In reviewing British citizen’s liability for extradition
to U.S. on fraud charges of concealing antitrust violations, U.K. Supreme Court
decides that Article 8 of European Convention on Human Rights requiring
evaluation of its impact on disruption of Applicant’s family life did not apply
to preclude rendition of Applicant to U.S. for trial
In 2004, the United States government asked the United
Kingdom to extradite Ian Norris (Respondent), a British citizen, to stand trial
on a federal grand jury indictment containing four counts. Respondent is a
former CEO of a prominent international maker of carbon products.
The first charge was that the Respondent had conspired with
other producers of carbon products to run a price fixing agreement or cartel in
several countries including the United States. Counts 2 to 4 alleged a
conspiracy to obstruct justice by tampering with witnesses and by causing a
person to alter, destroy, mutilate or conceal various documents with intent to
make them unavailable for use in an official proceeding.
The following year, British authorities arrested the
Respondent in England and the U.S. filed extradition proceedings in the Court
of Queen’s Bench (QB). The QB held that the offenses described in the
extradition request constituted extraditable crimes for the purposes of the treaty
between the U.S. and the U.K. [see Extradition Treaty Between the Government of
the United States of America and the Government of the United Kingdom of Great
Britain and Northern Ireland, U.S.‑U.K, Mar. 31, 2003, S. TREATY DOC. NO, 108‑23;
as amended Dec. 16, 2004; in force April 26, 2007]. Respondent appealed.
The main issues raised by his appeal relate to the proper
approach that the English courts should take where Respondent contends that
extradition will interfere with his rights to respect for his private and
family life under Article 8 of the European Convention for the Protection of
Human Rights and Fundamental Freedoms [312 U.N.T.S. 221; E.T.S. 5; plus
modifying Protocols]; from Barry E. Carter, 2010 Selected Documents of
International Law at 512 [Convention].
Article 8 provides that: “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.”
The QB dismissed the Respondent’s appeal against that
decision. A panel of the Supreme Court of the United Kingdom, however, granted
leave to appeal to the full Court. It agreed that the price‑fixing conduct
would not, if committed in England and Wales at the relevant time, have
constituted an offense known to English law and so was not capable of
constituting an extraditable offence. The Supreme Court remitted the
determination of the remaining issues raised by Respondent back to the lower
court.
At that hearing, Respondent contended that the ill‑health of
both him and his wife, who were then aged 65 and 64 respectively, their mutual
dependency based on a long and close marriage, and the effect that his
extradition would have on his wife’s depressive illness, made the interference
with their family rights under Article 8 of the Convention disproportionate to
the public interest in his extradition for charges subsidiary to the main
cartel charge.
The QB rejected that submission and, pursuant to the 2003
Extradition Act, sent the case to the Home Secretary, who ordered the
Respondent’s extradition. The Divisional Court dismissed the Respondent’s
appeal against those decisions. The case again came before the full Supreme
Court. That Court again dismisses Respondent’s appeal.
The Court held that there could be no absolute rule that any
interference with Article 8 rights as a result of extradition would be enough.
There was a compelling public interest in extradition as part of the process
for ensuring the prevention of disorder and crime. Since the probability of
some degree of interference with family life was inherent in the process of
international extradition, the results of this interference with those rights
had to be highly serious before they could outweigh the public interest in
giving effect to requests for extradition. It would have to make the
extradition of the individual disproportionate. When considering the
proportionality of a particular extradition, the judge could take into account
the relative gravity of the offense and the effect of extradition on members of
the extraditee’s family.
The charges of obstructing justice were of themselves
offenses of major gravity. Moreover, the effects of extradition on the
Respondent’s close family ties [the severity of which had increased by reason
of the delay brought about by his asserting his legal rights in regard to the
price‑fixing charge,] were not so excessive as to render that extradition out
of proportion to the public interest in crime prevention. Accordingly, the U.K.
Supreme Court dismisses Respondent’s appeal.
[The following are selected passages from the Court’s
thorough lead opinion by Lord Phillips of Worth Matravers PSC with which all members
of the Court concurred].
“The Extradition Act of 2003 created a new extradition
regime intended to simplify the process. The new regime transferred
considerations that were formerly for the discretion of the Secretary of State
to the courts; these include the compatibility of a particular extradition with
Convention rights. ...”
“The Act defines the eligible territories. Category 1
consists of members of the European Union which operate the European Arrest
Warrant. Category 2 territories are those designated by the U.K. Secretary of
State. ...The United States is one of these.”
“Under both procedures, the appropriate judge has to carry
out an extradition hearing at which he considers whether there exists any of
the prescribed statutory bars to extradition. [such as] compatibility with
Convention rights. If yes, an order for extradition must follow. If no, the
person must be discharged. General provision is made in both for circumstances
that may well involve interferences with Convention rights.”
“Public international law does not impose a general duty
upon countries to accede to requests for extradition. Obligations to extradite
arise out of bilateral treaties. [See above] None the less, a number of
Conventions have been concluded that impose on states an obligation to
extradite or prosecute in respect of certain offences or which limit the
grounds upon which a state can refuse to extradite. These reflect increasing
international cooperation in the fight against crime.” [576].
“The relevant [bilateral] treaty in the present case is the
Extradition Treaty of 1972 (Cmnd 6723) between the United Kingdom and the
United States. [T]his applies in the case of any extradition proceedings in
which the extradition documents were submitted before 26 April 2007. On that
date a new treaty, the Extradition Treaty of 2003 (Cm 5821) came into force.
The extradition documents in this case were submitted in January 2005.”
“The 1972 Treaty imposes, subject to specified exceptions,
mutual obligations to extradite in respect of offences which carry a sentence
of at least 12 months’ imprisonment in each jurisdiction. Article V(2) of the
1972 Treaty provides that extradition may be refused on any ground which is
specified by the law of the requested party. Thus the United Kingdom will not
be in breach of its treaty obligations if, by reason of the 2003 Act,
extradition is refused on human rights grounds.”
“Between the contending parties, ‘[t]he following matters
are common ground: (I) In this case, as in most extradition cases, extradition
of [Respondent] from this country will interfere [to some extent] with his
exercise in this country of his right to respect for his private and family
life. (ii) This interference will be in accordance with the law. (iii) The
critical issue in this case is whether this interference is ‘necessary in a
democratic society for the prevention of disorder or crime’. (iv) Resolving
this issue involves a test of proportionality. The interference must fulfill a
‘pressing social need’. It must also be proportionate to the ‘legitimate aim’
relied upon to justify the interference.”
“The Government contends that the legitimate aim, or
pressing social need, is the honouring of extradition arrangements (an
important aspect of the prevention of [international] crime), that this aim
weighs heavily in the scales and that the circumstances in which interference
with Article 8 rights will not be proportionate to it will be exceptional.”
“[Counsel] for Respondent does not challenge this assertion.
He accepts that it will only be in exceptional circumstances that extradition
will be refused on the ground that it involves a disproportionate interference
with Article 8 rights. He submits, however, that this fact cannot be translated
into a legal principle. The court cannot impose on a person challenging
extradition a threshold requirement of demonstrating that his case is
exceptional. He submits that this is what the Divisional Court did. “ [577].
“The primary issue of principle is whether the court can
properly require a person resisting extradition on Article 8 grounds to
demonstrate exceptional circumstances. Respondent contends that the Divisional
Court erred in doing just this. His argument is precisely expressed in the
following two paragraphs of his written case:”
“Hence the question which they certified as being of general
public importance: is the public interest in honouring extradition treaties
such as to require, in any extradition case, that an appellant must show
striking and unusual facts or reach a high threshold if his Article 8 claim is
to succeed The effect is to create a strong presumption against the application
of Article 8 in extradition cases, and to require exceptional circumstances
before any objection to extradition on Article 8 grounds can succeed, a
proposition which has been rejected by the House of Lords, following a
substantial body of case law in the European Court of Human Rights [ECHR].” “In cases of this type, [t]he correct
approach is to balance the public interest in the extradition of this
particular accused against the damage which would be done to the private or
family life of this particular accused and his family. The court must ask how
much damage will really be done to the orderly functioning of the system of extradition,
or the prevention of disorder or crime, by declining to extradite Respondent in
this case. And whether that damage is so great as to outweigh the devastating
impact that extradition would have upon the rest of his and his wife’s life
together. These questions must, moreover, be answered with an eye to the fact
that the test imposed by Article 8(2) is not whether his extradition is on
balance desirable, but whether it is necessary in a democratic society.
“A number of subsidiary issues of principle in relation to
the application of the test of proportionality in an extradition case became
apparent in the course of argument.” [590].
“I agree that there can be no absolute rule that any
interference with Article 8 rights as a consequence of extradition will be
proportionate. The public interest in extradition none the less weighs very
heavily indeed. In Wellington [2009] AC 335, the majority of the House of Lords
held that the public interest in extradition carries special weight where
Article 3 is engaged in a foreign case. I am in no doubt that the same is true
when considering the interference that extradition will cause in a domestic
case to Article 8 rights enjoyed within the jurisdiction of the requested
state. It is certainly not right to equate extradition with expulsion or
deportation in this context.”
“It is of critical importance in the prevention of disorder
and crime that those reasonably suspected of crime are prosecuted and, if found
guilty, duly sentenced. Extradition is part of the process for ensuring that
this occurs, on a basis of international reciprocity. It is instructive to
consider the approach of the Convention to dealing with criminals or suspected
criminals in the domestic context. Article 5 includes in the exceptions to the
right to liberty (I) the arrest of a suspect, (ii) his detention, where
necessary, pending trial, and (iii) his detention while serving his sentence if
convicted.”
“Such detention will necessarily interfere drastically with
family and private life. In theory a question of proportionality could arise
under [Convention] Article 8(2) . In practice, it is only in the most
exceptional circumstances that a defendant would consider even asserting his
Article 8 rights by way of challenge to remand in custody or imprisonment:
Normally it is treated as axiomatic that the interference with Article 8 rights
consequent upon detention is proportionate.”
The Court recalls that Article 8(2) permits interference
with an individual’s right to respect for his private and family life in
certain circumstances. The Court considers that the bringing of criminal
proceedings and the imposition of a punishment following conviction fall within
these exceptions since they are in accordance with the law and pursue
legitimate aims, namely, public safety, the prevention of disorder and crime
and protection of the rights and freedoms of others. The court therefore
concludes that the prosecution and imprisonment of the Applicant does not raise
any issues under Article 8 of the Convention.
“There is an analogy between the coercion involved in
extradition and the coercion involved in remanding in custody a prisoner
reasonably suspected of wishing to abscond. In either case the coercion is
necessary to ensure that the suspect stands his trial. Each is likely to
involve a serious interference with Article 8 rights. The dislocation of family
life that will frequently follow extradition will not necessarily be more
significant, or even as significant, as the dislocation of family life of the
defendant who is remanded in custody.”
“It seems to me that, until recently, it has also been
treated as axiomatic that the dislocation to family life that normally follows
extradition as a matter of course is proportionate. This perhaps explains why we
have been referred to no reported case, whether at Strasbourg or in this
jurisdiction, where extradition has been refused because of the interference
that it would cause to family life.”
“The reality is that only if some quite exceptionally
compelling feature, or combination of features, is present that interference
with family life consequent upon extradition will be other than proportionate
to the objective that extradition serves. That, no doubt, is what the
commission had in mind ... when it stated that it was only in exceptional
circumstances that extradition would be an unjustified or disproportionate
interference with the right to respect for family life. I can see no reason why
the district judge should not, when considering a challenge to extradition
founded on Article 8 , explain his rejection of such a challenge, where
appropriate, by remarking that there was nothing out of the ordinary or
exceptional in the consequences that extradition would have for the family life
of the person resisting extradition.”
’Exceptional circumstances’ is a phrase that says little
about the nature of the circumstances. Instead of saying that interference with
Article 8 rights can only outweigh the importance of extradition in exceptional
circumstances. it is more accurate and more helpful, to say that the
consequences of interference with Article 8 rights must be exceptionally
serious before this can outweigh the importance of extradition. A judge should
not be criticised if, as part of his process of reasoning, he considers how, if
at all, the nature and extent of the impact of extradition on family life would
differ from the normal consequences of extradition.”
“After considering the Strasbourg jurisprudence, the House
[of Lords] concluded that, when considering interference with Article 8, the
family unit had to be considered as a whole, and each family member had to be
regarded as a victim. I consider that this is equally the position in the
context of extradition.”
“Indeed, in trying to envisage a situation in which
interference with Article 8 might prevent extradition, I have concluded that
the effect of extradition on innocent members of the extraditee’s family might
well be a particularly cogent consideration. If extradition for an offence of
no great gravity were sought in relation to someone who had sole responsibility
for an incapacitated family member, this combination of circumstances might
well lead a judge to discharge the extraditee under ... the 2003 Act.”
“Extradition proceedings should not become the occasion for
a debate about the most convenient forum for criminal proceedings. Rarely, if
ever, on an issue of proportionality, could the possibility of bringing
criminal proceedings in this jurisdiction be capable of tipping the scales
against extradition in accordance with this country’s treaty obligations.
Unless the judge reaches the conclusion that the scales are finely balanced, he
should not enter into an inquiry as to the possibility of prosecution in this
country.”
“Human rights are in issue and it is for this court to reach
its own decision as to whether Applicant’s extradition would be compatible with
his article 8 rights.” [594].
“... The gravamen of the case of obstructing justice appears
in the following passages of the judgment ... in the earlier proceedings—based
on a deposition of Lucy P. McClain, a trial attorney for the antitrust division
of the U.S. Department of Justice:”
“‘[Applicant] instructed, through a task force he set up for
the purpose, all Morgan entities involved in the price fixing conspiracy to
remove, conceal or destroy any documentary material, in particular Morgan’s
sales files in Europe, evidencing Morgan’s involvement in the conspiracy. He
also instructed the retention and concealment of certain documents to enable
Morgan to continue monitoring the working of the conspiracy.”
“‘In about November 1999, [Applicant] met several of the co‑conspirators
in England to discuss the United States authorities’ investigation into their
conspiratorial dealings and meetings, and to devise a false explanation, other
than price fixing, to be put to the authorities for the meetings. As Ms.
McClain put it in her affidavit: [Applicant] and his subordinates discussed
ways in which they could conceal the true purpose of the price‑fixing meetings
when asked about them. They decided to falsely characterise their meetings with
competitors as discussions of legitimate joint ventures rather than disclose
the fact that they were price fixing meetings.’”
“‘[Applicant] expressed his concern that the United States
investigators would not believe Morgan’s false explanation that the meetings
were held to discuss joint ventures, in part because Morgan had no
contemporaneous notes of the meetings to support its joint venture explanation.
[Applicant] then directed his subordinates to create false summaries of the
price fixing meetings that they would use as a guide or script in answering any
future questions about what had occurred at their meetings. ” In view of this
showing, all members of this Court agree that it should dismiss the appeal
The courts below also considered whether it was pertinent in
cases of this kind to take into account the feasibility of prosecuting
Applicant for his U.S. violations in the courts of the United Kingdom. This
prompted this brief judicial note. “Per curiam. Rarely, if ever, on an issue of
proportionality, could the possibility of bringing criminal proceedings in the
United Kingdom be capable of tipping the scales against extradition in
accordance with its treaty obligations. Unless the judge reaches the conclusion
that the scales are finely balanced, he should not enter into an inquiry as to
the possibility of prosecution in the United Kingdom.”
Citation: Norris v. United States, [2010] U.K.S.C. 9;
[2010] 2 W.L.R. 572 (2010).
**** Patrick Michael Megaro is a partner at Halscott Megaro PA. His primary areas of practice are criminal defense, criminal appeals, post-conviction relief, civil appeals, and civil rights litigation. Attorney Profile at: https://solomonlawguild.com/patrick-michael-megaro; Attorney News at: https://attorneygazette.com/patrick-megaro%2C-esq#ab17a387-a757-4c0f-bc37-81f556fd15ea
