confers a right of appeal on the requesting category 2 territory against an order made by the judge for the relevant person’s discharge. That does not arise here.12.The right of appeal against an extradition order made by the Secretary of State is given by s.108. S.108(3) is in identical terms to s.103(4). S.109 is an analogue of s.104. S.109(1) is identical to s.104(1) save that there is no equivalent of s.104(1)(b). S.109(3), (4) and (5) are in the same terms as s.104(3), (4) and (5) with appropriate substitutions of the Secretary of State for the judge, and the extradition order for the duty to discharge. S.110 is analogous to s.105, and confers a right of appeal on the requesting State against an order by the Secretary of State for the person’s discharge.13.Now I may turn to s.137, which as I have said defines “extradition offence” as it applies in circumstances like those which obtain here. By ss.(1) s.137 is stated to apply “in relation to conduct of a person”. The section continues:“(2) 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;(b) the conduct would constitute an offence under the law of the relevant part of the United Kingdom punishable with imprisonment or another form of detention for a term of 12 months or a greater punishment if it occurred in that part of the United Kingdom;(c) the conduct is so punishable under the law of the category 2 territory (however it is described in that law).(3) The conduct also constitutes an extradition offence in relation to the category 2 territory if these conditions are satisfied –(a) the conduct occurs outside the category 2 territory;(b) the conduct is punishable under the law of the category 2 territory with imprisonment or another form of detention for a term of 12 months or a greater punishment (however it is described in that law);(c) in corresponding circumstances equivalent conduct would constitute an extra-territorial offence under the law of the relevant part of the United Kingdom punishable with imprisonment or another form of detention for a term of 12 months or a greater punishment.(4) The conduct also constitutes an extradition offence in relation to the category 2 territory if these conditions are satisfied –(a) the conduct occurs outside the category 2 territory and no part of it occurs in the United Kingdom;(b) the conduct would constitute an offence under the law of the relevant part of the United Kingdom punishable with imprisonment or another form of detention for a term of 12 months or a greater punishment if it occurred in that part of the United Kingdom;(c) the conduct is so punishable under the law of the category 2 territory (however it is described in that law).…” The 1972 Extradition Treaty 14.It is convenient while dealing with the statutory materials also to introduce the the 1972 UK – USA Extradition Treaty, which has played some part in the argument. I should say that there is a new extradition treaty agreed between the two States in March 2003. However it has not so far entered into force, because the United States has not yet ratified it. Accordingly for the time being the 1972 treaty remains effective.15.Article V of the 1972 treaty specifies circumstances in which extradition between the States is not to be granted. Article V(2) provides:“Extradition may be refused on any other ground which is specified by the law of the requested Party.”Article XII(1):“A person extradited shall not be detained or proceeded against in the territory of the requesting Party for any offense other than an extraditable offense established by the facts in respect of which his extradition has been granted, or on account of any other matters, nor be extradited by that Party to a third State –(a) until after he has returned to the territory of the requested Party; or(b) until the expiration of thirty days after he has been free to return to the territory of the requested Party.” The Council Framework Decision 16.I have already referred to this European measure but should set out one of its provisions in light of a particular submission advanced by Mr Jones. The Decision (2002/584/JHA) was adopted on 13 June 2002. Article 4 lists grounds on which “[t]he executing judicial authority may refuse to execute the European arrest warrant”. The grounds include“(3) 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”. The European Convention on Human Rights 17.As is well known the 1998 Act imposes duties in municipal law upon public authorities, including the courts and the Secretary of State, to uphold and enforce (I summarise) the Convention rights specified in the Schedule. I need only cite part of s.6:“(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.(2)Subsection (1) does not apply to an act if –(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently…” 18.Other measures in the 1998 Act include s.4, allowing the court to make a declaration of incompatibility where it is satisfied that a provision of primary legislation is incompatible with a Convention right. The Convention rights are of course the principal rights guaranteed by the European Convention on Human Rights and Fundamental Freedoms (“ECHR”). I should cite part of ECHR Article 6 (and summarise the rest):“6(1) In the determination of… any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law…(2) Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”Article 6(3) confers “minimum rights” on criminal defendants. They include the right to adequate time and facilities to prepare the defence, legal assistance (free if necessary), and the right to require the attendance and examination of witnesses. Then Article 8 provides:“(1) Everyone has the right to respect for his private and family life, his home and his correspondence.(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”