England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM SOUTHWARK CROWN COURT
HIS HONOUR JUDGE BEDDOE
T20177286

		Royal Courts of Justice Strand, London, WC2A 2LL
		18/05/2018

LORD JUSTICE GROSS :

INTRODUCTION

1. This matter concerns the specialty rule. The Applicant has been extradited to this country from Sweden. He faces here, in the event, a single Count of Conspiracy to Corrupt, contrary to s.1 of the Criminal Law Act 1977. Insofar as relevant, Swedish Law has a 10-year limitation period on criminal liability. As is common ground, the Applicant cannot be tried here for offences time barred under Swedish Law. However, the Respondent ("the SFO") seeks to rely on evidence dating back more than 10 years before the extradition. The principal issue in dispute before us is whether, in the context of a continuing offence, the rule of specialty precludes the SFO from adducing such evidence to prove the commission of an offence falling within the relevant time period.
2. The Applicant said "yes"; the SFO "no". On the 15^th January 2018, in the Crown Court at Southwark, HHJ Beddoe, delivered a ruling ("the Ruling"), following a preparatory hearing held pursuant to s.7 of the Criminal Justice Act 1987 ("the CJA 1987") - and, on this issue, agreed with the SFO. From that Ruling, the Applicant sought leave to appeal to this Court.
3. The Judge further held that the particulars of the offence set out in the indictment should be amended to reflect the limitations of Swedish Law in respect of the period for which he could be tried in Sweden. From that Ruling, the SFO sought leave to cross-appeal ("the cross-appeal") to this Court.
4. The Registrar referred both the Applicant's and the SFO's applications to the Full Court.
5. At the conclusion of full argument on the 13^th February, we announced our decision. Leave to appeal would be refused, both in respect of the Applicant's application and the SFO's cross-appeal. However, as we heard full argument and now give the full (if relatively brief) judgment which follows, this judgment can be cited.
6. In the light of the forthcoming trial (of the Applicant and a co-defendant) in October 2018, the provisions of s.11 of the CJA 1987 apply to these proceedings, very largely restricting reporting. Given the issue in dispute relating to specialty, that would seem unfortunate. Accordingly, upon the judgment being anonymised, we shall lift the restrictions.
7. Before proceeding further, it is convenient to explain the meaning of specialty. For these purposes, it is very largely unnecessary to go beyond the observations of Hughes LJ (as he then was) in R v Seddon [2009] EWCA Crim 483; [2009] 1 WLR 2342, at [4] – [5]:

"4. Extradition is a process involving agreement between sovereign states. The requesting state has no power to send its policemen into the requested state to arrest a prisoner who has run away there. That would be a direct infringement of the sovereignty of the requested state. So the requesting state depend on the voluntary co-operation of the state where the fugitive is now to be found. Unsurprisingly states found that they generally had a common interest in A surrendering prisoners to B if B asked, providing that B entered into a reciprocal agreement to surrender those whom A wanted when the boot was on the other foot. On the other hand, states generally wished to retain the power to refuse to surrender in some circumstances…..

5. Historically, extradition was generally achieved through separate bilateral treaties between states. Commonly the power of the requested state to refuse extradition in some circumstances was preserved by the terms of such treaties. To give effect to that practice, the principle evolved that if A requested a prisoner from B, A would identify the offence for which the prisoner was wanted so that B could decide whether there was a sufficient reason to refuse to surrender him. With that went the practice that if surrendered the prisoner could only be dealt with for the offence for which he had been sought, otherwise plainly the surrendering state's power to refuse would be circumvented. That principle is called specialty. It has been recognised in this country by successive statutes dealing with our local rules for extradition both inward and outward. The rationale for it may owe something to the protection of the individual, but it plainly lies principally in the international obligation between states."

(See too, Welsh v Home Secretary [2006] EWHC 156 (Admin); [2007] 1 WLR 1281, at [37] – [38].)

THE FACTUAL HISTORY

8. The factual background can be shortly summarised. A is a major engineering company with subsidiaries in many countries, including 'A Limited' ("APL") based in the UK and 'A Sweden AB' ("APS") based in Sweden.
9. The Applicant was an engineer employed as a Sales Manager and, later, a Sales Director of APS. From 2002 to 2010, he worked with NR and JV of APL.
10. The Applicant is accused of paying bribes to assist APL and APS win and execute valuable contracts with a power station in Lithuania ("LPP"). In 2005, A was awarded two contracts, totalling €239 million. The bribes were said to have been paid between 2004 and 2010 to power station officials, politicians and others, via a "consultant" company ("V"), a sub-contractor on one of the contracts and civil engineering works at a church in Lithuania.
11. The SFO alleges that the timing and amount of the bribes was set by reference to the contracts that APL and APS signed with LPP in 2005. APL/APS were paid by LPP on reaching contractual milestones. Payments to V were made by APL/APS according to the same timetable.
12. As already foreshadowed, the SFO only seeks to proceed against the Applicant on a single count of Conspiracy to Corrupt contrary to section 1 of the Criminal Law Act 1977, which encompasses all the alleged criminality and conduct and spans the period between the 4^th day of January 2002 and the 31^st day of March 2010.
13. Extradition of the Applicant was sought by way of a European Arrest Warrant ("EAW") issued on the 13^th April 2017 ("the EAW").
14. In the light of questions from the Swedish authorities, arising from the Swedish 10 years' limitation rule as to crimes taking place after May 2007 (and thus not time-barred), additional information was furnished by the SFO on a (standard) Form M, as follows:

" The following corrupt payments were made after May 2007, which amount to criminal offences under the Prevention of Corruption Act 1906 section 1 and Criminal Law Act 1977 section 1:

Dates	Amount	Handler
5-13 Sept 07	£ 47,500	V
23 Oct 07	€844,366	K
16-28 May 08	€250,000	V
23-30 July 09	£142,500	V
11 Sept 09	€ 20,000	V
4-6 Nov 09	£ 47,500	V
11 Dec 09	€450,000	V
10 Feb 10	£ 47,500	V

This is £285,000 + €1,564,366

The table above has three columns: date, amount…and handler. The handler is the company through which the bribe payments were channelled by GW/A. We do not allege that the companies in the table (V/K) were the final recipients of the bribes or that the bribes were finally dispersed on that date, but it is correct to say that these companies handled the bribes on behalf of [the Applicant], and that payment of the bribe monies were made by A on the date shown."

15. The matter came before the Vaxjo District Court in Sweden ("the Swedish Court") which, by its Decision dated 24^th May, 2017, granted the surrender of the Applicant to Great Britain for prosecution in accordance with the EAW, "with the exception of the acts that have taken place prior to May 2007". The acts which the Applicant is alleged to have committed would be characterised in Swedish Law as "gross bribery" or the "gross giving of bribes". From the EAW, together with the additional information supplied, it was clearly evident that the Applicant was suspected of "passive bribery involving the payments that occurred during 2007-2010".
16. In the reasons given for its Decision, the Swedish Court said this:

" As the District Court has understood the arrest warrant, it now cites that the alleged acts only concern the payments that have occurred after May 2007. According to the District Court, the acts in the arrest warrant are considered to correspond to the giving of bribes in accordance with Swedish law. Against the background of the circumstances that are stated in the arrest warrant and primarily with consideration of the significant sum that is alleged to have been paid the District Court considers the acts to be a gross crime. Swedish laws on limitation thereby do not constitute an obstacle for surrender according to the arrest warrant……

In summary, no circumstances have arisen to give reason to refuse surrender to Great Britain for prosecution in accordance with the European arrest warrant….This is with the exception of the alleged acts that were conducted prior to May 2007…"

17. Various subsequent exchanges took place, focusing on the meaning of the judgment of the Swedish Court.
18. On the 31^st August, 2017, the SFO's File Note recorded a discussion with the Swedish Director of Public Prosecutions (a Mr Andrews) who handled the extradition of the Applicant. The File Note recorded Mr Andrews as saying this:

"……Mr Andrews was very clear…on the telephone that [the Applicant's] extradition was only in respect of conduct post-May 2007.

He commented that in Sweden the evidence of the conduct prior to May 2007 would be admissible as important background as it contextualises why [the Applicant] did post May 2007 what he did."

19. In a subsequent letter dated 13^th September, 2017 ("the 13^th September letter"), from the SFO to the Applicant's solicitors (in this jurisdiction) and in response to those solicitors having raised specialty as an issue, the SFO said this:

" Having considered the judgment further, we accept that the Swedish court authorised extradition only in respect of your client's conduct from May 2007. Given that your client is charged with conspiracy, it is our view that the jury can convict him on the basis of his acts in furtherance of the conspiracy from May 2007. However, this does not prevent the prosecution from adducing evidence of his acts prior to that date as explanatory evidence of his later acts. We also accept that the judge should be invited, in the event of a conviction, only to sentence him for his acts from May 2007 onwards."

20. On the 18^th December, 2017, the Chief Prosecutor of the Swedish National Anti- Corruption Unit responded to a question from the SFO, saying this:

" ….Concerning your specific question: The statute of limitation does not prevent a prosecutor from submitting information as evidence that concerns facts or events that occurred under a period of time that has been statute barred (in light of the particular offence in question). What is statute barred is the offence, not the evidence that may be relevant for the understanding of another offence. Using your words, the prosecution can adduce evidence of what [the Applicant] said or did before May 2007 to prove that after that period he was still acting in furtherance of the said pre-existing conspiracy. "

21. Further exchanges took place between those representing the Applicant in Sweden and the Swedish authorities. Thus, on the 19^th January 2018, (Swedish) counsel for the Applicant asked the Swedish prosecutor, "In what way will Sweden verify that the adjudication at the English court will not include deeds committed prior to May 2007?" The answer from the prosecutor was that "The UK is a state governed by law and I can not see any reason why the conditions in the decision will not be respected. The entire convention is based on a mutual recognition."
22. Pausing here, it may at once be seen that the Applicant's objection to the SFO adducing evidence pre-dating May 2007 on the ground that it did not respect the Swedish Law limitation period, is not one which (on the material before us) would have prevailed in Sweden. In our judgment, this serves as something of a "reality check" when assessing the Applicant's arguments.

THE RULING OF THE JUDGE

23. In his impressive Ruling, the Judge spoke of a "sustained conspiracy to corrupt" in which, on the evidence, the Applicant had played a major role. Although the Applicant was a citizen of Sweden and for the most part had conducted his activities there or in Lithuania, the Judge observed that "a substantial measure of the activities of the conspiracy occurred within this jurisdiction (at least prior to May 2007)…". APL had pleaded Guilty to a Count similar to that on which the Applicant had been arraigned (Count 3 on the Indictment). NR had pleaded Not Guilty and was tried in October 2017 but the jury could not agree and his retrial had been fixed for October 2018. The SFO's aim was a joint trial of the Applicant and NR at that time. (JV, it may be noted, has already pleaded Guilty to Count 2.) The Applicant had been invited to surrender voluntarily but declined to do so; the extradition proceedings had followed.
24. The supplementary material furnished by the SFO to the Swedish authorities (through Form M and an Addendum thereto) set out in detail "clear evidence of [the Applicant's] continuing participation in the conspiracy within the period May 2007 and May 2010, and shows that the participation reflects discussions and arrangements by [the Applicant] and others including NR made before that opening date, and with others including JV [now contracted to both APL and APS but continuing to be resident in the UK and operational at APL's Derby office] after that date."
25. The Judge recorded that there was no offence in Swedish Law corresponding precisely to conspiracy to corrupt but substantive bribery offences would be actionable in Sweden, "would rank as gross crimes and would be potentially imprisonable with a maximum sentence of 8 years". Accordingly, the limitation period under Swedish Law was 10 years. The Applicant had unsuccessfully appealed the Decision of the Swedish Court to the Swedish Court of Appeal and the Swedish Supreme Court. We interpose to say that the terms of the two Swedish Appellate judgments had (unaccountably) not been available to the Judge. After some pressure from us they were produced to this Court and take matters no further forward. The Judge further alluded to the exchanges subsequent to the judgment of the Swedish Court – set out above – and underlined that the view expressed by the Swedish authorities, namely, that Swedish Law did not restrict the evidence that could be adduced to prove the offence was not "challenged as an incorrect exposition of Swedish Law".
26. Coming to his conclusions, the Judge said this:

" ….were I to decide on the Specialty argument that [the Applicant] could only be tried on an indictment limiting the conspiracy to the period May 2007 to March 2010, that the evidence of all that had gone before would (subject to any specific arguments as to the admissibility of individual parts of it) be admissible as relevant evidence showing a course of conduct by [the Applicant] in the furtherance of an agreement in existence with the 2007 to 2010 period. That not only accords with Swedish law as just recited but is of course consistent with English law…."

Even were the Judge to have accepted that the Swedish Court had made its Decision in the belief that no evidence outside the limitation period would be relied upon, "that cannot intrude on relevant rules of evidence and admissibility of the court which subsequently comes to try the person extradited".

27. The Judge rejected a suggested material distinction, advanced on behalf of the Applicant, between "evidence of guilt and evidence supportive of guilt".

" If prosecution of [the Applicant] for conspiracy were limited on indictment to the period in question evidence that the agreement had been formed before the period particularised would be no bar to the admissibility of that evidence to establish the defendant's continued participation in the event within the period particularised."

28. The Judge next turned to consider s.146 of the Extradition Act 2003 ("the 2003 Act") (see below), in order to determine whether the concept of specialty was breached by the terms of the Count presently advanced by the SFO. In this regard, the Judge concluded that if the charge on which it was intended to try the Applicant fell outside s.146(3)(a), it would offend the rule of specialty. It had not been the intention of the Swedish Court to surrender the Applicant "in circumstances that would put him at greater risk than he would be had his alleged offending been justiciable in Sweden".
29. Accordingly, the Judge came to his conclusion, adverse to the SFO, as to the Particulars of Count 2 on the indictment:

" It follows that although the Count as drawn properly reflects the offence for which the defendant was extradited and falls within s.146(3)(a) I conclude that the concept of specialty would be breached if the particulars of the count did not reflect the limitations of Swedish law in respect of the period for which he could be tried in Sweden. Although the offence is a continuing one I am satisfied on the balance of probabilities that the specialty rule would be breached if the matter proceeded to trial on the current indictment and that it should be amended to read "between the 1^st day of May 2007 and" [instead of "between the 4^th day of January 2002] to confirm the point that [the Applicant] cannot be convicted of the offence unless he continued to be a party (or became a party) to the conspiracy identified after that date."

THE RIVAL CASES

30. For the Applicant, Mr Hawes QC submitted that the Judge had erred. The Applicant could not be "dealt with" (i.e., tried or sentenced), within the meaning of s.146 of the 2003 Act, for conduct pre-dating May 2007. While it was not said that the Swedish Court had been misled, nonetheless Mr Hawes submitted that his approach reflected the manner in which the case had been put to the Swedish prosecutors and Swedish Court; it therefore honoured the United Kingdom's international obligations. The Swedish Court had not consented to the "wider view of conduct", permitting the adducing of evidence pre-dating May 2007 – and no retrospective consent had been sought. So far as reliance was placed by the SFO and the Judge on (English) authorities, Mr Hawes accepted that there was case law supporting the principle that the admissibility of evidence was controlled by the trial court, not the extraditing court; however, the authorities were all distinguishable. Mr Hawes submitted that, in the "unusual, possibly unique circumstances" of this case, it was only his approach that gave "effective" or "genuine" protection to the Applicant's specialty rights. In summary, the Court should grant the Applicant leave to appeal and allow the appeal by finding:

"(1) Only conduct/acts post May 2007 were the extradited offence, pursuant to s.146(3)(a) EA.

(2) By reason of so finding, the evidence of acts pre-May 2007 was not conduct ….within s.146(3)(a), and accordingly the Applicant does not fall to be 'dealt with' for them pursuant to s.146(2) EA.

(3) The s.146(2) EA protection can, and should, be enforced by prohibiting the admissibility of the evidence of acts prior to May 2007."

31. For the SFO, Mr Evans QC submitted that the Judge was right and that the Applicant's application for leave to appeal should be refused. It was better to focus in extradition law on conduct, rather than labels – labels were unhelpful, given that offences in different countries did not precisely correspond. Mr Evans explained that, in Swedish Law, a charge of conspiracy was only available for inchoate offences; if a "conspiracy" was carried into effect, then only the substantive offences were prosecuted. Here the conduct complained of began before May 2007 and continued after that date; what the Applicant did after May 2007 was in furtherance of an agreement entered into before then. The case accordingly concerned the application of the specialty rule in the context of a course of criminal conduct. As to the materials supplied by the SFO to the Swedish authorities, there was nothing unusual here. Form A and Form M were part of the EAW extradition system; Form A had a character limit – hence the use of Form M (and, subsequently an Addendum thereto). Mr Evans pointed to the linkage between the promise of bribes and their subsequent payment, involving a precise correspondence in amount and in accordance with an agreed timetable. If the Applicant's submissions were well-founded, then the SFO would not be in a position to explain the timetable by reference to evidence as to the promise. Whatever had been said by the SFO in correspondence, there was no difference between "explanatory evidence" and evidence of Guilt; the evidence here, pre-dating May 2007, coloured the behaviour thereafter. It was bizarre to invite this Court, as the Applicant did, to introduce into the specialty rule an additional and novel evidential rule, when there was no justification for it and there was, moreover, no such rule in Swedish Law. The Applicant's submissions betrayed a misunderstanding of the specialty rule which was not concerned with evidence. The Applicant's specialty protection neither justified nor required the exclusion of evidence of acts prior to May 2007. The authorities were against the Applicant and could not be distinguished as he sought to do. Admissibility, relevance and other protections going to the fairness of the trial were for the trial Judge.
32. As to the cross-appeal, Mr Evans resisted the narrowing of the Particulars as ordered by the Judge. Such narrowing was unnecessary and, therefore, undesirable. Moreover, the intention was a joint trial and it would be preferable to avoid differing Particulars in respect of the different defendants. In any event, the Applicant's specialty protection would be respected by way of clear direction and a restriction on sentencing.
33. In response to the SFO's cross-appeal, the Applicant submits that it was technical and without merit; the Judge was right to order the narrowing of the Particulars which would cause the jury to focus on the conduct for which the Applicant could be convicted and would eliminate the risk of the jury convicting the Applicant for non-extradited conduct.

DISCUSSION

34. (1) The Legal Framework: As explained by Hughes LJ in Seddon, at [6] and following, within the area of the European Union ("EU"), "the old profusion of bilateral treaties" covering extradition has been replaced by "what is in effect a general agreement between members states", taking the form of a European Council Framework Decision ("the Framework Decision"), dated 13 June 2002 (2002/584/JHA)(OJ 2002 L190, p1). Within the limits set by the Framework Decision the process of extradition between EU member states is greatly simplified and the request for surrender takes the form of the issue of a common form EAW. By way of EU treaty provisions, the Framework Decision is binding upon EU member states and amounts to "a multilateral treaty creating international obligations binding upon each of the member states". However, it is not directly effective as part of the law of individual member states. Thus, Parliament has given effect to the Framework Decision in English Law by way of the 2003 Act. That Act makes separate provision for extradition between the United Kingdom and other members of the EU, known in the Act as category 1 territories. "Inward extradition" to the United Kingdom, with which we are concerned, is dealt with in ss. 142 to 149 of the 2003 Act.
35. The specialty rule has been preserved by Art. 27(2) of the Framework Decision. In domestic law, the key provisions are contained in s.146 of the 2003 Act and, insofar as material, provide as follows:

"146 Dealing with person for other offences

(1) This section applies if a person is extradited to the United Kingdom from a category 1 territory in pursuance of a Part 3 warrant.

(2) The person may be dealt with in the United Kingdom for an offence committed before his extradition only if –

(a) the offence is one falling within subsection (3) ….

(3) The offences are –

(a) the offence in respect of which the person is extradited;

(b) an offence disclosed by the information provided to the category 1 territory in respect of that offence;

….."

36. By reference to Seddon, the general nature of specialty will already be apparent: if surrendered the prisoner could only be dealt with for the offence for which he had been sought – otherwise, the requested state's power to refuse would be circumvented; moreover, its principal rationale lies in the international obligations between states. Crucially, specialty is concerned with offences – as is indeed clear from the language of s.146 of the 2003 Act - not the evidence adduced in the requesting state to prove their commission. Furthermore, this distinction is well-established in authority, to which we next turn.
37. In R v Aubrey-Fletcher, Ex parte Ross-Munro [1968] 1 QB 620, following extradition proceedings begun in England, the defendant was extradited from France on a warrant supported by depositions charging him with forging and uttering transfers and causing money to be transferred on forged transfers knowing them to be forged. In committal proceedings, the prosecution sought to adduce further evidence relating to the charges. The defendant objected, contending that the further evidence was inadmissible by virtue of s.19 of the Extradition Act 1870 which provided that the extradited person "…shall not….be triable…for any offence…other than such of the said crimes as may be proved by the facts on which the surrender is grounded". As submitted on the defendant's behalf (see, at p.626), the person surrendered to this country "cannot be committed or put in peril of conviction on any facts other than those put forward to secure his surrender".
38. The defendant's applications were dismissed. Lord Parker CJ said this (at p.627):

"This is a novel point and, if it be right, it has an alarming consequence. It would mean that not only is this a restriction on the procedure on committal, a restriction on the receiving of evidence, but indeed logically it would affect the trial, because no evidence would be admissible at the trial unless it was in regard to facts raised in the surrender documents. Another alarming consequence would be that if, when the person concerned arrives in this country after being surrendered by the foreign state, he is arrested, cautioned and questioned by a police officer, evidence of what he said, whether for him or against him, would be quite inadmissible.

…Parliament cannot have intended any such thing in this section. Two things are quite clear…. One is that the section is designed to prevent a man from being tried after his surrender for a crime other than that for which he has been extradited…..the object is to ascertain the type of crime for which he can be tried in this country after surrender….

Secondly…..the section is not in any way intended to interfere with the ordinary procedures and laws of evidence in this country whether in committal proceedings or at the trial…. "

39. In our respectful view, Salmon LJ's judgment went to the heart of the matter (at p.629):

"….In my judgment section 19 of the Extradition Act 1870, is in no way concerned with procedure but solely with jurisdiction. It does not seek to limit or prescribe the evidence which may be called at a criminal trial. It is concerned solely with the type of crime for which our courts have the power to try a man who has been extradited to this country. The clear object of the section is to prevent, for example, a man who has been surrendered on a warrant charging him with forgery, being tried in this country for a murder that he is alleged to have committed before the surrender."

40. Welsh v Home Secretary (supra) was concerned with an objection to extradition to the United States of America, on the ground that the US courts would permit the extradition offence to be proved by evidence relating to offences upon which extradition had been expressly refused. Ouseley J (giving the principal judgment) remarked (at [89]) that he had seen no authority from this jurisdiction which suggested that the specialty rule was breached in these circumstances. He continued, succinctly, in these terms:

"The specialty rule does not limit ….the evidence which can be admitted to prove the extradition offence and the rules which govern the admissibility of evidence are those of the trial state. I see nothing in this point."

41. The Scottish decision of Beggs v HM Advocate [2010] HCJAC 27, after a consideration of various authorities, including Aubrey-Fletcher, Seddon and Welsh, contains the following very helpful passage in the judgment of the Court:

"184. …..we have come to the conclusion that the specialty principle prevents a State to which a person has been surrendered from prosecuting that person for an offence different in its essential nature from the charge, or any of the charges, upon which he or she was extradited. The rule does not however have any effect, or operate any restriction, upon the evidence which may be deployed by the prosecutor in proof of the commission of the criminal conduct in respect of which the person was surrendered; and that is so even if the evidence so deployed discloses or suggests the commission of a criminal offence for which extradition was not granted by the sending state.

185. We would add that these conclusions are, in our view, entirely consistent with the origins and rationale of the specialty rule. The rule is primarily one of international law. It is concerned with respecting the power of the extraditing State to refuse extradition and ensuring that in so far as that State has a discretion to refuse extradition, that discretion is not abused by the receiving State. Its principal purpose is thus to preserve comity between States, rather than effect a protection for the accused. Given that such is the primary purpose, it is in our view comprehensible that the rule should not be concerned with the nature of the evidence and procedure followed in prosecuting the extradition offence…. "

42. Further citation from authority is unnecessary but there are helpful statements as to claiming specialty protection in this jurisdiction, in Nicholls, Montgomery and Knowles, The Law of Extradition and Mutual Assistance (12^th ed.), to which it is convenient to refer:

"12.82 Whilst the prosecution is prevented from trying a defendant for offences other than those which comply with the rule, there is no bar to their obtaining and adducing additional evidence to support charges which do so comply…..

12.84 Restrictions imposed by foreign courts on the offences for which the defendant can be tried in the UK do not override the terms of domestic legislation…."

43. Pulling the threads together, we are satisfied that the following propositions are well-founded in principle, apparent from the statutory language of the 2003 Act and clearly established by authority:

i) The specialty rule is concerned with offences, not evidence. Thus, the rule operates to prevent the requesting state from dealing with the defendant for an offence different in its essential nature from the charge/s upon which he was extradited. Provided the offences tried comply with the rule, the prosecution is not limited by the specialty rule with regard to the evidence (or additional evidence) it is entitled to adduce to establish the defendant's guilt.

ii) This conclusion as to the focus of the specialty rule is consistent with its origins and rationale in international law, respecting the power of the requested state to refuse extradition and ensuring that that power is not circumvented.

iii) Questions of evidence and procedure are for the courts of the requesting state, as are fair trial protections. All such matters fall outside the specialty rule and are for the courts of the requesting state, not the courts of the requested state.

44. (2) Conclusions on the Applicant's application: In the light of the conclusions to which we have come on the principle of specialty, the statutory language and the relevant authorities, we have no hesitation in concluding that the application is doomed to fail. The essential fallacy lies in the misplaced focus on evidence, whereas the specialty rule is concerned with the offence/s in question. The authorities are not distinguishable merely because the offence with which the Applicant is charged involves a course of conduct. There is no arguable case that the SFO's reliance on evidence pre-dating May 2007 to assist in establishing the Applicant's guilt on a charge of participating in a conspiracy post-dating May 2007 infringes the specialty rule. A telling example is the inhibition, if the Applicant's case was well-founded, on the SFO's ability to narrate the history of events, including the linkage between the promise of bribes and their later payment in accordance with an agreed timetable. That would be a striking constraint and a novel rule, to which we would not accede unless driven to do so. It would be still more startling in the present case, given that there is no such exclusionary rule in Swedish Law. We are wholly unpersuaded that the SFO's approach to the evidence is inconsistent with the manner in which the matter was presented to, or dealt with by, the Swedish authorities and the Swedish Court. This Court takes the United Kingdom's international obligations very seriously - but there is no arguable case that the SFO's stance on this issue fails to honour those obligations. To repeat, offences form the subject-matter of the specialty rule and go to the international obligations between states; the focus on offences furnishes the specialty protection to which the Applicant is entitled. He has enjoyed the benefit of that protection here. Matters of evidence fall outside the specialty rule. Indeed, they are for the courts in the requesting state, not the courts in the requested state. For completeness and the avoidance of any doubt, whether particular items of evidence are admissible or not, will be a matter for the trial Judge as will be all questions going to the fairness of the trial. The Judge's Ruling on this issue was plainly correct and the Applicant's application for leave to appeal must be refused.
45. (3) Conclusions of the SFO's cross-appeal: As will be recollected, the Judge required the SFO to confine the Particulars of the Count with which the Applicant is charged to the period for which he could be tried in Sweden. In our judgment, the Judge was plainly right to do so for the reasons he gave (summarised above) and there is no arguable case to the contrary.
46. The Particulars go to the offence for which the Applicant has been extradited, not the evidence the SFO seeks to adduce to prove it. As a matter of specialty protection, it seems self-evident that those Particulars should not fall outside the Swedish limitation period. Confining the Particulars in this fashion ensures that the jury's focus will be on the conduct for which the Applicant could properly be convicted without offending the specialty rule; put another way, it would eliminate the risk of the jury inadvertently convicting the Applicant for conduct outside of the Swedish limitation period. As it seems to us, it may be inconvenient but is otherwise neither here nor there that the upshot in a joint trial would be different Particulars in respect of the Applicant and NR. Nor are we at all persuaded that the Applicant's specialty protection would be adequately respected – if the Particulars remained as originally drafted – by a clear Judicial direction and a restriction on sentencing to acts falling within the limitation period.
47. Accordingly, the SFO's application for leave to cross appeal is dismissed.