Extradition

• Pages: 72-77

Page 72

The Appellant in the House of Lords is Mr. Ian Norris, a citizen of the United Kingdom. The Government of the United States (Respondent) seeks to extradite him to the U.S. to stand trial in a Pennsylvania federal court. On June 1, 2005, Evans DJ sent the case to the Home Secretary for his decision whether the U.K. should extradite Appellant and, on September 29, 2005, the Secretary ordered that he should. The Queen's Bench upheld that order, subject to this appeal to the House.

For 29 years, Appellant worked in the carbon division of the Morgan Crucible group of companies; after four years as group CEO, he retired in 2002 on grounds of ill-health. The group's parent company is an English company, based in Windsor. The Morgan group had subsidiaries based in North Carolina and Pennsylvania.

In 1999 the Respondent began to investigate allegations of price-fixing in the U.S. carbon industry.

In due course, the two American subsidiaries paid substantial fi nes. The U.S. authorities granted immunity from prosecution to most of Morgan's directors, officers and employees as part of a plea bargain but not to Appellant. In September 2004, a federal grand jury sitting in Pennsylvania returned the indictment on which it is now sought to extradite Appellant from the U.K..

This indictment contains four counts. The fi rst count alleges that Appellant conspired with certain other European producers of carbon products to enter into a price-fixing agreement or cartel in several countries, including the U.S. It alleged that, while the parties made the agreements outside the U.S. (e.g. in Europe, Mexico and Canada), it injured free competition in the U.S. market. The cartel allegedly operated from at least 1989 to 2000. The charge invoked 15 U.S.C. §1, familiarly known as the Sherman Act which criminalizes certain antitrust conspiracies.

This is a statutory offence of strict liability. It does not require proof of fraud, deception or dishonesty, and count 1 of the indictment contains no such allegation. Among the extradition papers served on Appellant was an affidavit of Lucy McClain, a prosecutor in the Anti-Trust Division of the U.S. Department of Justice. She deposed that the conspirators such as Appellant "[i]n effect ... defrauded their customers by requiring that they pay higher prices than they might otherwise have paid had there been no conspiracy." The U.S. indictment itself, however, did not contain this specifi c allegation.

The charges sheet prepared by the Crown Prosecution Service on behalf of the Respondent, transposed Count 1 of the U.S. indictment into the particulars of English criminal off ences. The result was that Appellant allegedly conspired to "defraud buyers of carbon products by dishonestly entering into an agreement to fi x, maintain and co-ordinate the price for the supply of carbon products in the U.S." Counts 2, 3 and 4 of the U.S. indictment alleged (2) conspiracies to obstruct justice, (3) witness tampering and (4) causing a person to alter, destroy, mutilate or conceal an object with the intent to impair the object's availability for use in an official proceeding, in violation of federal law. The English charges sheet transposed these U.S. crimes into a conspiracy "to pervert the course of public justice, Page 73 namely, the process of a federal grand jury's criminal investigation into price-fixing in the carbon products industry."

In resisting extradition on count 1, Appellant contends that taking part in a cartel, in the absence of aggravating conduct, was not, at the material time (1989-2000), a criminal off ence at common law or under any U.K. statute. Therefore, the conduct of which the U.S. accuses him would not have been criminally punishable in the U.K. If Appellant is right, the U.S. petition would not meet the "dual criminality" requirement of the Extradition Act 2003.

In a composite opinion, the Judicial Committee of the House of Lords reverses on count 1 and upholds counts 2-4 and remands for further inquiry on the possible prejudicial impact of delay.

The House then laid out its rationale. "By the end of the 19th century, it was settled that between master and servant, principal and agent and the buyer and seller of a business, that covenants in restraint of trade were, in general, void and so unenforceable, unless their restrictions were reasonable in the interests both of the parties themselves and of the public. The House so ruled in Nordenfelt v. Maxim Nordenfelt Guns and Ammunition Co. Ltd. [1894] A.C. 535; and that ruling represents the law today." [¶ 8].

" ...The common law recognised that an agreement in restraint of trade might be unreasonable in the public interest. In such cases, the English courts would hold the agreement to be void and unenforceable. In the absence of aggravating features such as fraud, misrepresentation, violence, intimidation or inducement of a breach of contract, however, such agreements were neither actionable or indictable. The House affirmed the...