England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		25 May 2005

Lord Justice Sedley :

This is the judgment of the court.

The issues

1. Both appellants have been ordered by the Home Secretary to be extradited to the United States to stand trial for drug trafficking offences. The request was received by the United Kingdom government after 31 December 2003, with the consequence that the extradition proceedings have been governed by Part 2 of the Extradition Act 2003, the United States being within the "upper tier" of the Part 2 jurisdiction by virtue of paragraph 3 of the Extradition Act 2003 (Designation of Part 2 Territories) Order (2003 No.3334).
2. Both men exercise their right to appeal to this court under s.103 of the 2003 Act against the decision made by Senior District Judge Workman under s. 87(3) to send the case to the Home Secretary. Their grounds are:

a) that the district judge failed to deal, or to deal adequately, with disclosure;

b) that he consequently ruled on entrapment without the necessary materials;

c) that he wrongly treated entrapment as a matter solely for the trial court;

d) that he wrongly rejected each appellant's application to stay or dismiss the proceedings against him on the ground that he had been entrapped; and

e) that the existence of parallel and different extradition schemes renders the law uncertain, and so violates s.87 in each case.

3. Mr Simon Baker, for Benbow, adds as a further and general ground that the district judge's reasons are inadequate; but this on analysis is a repetition of his substantive grounds and does not therefore need to be separately dealt with.
4. All of these submissions have to be considered within the framework of the new regime introduced by the 2003 Act. Part 1 governs extradition to designated Category 1 territories. In essence, it gives effect to the new European arrest warrant procedures. Part 2 governs extradition to Category 2 territories, of which the US has been designated one. By virtue of s.70(3) and (4)(a):

"70 (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, or

(b) …

5. Thus no particulars of the alleged offence or its circumstances are required: the request is valid if it contains (in a case like the present) a statement that the individual concerned is accused in the United States of the commission of a specified offence. Thereafter the tasks of the court are sequentially set out: by s.78 it must check that the right person is before the court, that the offence is an extradition offence and that the documentation is in order; by s.79 it must consider certain specified bars to extradition. But the designation of the US as an "upper tier" state in category 2 relieves the court of the requirement under s.84, to decide whether there is sufficient material to create a case to answer. Finally, s.87 requires the court, before sending the case to the Home Secretary, to consider whether the person's extradition would be compatible with his Convention rights, and to discharge him if it would not be.

Parallel schemes

6. It is convenient to deal at this point with the submission that there are two parallel schemes the existence of which infringes the principle of legal certainty. The answer is that there are not.
7. Mr Baker submits that the United States of America (Extradition) Order (1976 no. 2144) survives and conflicts with the 2003 Order in Council (no. 3334, ante). The former, which has not been revoked, gives effect to the Treaty of 1972 between the United Kingdom and the United States. The latter gives effect to Part 2 of the 2003 Act.
8. Mr Hugo Keith for the United States government submits, in my view correctly, that any overlap has been eliminated by the Extradition Act 2003 (Commencement and Savings) Order 2003, which, as now amended by the Extradition Act 2003 (Commencement and Savings) (Amendment no. 2) Order 2003, provides:

3. The coming into force of the [2003] Act shall not apply for the purposes of any request for extradition … which is received by the relevant authority in the United Kingdom on or before 31^st December 2003.

4. The coming into force of the [2003] Act shall not apply for the purposes of an extradition [the word 'request' appears to have been omitted] made from or to the United Kingdom on or before 31^st December 2003.

The sting

9. It is necessary first to set out the essential factual case of the US government against these two appellants. It arises from what was essentially a sting operation conduct by the Drug Enforcement Administration in December 2003. The DEA's case is that an agent – CS1 – met Benbow in a hotel in Tampa, Florida, where Benbow offered to arrange the supply of 9 kilograms of Russian-sourced radioactive metal for $220m. CS1 offered to pay in part with hard drugs and undertook to pay Benbow for brokering the deal. Benbow said that he would present the proposal to the seller when he returned to Estonia.
10. Later that month Benbow told CS1 that the Russian supplier wanted cash but that he had been in contact with a British crime syndicate willing to buy several thousand kilograms of cocaine from CS1, which would raise the cash to buy the radioactive metal. An arrangement was made for a meeting in February 2004, where Benbow introduced two other men, Jones and Davidson, as potential purchasers of cocaine. Prices and locations were negotiated, CS1 masquerading as the carrier and another agent, CS2, as a representative of the owner of the drugs, of which a sample was produced by the agents and handed over. Jones agreed that Benbow would be paid to act as broker.
11. At a further meeting in March 2004 in Belgium, at which CS2 was present, the arrangement with Jones and Davidson was fleshed out. Thereafter Benbow introduced Jenkins to CS2 as the representative of another English crime syndicate with more purchasing power than the first. Some preliminary negotiations took place, in the course of which CS2 insisted on a $6m partial payment. A further meeting in Tampa was arranged for the end of the month. This took place between Benbow, Jenkins, CS2 and two undercover detectives. Jenkins and Benbow explained that the $6m was available in Europe and that a money swap was being arranged. Jenkins said he had a warehouse in Rotterdam which would receive the cocaine, for which he would pay CS2 in million-euro instalments. CS2 told Jenkins that Jones had $1.9m in Belgium by way of payment but no means of releasing it in Florida. The two undercover detectives then handed Jenkins a considerable quantity of cocaine for inspection. One of them later that day drove Jenkins to a boat where he met Jones in the presence of CS2. The two men, with Benbow, discussed payment by Jones to Jenkins in England and by Jenkins to CS2 in Florida, in return for which CS2 would supply the cocaine to Jenkins in Europe.
12. Later Benbow, Jenkins and CS2 in a series of phone calls amplified these arrangements. Provision was made for the money to be placed in a safety deposit box to which CS2 and a British undercover officer had access, and for cocaine to be released in return to the men who were eventually accused – Jenkins, Jones, Tucker, Benbow and Davidson – to a total of 1000 kilograms. Benbow confirmed the arrangement by e-mail to Jenkins and to CS2.
13. At the end of April 2004 Jenkins, Benbow and two of the other three met CS2 and a British undercover officer in London. They agreed on payment the following day (to US and British agents) of $4m in return for 250 kilograms of cocaine. When they met up the following day, 30 April, the four men were arrested on provisional warrants obtained three days earlier by the US government at Bow St Magistrates' Court. Tucker has so far evaded arrest.

Entrapment

14. The main arguments of principle are predicated on the proposition that this is actually or potentially a case of entrapment. As advanced by the appellants it has two aspects: first, a contention that this was ex facie a case of entrapment; secondly, that if it was not, the district judge had power, which he should have exercised, to call for disclosure of facts and documents which might reveal or confirm it.
15. Entrapment is recognised as a substantive defence in US federal law. What it involves is interpreted in the courts of the 11^th circuit, which includes Florida, by means of a model jury instruction, #13.1, in this way:

"The Defendant asserts "entrapment" concerning the offense charged in the indictment. A Defendant is "entrapped" when law enforcement officers [or cooperating individuals under their direction] induce or persuade a Defendant to commit a crime that the Defendant had no previous intent to commit; and the law as a matter of policy forbids a conviction in such a case.

However, there is no entrapment where a Defendant is ready and willing to break the law and the Government merely provides what appears to be a favorable opportunity for the Defendant to commit the crime. For example, it is not entrapment for a Government agent to pretend to be someone else and to offer, either directly or through an informer or other decoy, to engage in an unlawful transaction with the Defendant. So, a Defendant would not be a victim of entrapment if you should find, beyond a reasonable doubt, that the Defendant, before contact with Government officers [or cooperating individuals], was ready, willing and able to commit the crime charged in the indictment whenever opportunity was afforded and that the Government did no more than offer an opportunity.

On the other hand, if the evidence in the case leaves you with a reasonable doubt whether the Defendant had any intent to commit the crime except for inducement or persuasion on the part of some Government officer [or cooperating individual]' then it is your duty to find the Defendant not guilty."

16. In the law of England and Wales, by contrast, entrapment is not a defence and therefore not an issue for the jury. It is a matter for the judge and, if established, is a ground for staying or dismissing proceedings as an abuse of the court's process. Its meaning, for this reason, is not the subject of any model jury direction. It has been examined in detail by the House of Lords in R v Looseley [2001] UKHL 53. It is not necessary for the purposes of this judgment to set out the extended reasoning of Lord Nicholls (§13-29) and Lord Hoffmann (§47-71). It is sufficient, with one exception, to reproduce the headnote at [2002] 1 Cr App R 360:

"Police conduct which brought about State-created crime was unacceptable and improper and the role of the courts was to stand between the State and its citizens to make sure this did not happen. But, if a person freely took advantage of an opportunity to break the law, given to him by a police officer, the police officer was not to be regarded as inciting or instigating the crime in the context of the prohibition of entrapment.

In considering whether the conduct of the police or other law enforcement agency was so seriously improper as to bring the administration of justice into disrepute the court had to have regard to all the circumstances of the case and in exercising its inherent jurisdiction to stay the proceedings as an abuse of process had particularly to consider: (1) the nature of the offence – the use of pro-active techniques was more needed and, hence, more appropriate in some circumstances than in others and the secrecy and difficulty of detection, and the manner in which the particular criminal activity was carried on, were relevant considerations; (2) the reason for the particular police operation – having reasonable grounds for suspicion was one way good faith might established but having grounds for suspicion of a particular individual was not always essential; (3) the nature and extent of police participation in the crime – the greater the inducement held out by police, and the more forceful or persistent the police overtures, the more readily might a court conclude that the police had overstepped the boundary; (4) the defendant's criminal record – this was unlikely to be relevant unless it could be linked to other factors grounding reasonable suspicion that the defendant was currently engaged in criminal activity.

In a case involving the commission of an offence by an accused at the instigation of undercover police officers there was no appreciable difference between the requirements of Article 6 of the European Convention on Human Rights, or the Strasbourg jurisprudence on Article 6, and English law as it had developed in recent years."

….

17. The corresponding jurisprudence of the European Court of Human Rights is found at its strongest from a defendant's point of view in the case of Teixeira de Castro v Portugal (1998) 28 EHRR 101. There the applicant, a man of good character, was approached by two undercover officers at the suggestion of a petty drug dealer and asked by them to supply 20g of heroin for which they tendered cash. He went and obtained it and was arrested when he returned with it. The Court found that he had been denied a fair trial in violation of art. 6 of the Convention because he had been incited by agents of the state to commit the offence of which he was convicted. The court articulated the following principle:

"36. The use of undercover agents must be restricted and safeguards put in place even in cases concerning the fight against drug-trafficking. While the rise in organised crime undoubtedly requires that appropriate measures be taken, the right to a fair administration of justice nevertheless holds such a prominent place that it cannot be sacrificed for the sake of expedience. The general requirements of fairness embodied in Article 6 apply to proceedings concerning all types of criminal offence, from the most straightforward to the most complex. The public interest cannot justify the use of evidence obtained as a result of police incitement."

18. The Court drew a distinction between an agent provocateur and an undercover agent, recognising the legitimacy of the latter. Since the applicant had attracted no suspicion, had no record and had no drugs in his possession or control when approached, there was nothing to suggest any predisposition to offend. His offending was therefore the product entirely of incitement. At §38 the court concluded: "…. The two police officers did not confine themselves to investigating Mr Teixeira de Castro's criminal activity in an essentially passive manner, but exercised an influence such as to incite the commission of the offence." We do not read this, however, as meaning that only passive investigation is legitimate: between that and active incitement many degrees of passivity and activity are possible.
19. Particularly relevant to the present case is the extent of activity - even proactivity - which is acceptable in cases which present themselves to the police as involving serious criminality. In this regard, as Lord Nicholls put it in R v Looseley, §28:

"28. The nature and extent of police participation in the crime. The greater the inducement held out by the police, and the more forceful or persistent the police overtures, the more readily may a court conclude that the police had overstepped the boundary: their conduct might well have brought about commission of a crime by a person who would normally avoid crime of that kind. In assessing the weight to be attached to the police inducement, regard is to be had to the defendant's circumstances, including his vulnerability. This is not because the standards of acceptable behaviour are variable. Rather, this is a recognition that what may be a significant inducement to one person may not be so for another. For the police to behave as would an ordinary customer of trade, whether lawful or unlawful, being carried on by the defendant will not normally be regarded as objectionable."

20. Benbow, it will be recalled, did not mention drugs when he first met CS1. He was offering radioactive metal, and it was CS1 who proposed payment in drugs. To this Benbow readily and positively responded; but the fact remains that it was at CS1's suggestion that drugs entered the picture. In our judgment this does not establish entrapment in our domestic law, embracing as it now does the law of the Convention. If Benbow had been offering to sell, say, a stolen television set it might have done, because there might have been no appreciable connection between the two offers: the offer of drugs might in other words have been regarded as an inducement to commit a crime outside the offender's league. But Benbow, albeit not facing any charge in this regard, was clandestinely offering dangerous material at a price redolent of corruption. He was thus already, on the account before the court, engaged of his own volition in a covert international trade in which payment might as readily be made in drugs as in cash. For the authorities to respond with an offer to pay in drugs was not, in our judgment, to initiate drug dealing by someone who there was otherwise no reason to suppose would get involved in it. It was to enter into the class of transaction which Benbow was putting on offer.
21. Benbow, having accepted the offer to pay with drugs, introduced Jenkins, who was on the evidence a willing participant, as a go-between. Jenkins has in these circumstances not even the beginnings of a case of entrapment. His counsel, Mr Jonathan Ashley-Norman, has rightly not sought to erect a derivative case on the back of Benbow's; but he is left, in consequence, with the submission that Jenkins had nothing to do with the source of the alleged conspiracy, the radioactive metal. This is true, but if anything it isolates Jenkins from any facts capable of founding an entrapment submission.
22. The district judge, it is true, having accepted in principle that entrapment might trigger the court's jurisdiction to stay the proceedings for abuse, said only this about the factual suggestion of entrapment:

"17. Under the new procedures with the United States of America, this court is no longer provided with evidence to support a finding of a prime facie case. I therefore have to make the decision on entrapment upon very limited information produced by the Government. The defendants have not given any evidence. Applying the test in Looseley 2001 (4 AllER897), I have been unable to find any acts by agents of the United States of America which would render the Prosecution unfair. In the absence of such a finding it is unnecessary for me to consider in detail the arguments under Article 5 and under abuse of process. If, however, I am wrong on the evidence of entrapment I would have found that this was an issue that is essentially a matter for the trial court, which can be raised under United States law as a substantive defence. In those circumstances neither Article 5, nor the abuse of process jurisdiction of this court, are engaged."

23. Although, as we accept, the district judge could have been expected to consider in somewhat more detail whether the case advanced by the US government, albeit not in the form of direct testimony, showed entrapment to have occurred, his conclusion that it did not was in my judgment correct for the reasons we have now given. Pausing here, it is necessary to say that this is in no way dispositive of any argument which may be put to the jury in Florida. It is a judgment on the issue of entrapment in our domestic law for the purposes of this appeal. Whether the facts before the jury are the same as or different from those presented to us, it will be for them to decide in the light of the trial judge's direction whether they consider entrapment to have occurred.

Disclosure

24. The second aspect of this argument is that, assuming entrapment not to be made out on the face of the US government's case, the district judge had the power and consequently the obligation to require or at least invite the US government to disclose facts and documents going to the question of entrapment. Specific disclosure is sought in this regard of covert video and audio recordings which a Metropolitan Police report has indicated are in the possession of the DEA. From the district judge's failure to do this it followed, in each appellant's original submission, that there was no fair or proper hearing of the extradition request, so that they were and are entitled to be discharged.
25. But as both counsel now accept, there is no such power and no such obligation in the court hearing an application for extradition. What the district judge may do in a proper case, as Mr Keith accepts, is ask the Home Secretary to exercise his power under art. IX of the Treaty of 1872, which by paragraph (2) provides:

If the requested Party requires additional evidence or information to enable a decision to be taken on the request for extradition, such evidence or information shall be submitted within such time as that Party shall require.

26. The use of this power may well be appropriate where, for example, reference is made in a statement to a document without which the statement is not intelligible. It may also be appropriate to use it, as Mr Keith accepts, where there is before the court of the requested state sufficient evidence of an abuse of its process to call for more information before a decision is arrived at. But the present cases, as he submits and as we agree, come nowhere near this class.
27. The appellants rely on what Kennedy LJ said in Serbeh v Governor of HMP Brixton [2002] EWHC 2356 Admin, §40:

"40. In my judgment, as was made clear by Ognall J in Lee and by the European Commission in Kirkwood, extradition proceedings are not to be equated with criminal proceedings before domestic courts. In extradition proceedings it is still for the requesting state to decide what material it chooses to place before the court in support of its application. There is still a fundamental assumption that the requesting state is acting in good faith. If there is reason in the particular case to call that assumption into question, then the reason can be examined, and if appropriate acted upon, but there was and is no such reason in this case, and accordingly, in my judgment the complaints of non disclosure and abuse of process are misconceived."

28. For reasons which are readily apparent, this is not such a case. If it were, it would remain to be decided how and when art. IX became legally, as opposed to diplomatically, engaged. The present ground of appeal related to disclosure is, in reality, designed less to procure material necessary for resisting extradition than to generate a ground for quashing the district judge's decision. In both purposes, in our view, it fails.
29. For the rest, the nature of the process under part 2 of the 2003 Act precludes any general remit of the kind which is contended for. It is for the requesting state to decide what material to advance in support of its application. There is a general duty on a requesting state to be candid about vitiating factors in its case (Wellington v Governor of HMP Belmarsh [2004] EWHC Admin 418), but it is not a duty enforceable by inspection or interrogation. If the defence is able independently to establish a case of breach of the accused's Convention rights, the court must of course entertain it in order to fulfil its remit under s.87: see Re Serbeh (ante). But none of these instances arise here.
30. We are therefore unable to accept that the district judge has failed in respect of any legal obligation resting on him to inquire further than he has done into the material placed before him or into its background.

Entrapment generally

31. In this situation we are not called upon to decide whether entrapment, if established, is justiciable in extradition proceedings. Mr Keith submits that it is not, but the jurisprudence of the ECtHR (with or without s.87) and the decisions of this court do not make the submission by any means a straightforward one. In the event we have not found it necessary to hear out the issues broached under this head in Mr Keith's and Miss Dobbin's skeleton argument. Mr Keith has accepted that the decision of this court in R (Kashamu) v Governor of HMP Brixton [2002] QB 887 has resurrected, in the wake of the Human Rights Act 1998, the abuse jurisdiction previously excluded by the decision of the House of Lords in Re Schmidt [1995] 1 AC 339; but he submits that the inherent power is limited to such things as refusal of a request made in bad faith. We have not found it necessary to hear the appellants' arguments to the contrary: our decision assumes that Mr Keith may be wrong in this regard, but no more.
32. Nor, therefore, are we called upon to decide whether, as the district judge held in the alternative, entrapment is in principle a matter solely for the court of trial. We observe only that this would not be a very attractive proposition if the requesting state did not recognise entrapment as either a plea in bar or as a substantive defence. If it is available in our courts as a bar to extradition, however, it can only be in a case where it is made out on the facts known to the court, and this is not such a case.

Conclusion

33. These are the reasons for which, at the conclusion of argument and after deliberation, we announced that these two appeals were to be dismissed.