England and Wales High Court (Administrative Court) Decisions

"1. That [the applicant] on or about 25 July 1994 conspired with Christopher Omotunde and others to be concerned in an arrangement whereby the retention or control of US$30,000 on behalf of Sunday Awoyemi being the proceeds of drug trafficking, was facilitated by concealment, removal from the United States of America, transfer to nominees or otherwise.
2. That [the applicant] between 1 January 1993 and 1 January 1995 conspired with Christopher Omotunde and others to acquire or possess the proceeds of drug trafficking.
3. That [the applicant] between 1 January 1988 and 1 July 1994 conspired with Bobby Bashorun and others to acquire or possess the proceeds of drug trafficking.
4. That [the applicant] on a date unknown handled stolen goods, namely the proceeds of US$10,000 from Christopher Omotunde, knowing or believing the same to represent the proceeds of credit card fraud."

Chronology
4. On 18 March 1997, the applicant was arrested on a provisional warrant for the Florida offence. In May 1997, the Divisional Court dismissed applications for habeas corpus arising out of the provisional arrest. In May and June 1997, the Secretary of State issued Orders to Proceed in respect of the Florida and Maryland offences. On 11 June 1997, the applicant was committed by the Bow Street Magistrates Court on one out of three of the Florida charges (namely the conspiracy to cause unauthorised modification of computer material) but it was held that the remaining two charges were not extradition offences.
5. On 1 August 1997, the Bow Street Magistrate committed the applicant in respect of the four Maryland offences. On 18 August 1997, the applicant commenced habeas corpus proceedings in respect of the Maryland charges and at the same time the Government of the United States of America ("the USA") sought Judicial Review of the decision made on 11 June 1997 not to commit the applicant in respect of two of the Florida charges.
6. On 13 May 1998, the Divisional Court dismissed both the habeas corpus application and the application of the USA in respect of the two Florida charges, which the Magistrate had held not to be extradition offences (see [1999] QB 847). Subsequently on 15 July 1998, the House of Lords allowed the appeal of the USA and held, contrary to the view of the lower courts, that those two Florida charges were extradition offences; they remitted the matter to Bow Street Magistrates Court for reconsideration.
7. Pursuant to an invitation to make representations against his return to the USA, the applicant's Solicitors sent three sets of representations to the Secretary of State on 6 August 1999, 29 November 1999 and 26 April 2000 and this led to the decision, which is the subject of the present application.
The Issues
8. Miss Montgomery Q.C. on behalf of the applicant makes two points. First, she contends that the Secretary of State in making the decision ignored a material fact set out in the representations, which was that the applicant had a defence to the charge of conspiring to launder drug money ("the laundering drug money issue"). Second, she complains that the Secretary of State acted irrationally and unreasonably in refusing to obtain assurances from the USA on the issue of specialty ("the specialty issue"). We were reminded that in considering these issues, we had to bear in mind the comments of Sir Thomas Bingham M.R. in R. .v. Ministry of Defence, Ex parte Smith [1996] Q.B.517 at 534E-F in which he agreed with counsel's formulation of the approach that should be adopted by the courts to the issue of irrationality:

"The court may not interfere with the exercise of an administrative discretion on substantive grounds save where the court is satisfied that the decision is unreasonable in the sense that it is beyond the range of responses open to a reasonable decision-maker. But in judging whether the decision-maker has exceeded this margin of appreciation the human rights context is important. The more the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable in the sense outlined above"

The Laundering Drug Money Defence Issue
9. Miss Montgomery says that no Secretary of State could rationally surrender a person for trial in a foreign country for conduct that would not be punishable in the United Kingdom. Thus, she says, it is necessary to see if there would be a defence to charges 2 and 3. By virtue of Section 1(1) of the Criminal Law Act 1997, an agreement cannot give rise to a statutory conspiracy punishable in England and Wales unless the agreement, if carried out in accordance with the parties' intentions, will necessary amount to or involve the commission of any offence or offences by one or more of the parties to the agreement.
10. Her argument is that an agreement which, if carried out in accordance with the intention of the parties, would not involve the commission of the offence if the agreed conduct gives rise to a statutory defence is incapable of being a crime. The claimant was charged in charges 2 and 3 with conspiracies in connection with the acquisition, possession or use of proceeds of drug trafficking, which would under English law be contrary to Section 23A of the Drug Offences Act 1986, as amended. Miss Montgomery stresses that, by virtue of Section 23A(2) as amended, it is a defence to the charge that the person charged acquired or used the property or had possession of it for adequate consideration. She submits the prosecution evidence shows that the applicant had only agreed to take possession of the proceeds of drug trafficking for the purpose of providing foreign exchange facilities to the traffickers, for which a proper rate of exchange had been paid. Thus it is contended by Miss Montgomery that even at its highest, the prosecution evidence shows that the claimant had only agreed to acquire or use the relevant property or had possession of it for consideration in connection with foreign exchange facilities and this does not constitute an offence under English law.
11. She criticises the response of the Secretary of State which was that:

"The Divisional Court was satisfied that the offences in charges 2 and 3 were extradition crimes, and that ("although there were obvious evidential difficulties") the Magistrate was entitled to find a prima facie case established in relation to each of them and it is not open to the Secretary of State to come to a different conclusion from that of the courts. That is not a reason not to order surrender."

12. The Secretary of State and the Government of the USA disagree with the applicant's contentions that the reasons were defective as the Secretary of State had failed to consider the statutory defence. They submit that the Secretary of State was entitled to have regard to the fact that a prima facie case has previously been found to exist so that his task did not include reviewing the facts and legal issues determined by the Magistrates Court and the Divisional Court. This raises the issue of the nature and extent of the Secretary of State's obligation to scrutinise and investigate possible defences open to a person whose extradition is being sought.
13. The challenge made by the applicant in this case relates to the final stage of the extradition process at which the Secretary of State considers whether an order to return shall be made and his powers are set out in paragraph 2 of Schedule 8 of Extradition Act 1989, which provides that:

"8(1) If the metropolitan magistrate commits a fugitive criminal to prison, he shall inform such criminal that he will not be surrendered until after the expiration of fifteen days, and that he has a right to apply for a writ of habeas corpus.
(2) Upon the expiration of the said fifteen days, or, if a writ of habeas corpus is issued, after the decision of the court upon the return to the writ, as the case may be, or after such further period as may be allowed in either case by the Secretary of State, the Secretary of State may by warrant order the fugitive criminal (if not delivered on the decision of the court) to be surrendered to such person as may in his opinion be duly authorised to receive the fugitive criminal by the foreign state from which the requisition for the surrender proceeded, and such fugitive criminal shall be surrendered accordingly."

14. Significantly, the role of Secretary of State is very different from that of the Magistrate, whose duty is to ascertain if a prima facie case of commission by the fugitive of a non-political and extraditable offence is established before him. In R v Secretary of State for the Home Department ex p. Susan Hagan and Sally Anne Croft (Unreported 15 December 1993), the Divisional Court had to consider a submission that the Secretary of State was required at this stage to consider "afresh in all cases the very evidence upon which the Magistrate had found the prima facie case" (Pages 11-12E).
15. Russell LJ (with whom Blofeld J agreed) explained that:

"[The Secretary of State] is not a rubber stamp for the Magistrate. He should take into account matters such as delay and compassionate considerations and any additional evidence that emerges after the Magistrate has considered the case...But, and Miss Montgomery [Counsel for the Respondent in that case] emphasises this, there is no obligation on the part of the Home Secretary to reconsider the facts presented to the Magistrate and it is no part of his function to review the decision of the Magistrate, or for that matter in this case the Divisional Court. On the contrary, the Secretary of State is entitled to have regard to the fact that the Magistrate and the Divisional Court have found a prima facie case to exist. They are relevant factors in his decision making process. If, on the other had, the existence of a prima facie case is outweighed by other considerations the Secretary of State may refuse his warrant, but in doing so he is in no sense reviewing the Magistrate's decision. He is taking his own decision bearing in mind the findings of the Magistrate...
... I add that perhaps only in an extreme case the Home Secretary will look at the quality of the evidence but I am satisfied that whether he does so remains a matter for his discretion as opposed to an obligation."

16. Blofeld J said that he accepted that the Secretary of State, "in his discretion should decide in each case what he should consider in the light of representations made by the applicant and where appropriate the fresh evidence admitted on that applicant's behalf. I do not accept that it is as a matter of law or requirement upon him to consider the evidence afresh in every case."
17. Thus, the Secretary of State has a wide and unstructured discretion to take into account such matters as he regards as suitable in deciding how to react to representations on defences to charges in respect of which the Magistrate has found a prima facie case. The width of this discretion means that the Secretary of State is entitled to consider the representations of an applicant on the basis that the Magistrate has satisfied himself that, as a matter of law, there is a prima facie case made out against the person, whose case he is considering. In this case, the Secretary of State decided that his starting point should be the decision of the Divisional Court that the offences in charges 2 and 3 were extradition offences on which the Magistrate had been entitled to find a prima facie case established in respect of each of them. He regarded that decision as being something, which enabled him to conclude that the representation, made by the applicant was "Not a reason not to order to surrender". In the light of his broad discretion, we do not think that he can be criticised for this as he obviously appreciated and was entitled to appreciate that the decision of the Divisional Court had been made after thorough legal argument, including a submission as to the effect of s23A of the 1986 Act (see 851G - 852A).
18. By the same token, he was quite entitled to take the view that it was not open to him to come to a different conclusion from that of the Divisional Court because, as, Russell LJ said"it is no part of his function to review... the decision of the Divisional Court". In other words, it was reasonable for him to proceed, in the exercise of his discretion, on the findings in the Divisional Court that the matters complained of were extradition grounds. (See [1999] Q.B. 847 at 859-861 per Kennedy LJ). The thrust of the judgment of the Divisional Court was that the applicant's submissions had been rejected. So far as it is suggested that the Divisional Court failed to deal with relevant questions in their judgment, the proper course for the applicant to have adopted would have been to have sought clarification from that Court or permission to appeal to the House of Lords. Neither of those steps was pursued here and the Secretary of State was entitled to consider that the Divisional Court had determined all matters relating to the existence of a prima facie case in respect of the extraditable offences.
Specialty Argument
19. The applicant contends that the refusal of the Secretary of State to consider seeking reassurance on the issue of specialty was irrational, especially, as in the words of his skeleton, "the circumstances of the case cried out for some assurance to be given".
20. In support of this argument, the applicant points out that the Maryland indictment expressly charges the applicant with offences in connection with bank and credit card fraud for which his extradition had been refused, save in respect of one substantive offence concerning the handling of US$10,000 for Christopher Omotunde. It is also said that the terms in which the Maryland indictment is drawn contradict the basis on which the extradition request had been granted.
21. The applicant draws our attention to what are said to be recent and flagrant breaches of the specialty provisions by the United States in two cases concerning Levin and Laycock, who were each individuals extradited to the United States of America. These points were put in the representation to the Secretary of State who said in his decision that:

"It is considered that provision of a written assurance would be inappropriate, given that specialty protection is already enshrined in article XII of the UK/US Extradition Treaty. This itself provides all the reassurance needed to ensure that the internationally recognised rule of specialty will be respected in this case. The US authorities say that if, in the event of a trial in Maryland, the defendant consider that his rights have been violated in this respect, then it would be for him to make that known to the UK authorities, for resolution in the United States. The apparent differences in court opinions which are mentioned in the representations relate to whether it would be for the defendant in the case to bring a complaint to the UK authorities, not whether the rule of specialty should be protected. In any event it would be a matter for the defendant in the first instance to bring to the attention of the UK authorities"

22. In support of this decision and in answer to the applicant, the Secretary of State relies on four factors. First, Article XII of the United States of America (Extradition) Order 1976 provides that a person extradited shall not be detained or proceeded against in the territory of the requesting party, "for any offence other than a extraditable offence established by the facts in respect of which his extradition has been granted or on account of any other matters". This provision complies with the statutory obligations imposed on the Secretary of State contained in paragraph 1(3) of Schedule 1 of the Extradition Act which states that a fugitive criminal shall not be surrendered to a foreign state "unless provision is made by the law of that State or by arrangement that the fugitive criminal shall not unless he has been restored or had an opportunity of returning to Her Majesty's dominions be detained or tried in that foreign State for any offence committed prior to his surrender other than the extradition crime proved by the facts on which the surrender is grounded". Thus the USA has a treaty obligation to comply with the rule of specialty.
23. Second, it is clear that although the applicant has made assertions of breaches of the specialty rule by the US authorities in the cases of Levin and Laycock, neither of those individuals has alleged breaches of the specialty rule and both of them pleaded guilty to the charges. So there is no evidence to suggest the USA has acted in the past in breach of the specialty rule.
24. Third, by the same token, there is no reason to suppose they would not in the future honour its diplomatic obligations contained in the speciality rule.
25. Fourth, in the event of breaches of the specialty rule by the US authorities, the applicants would then have recourse to the courts of the USA or to the authorities in the United Kingdom. There is no reason to believe that this would be an inadequate remedy.
26. Each of these four factors would have justified the Secretary of State in reaching the decision he did and it must follow that the Wednesbury challenge and the specialty argument also fail. Thus, the application must be dismissed.