England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		11th May 2006

Mr Justice Tugendhat :

1. The Appellant, Brian Stepp, is a citizen of the United States of America aged 32. He faces in Ohio allegations of rape, kidnapping, sexual battery and impersonating a peace officer, all alleged to have occurred in Ohio. It is alleged that on three separate occasions he pretended to be a peace officer and ordered women into his car, restrained them, on two occasions using weapons, drove them to remote places and raped and sexually assaulted them.
2. His extradition has been requested by the government of the United States of America. The USA has been designated a Category 2 Territory pursuant to the Extradition Act 2003 ("the 2003 Act"), s.69. Accordingly, Part 2 of the 2003 Act applies. The relevant statutory provisions have recently been set out in two decisions handed down by this court, in each case constituted by Laws LJ and Ouseley J, on 21^st February 2006, namely Welsh and Thrasher [2006] EWHC 156 (Admin) and Bermingham and others [2006] EWHC 200 (Admin). Each of those two cases related to requests by the government of the United States of America. It is therefore unnecessary to set them all out again in this judgment.
3. The Appellant was due to stand trial before the Court of Common Pleas, Butler County, Ohio, on 12^th July 2004. In breach of his bond he fled the jurisdiction. A warrant (capias) was issued for his arrest. On 10^th September 2004 a provisional warrant of arrest was issued by the Bow Street Magistrates' Court under the 2003 Act, s.73. That warrant was executed and the Appellant arrested in England on 29^th September 2004. He appeared the next day before the Bow Street Magistrates' Court pursuant to s.74 (3) of the 2003 Act.
4. The extradition request was submitted to the Secretary of State for the Home Department ("SSHD") by the USA. It was certified as valid by SSHD on 26^th November 2004, and he sent the request to the court, all in accordance with the 2003 Act. On behalf of the USA it is submitted that the conduct alleged against the Appellant, had it occurred in the United Kingdom would have constituted the offences of rape, kidnap, false imprisonment, indecent assault and having an offensive weapon in a public place.
5. The hearing before the District Judge pursuant to the 2003 Act s.78 commenced on 30^th March 2005. The US Government did not then seek extradition in respect of the conduct the subject of the three charges of Impersonating a Peace Officer pursuant to Ohio Revised Code S2921.51 (D). The US Government did not pursue any application in respect of the conduct alleged for which the UK equivalent was having an offensive weapon in a public place. The Appellant was discharged by the District Judge pursuant to the 2003 Act s.78(6) in respect of those matters. In respect of the other matters of which the Appellant is accused, the District Judge rejected the submissions made on his behalf. The District Judge was required by s.84(7) of the Act to proceed under s.87, which she did. The District Judge was satisfied that his extradition is compatible with the Appellant's Convention rights and sent the case to the SSHD for his decision whether the Appellant is to be extradited.
6. Following representations submitted to the SSHD on behalf of both the Appellant and the US Government, on 17^th October 2005 the SSHD ordered the return of the Appellant to the US pursuant to the extradition request. On 18^th October 2005 the SSHD sent copies of the order to the Appellant's solicitors with a letter in which he set out his reasons for concluding that he was not satisfied that there existed any reason which would militate against the order.
7. On 31^st October 2005 the Appellant gave notice of appeal pursuant both to s.103 and to s.108 of the 2003 Act, that is both against the decision of the District Judge and against the decision of the SSHD. The grounds of appeal were set out in a Skeleton argument, dated 26^th October 2005 which was attached. The provisions of those sections, so far as relevant, are as follows:

"S.103:

"(1) If the judge sends a case to the Secretary of State under this Part for his decision whether a person is to be extradited, the person may appeal to the High Court against the relevant decision.

…

(3) The relevant decision is the decision that resulted in the case being sent to the Secretary of State.

(4) An appeal under this section may be brought on a question of law or fact…."

S.104:

"(1) On an appeal under section 103 the High Court may –

(a) allow the appeal;

(b) direct the judge to decide again a question (or questions) which he decided at the extradition hearing;

(c) dismiss the appeal.

(2) The court may allow the appeal only if the conditions in subsection (3) or the conditions in subsection (4) are satisfied.

(3) The conditions are that –

(a) the judge ought to have decided a question before him at the extradition hearing differently;

(b) if he had decided the question in the way he ought to have done, he would have been required to order the person's discharge.

(4) …

(5) If the court allows the appeal it must –

(a) order the person's discharge;

(b) quash the order for his extradition.

…"

8. As Laws LJ said in Bermingham, para 12, the right of appeal against an extradition order made by the SSHD is given by s.108. S.108(3) is in identical terms to s.103(4). S.109 is an analogue of s.104. S.109(1) is identical to s.104(1) save that there is no equivalent of s.104(1)(b). S.109(3), (4) and (5) are in the same terms as s.104(3), (4) and (5) with appropriate substitutions of the SSHD for the judge, and the extradition order for the duty to discharge. S.110 is analogous to s.105, and confers a right of appeal on the requesting State against an order by the SSHD for the person's discharge.
9. On the appeal against the decision of the District Judge, the case for the Appellant is that the police in Ohio have fabricated all the allegations against him and have forced or induced the three women complainants into giving false testimony against him. As argued before the District Judge, and before this court, the submission on his behalf has been that the request for extradition was therefore made in bad faith and in violation of the European Convention on Human Rights ("the Convention"), articles 5, 8 and/or 18.
10. On the appeal against the decision of the SSHD, the case for the Appellant is that there are no speciality arrangements within the USA, and so the SSHD was prohibited from making the order he did. S.95 provides so far as material:

"(1) The Secretary of State must not order a person's extradition to a category 2 territory if there are no speciality arrangements with the category 2 territory.

…

(3) There are speciality arrangements with a category 2 territory if (and only if) under the law of that territory or arrangements made between it and the United Kingdom a person who is extradited to the territory from the United Kingdom may be dealt with in the territory for an offence committed before his extradition only if –

(a) the offence is one falling within subsection (4), or

(b) he is first given an opportunity to leave the territory.

(4) The offences are –

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

(b) an extradition offence disclosed by the same facts as that offence…;

(c) an extradition offence in respect of which the Secretary of State consents to the person being dealt with;

(d) an offence in respect of which the person waives the right that he would have (but for this paragraph) not to be dealt with for the offence.

THE APPEAL AGAINST THE DECISION OF THE DISTRICT JUDGE

11. The evidence of the Appellant which he submits demonstrates the bad faith of the US Government, and the District Judge's findings, are set out in her judgment as follows:

"The basis of the accused's submissions is that three separate women were induced by the police to fabricate false allegations of rape against the accused. The motive suggested for the police behaviour was because the accused had been a police informant who had withdrawn from being an informant and because the police were concerned to convict the accused who they believed to be guilty of other criminal offences on which he had evaded conviction. It was not in dispute that the accused has a number of previous convictions, or that for a period he had acted as a police informant.

Mr Stepp's evidence was that he had been a minor informant up until 2000. In the period 2000-2003 he had ceased to be an informant and there had been no untoward reaction or harassment from the police. In 2003 Jamie Barnette robbed the accuseds friend Don Snider and confessed to the accused being unaware of his friendship with Snider.

The accused told Snider, and as a favour to him, offered his services to the police to get Barnette to repeat his confession so the police could covertly record it. He was not approached or persuaded by the police to inform on Barnette. In the event the accused changed his mind, misled the police and left them in his house whilst he purported to bring Barnette, in his own words, getting high.

As to opportunity the accused submits that in cases such as these there will never be a "smoking gun" but the court was entitled to look at pieces of the evidential jigsaw. The informant years could be viewed as background context, the three complainants had the opportunity to fabricate the stories together and, being prostitutes with criminal convictions, were liable to succumb to the type of coercion the court can infer occurred here given the motive the police had to punish Mr Stepp. I was invited to infer that the three women were unwilling witnesses given that they were detained as material witnesses.

It was conceded that there was no requirement for the requesting authority to provide disclosure in relation to the request or these submissions but the court was invited to note and attach weight to the fact that there had been no voluntary disclosure on these issues.

So far as the motive for the police in Ohio to induce the women to fabricate these serious allegations, I do not find the inferences I am invited to draw from the evidence to be credible or compelling. Mr Stepp had ceased to be a low level police informant in 2000 without incurring any apparent police displeasure. The single incident in 2003 when Mr Stepp approached the Police to inform on Barnette as a favour to his friend Snider was not as a result of any Police approach or pressure. There is no evidence, and in the circumstances it cannot be inferred, that the Police were concerned as to Mr Stepp failing to deliver his volunteered co-operation with them on this. As to the opportunity to concoct and fabricate the allegations Mr Stepp stated that all three women had been detained at the same time and place and then released on bond the day before he was arrested. He did not know this of his own knowledge. It was not supported by any documentary evidence. The court notes the detention of material witnesses. I attach no weight to the requesting government making no disclosure: they are not required to do so. The pieces of the "evidential jigsaw" as a whole do not in my view establish a proper basis to displace the assumption that the requesting state is acting in good faith".

12. The District Judge then considered the submissions in relation to the Convention and reached the conclusion set out above.
13. The grounds of appeal against the decision of the District Judge were first that she erred in her findings of fact, and second that she erred as a matter of law for any or all of six alternative reasons.
14. Mr Summers, who is counsel for Mr Stepp, was counsel for Mr Welsh and Mr Thrasher in their appeal. A number of the submissions set out in the Skeleton argument of 26^th October 2005 were also advanced in one or other of the two cases in respect of which judgment was handed down on 21^st February. Accordingly an updated skeleton argument was served on 23^rd March 2006 on behalf of the Appellant.
15. In the updated skeleton argument there is no change to the submission that the District Judge erred in fact. As to her rulings on the law, it is now submitted that the decision in Bermingham, set out at paragraphs 91 to 100 of the judgment of Laws LJ, establishes that the judge conducting an extradition hearing under the 2003 Act possesses a jurisdiction to hold that the prosecutor is abusing the process of the court. In particular Laws L J said at paragraph 100:

"The prosecutor must act in good faith. Thus if he knew he had no real case, but was pressing the extradition request for some collateral motive and accordingly tailored the choice of documents accompanying the request, there might be a good submission of abuse of process."

16. In addition, and as an alternative argument to support that conclusion, the Appellant seeks to rely on a seventh reason for submitting that the District Judge erred. The seventh reason is extracts from Hansard pursuant to Pepper v. Hart [1993] AC 593.
17. In a skeleton argument dated 27^th March 2006 on behalf of the US Government their counsel, Mr Hardy and Miss Dobbin, accept that in principle the District Judge had jurisdiction to refuse the order sought on the basis of abuse of process. However, they submit that the submissions on that point made in this case, whether of fact or law, come nowhere near to engaging that jurisdiction and, that it is fanciful to suggest that the hypotheses or speculations of Mr Stepp, in particular given his criminal record, come anywhere near the abuse jurisdiction.
18. At the start of the hearing we invited Mr Summers to make his submissions as to the errors of fact he alleged the District Judge had made, and indicated that we would consider whether or not to hear his submissions on the law, if we decided that there were facts that might give rise to a point of law. Having heard his submissions on the facts we considered the position and made known that we did not consider that the facts came near to raising an arguable point that there was abuse or bad faith on the part of the US Government, on any of the legal bases which Mr Summers had advanced in his Skeleton argument.
19. In support of his submission that the District Judge ought to have reached a different decision on the facts, Mr Summers took us to the evidence that the Appellant and his wife either did give or intended to give. In advance of the hearing before the District Judge, the Appellant gave written notice of the substance of factual evidence that he and his wife would be giving. In the event the Appellant did give evidence. His wife was due to give evidence via a live link at the hearing, but following the absence of substantive challenge to the evidence given by the Appellant the District Judge ruled that it was unnecessary to hear from her. The Appellant stated that he was not guilty of the offences for which he had been indicted in Ohio and in respect of which extradition is sought.
20. The Appellant's evidence was that certain of the officers who were involved in the proceedings against the Appellant which have given rise to this extradition request were also involved in earlier proceedings involving other offences of which the Appellant had been accused, and in some cases convicted, in the same court. Those were occasions before 1999, and in 1999. That involvement had included an occasion on which, as is common ground, the Appellant agreed to and did act as an informant, and as a result of which three individuals were prosecuted. The Appellant ceased to co-operate with the officers when he found one of them searching his own house. There is substantial documentary material to which Mr Summers referred us in relation to the three complainant women. Mr Summers submits that that shows that there were no contemporaneous complaints by any of them against the Appellant, that one of them had made a complaint of rape, but not against the Appellant and not in circumstances now alleged, and that when they did complain it was after talking with the Butler County Sheriff's Department. All of them had previous convictions, one for offences of dishonesty, two for drugs offences and one for extortion and carrying a concealed and loaded weapon. Two appeared to have been treated leniently by the court, and to have been held in custody because they were unwilling witnesses. It is said that there is no independent evidence to support the complainants' accounts.
21. For the purposes of this appeal I am prepared to assume (but of course make no finding) that all of the evidence about the Appellant's dealings with the officers he names is true, and that the documentary evidence concerning the three complainants is also true. On this material it is submitted that in all the circumstances, a reasonable inference (indeed the only proper inference) to be drawn from this evidence is that: a) as from September/October 2003, the Butler County Sheriff's department had motive to punish the Appellant for his actions and b) the three complainants have been either (i) offered material inducements by the Butler County Sheriff's Department to provide false testimony, or (ii) coerced by the Butler County Sheriff's Department to provide false testimony.
22. These inferences which it is sought to draw are of course of the utmost seriousness. This court is asked to draw those inferences without the benefit of hearing any evidence from the complainants, still less from the police officers concerned. The absence of such evidence is not itself a point that assists the Appellant in any way. Under the 2003 Act the US Government is under no obligation to provide such evidence. See the observations to this effect by Laws LJ in para 98 of his judgment in Bermingham.
23. For our part, as we indicated after hearing the submissions on this point, we feel quite unable to accede to this submission. The evidence at its highest is of motive to injure the Appellant and opportunity to do so. That is no basis at all upon which a court can be criticised for declining to find that the accounts of these complainants are fabrications. The submission that the District Judge ought to have reached a different decision as to the facts is without foundation. I would reach the same decision myself.
24. If the Appellant is returned to Ohio and stands trial and raises these matters before the jury then they will be in a position to make findings of fact upon the evidence which will then be available to them. It is no part of the Appellant's case before us that he is at any risk of not having a fair trial if he is returned. He takes no point under Article 6 of the Convention.

THE APPEAL AGAINST THE DECISION OF THE SECRETARY OF STATE

25. So far as concerns the appeal against the decision of the Secretary of State, Mr Summers now accepts on behalf of the Appellant that seven of the eight submissions advanced in the October skeleton argument have been answered adversely to the Appellant by this court in Welsh and Thrasher and Bermingham. Pending final resolution of those cases by the House of Lords (if permission to appeal is granted in those cases) the Appellant seeks a formal adverse ruling on these seven submissions in respect of those matters. That must follow.
26. However, it is submitted on behalf of the Appellant that one point survives, namely, that if returned to the USA the Appellant would possess no standing or right to argue breach of specialty before the US Courts (assuming that there was any need for him to do so) and that in the circumstances the order for the return of the Appellant constitutes a fundamental breach of the 2003 Act s.95 (1) and (3).
27. The issue of the standing of a defendant to raise a breach of specialty is raised in an expert opinion of Mr Theodore Repper. He is a criminal defence attorney with a practice in Butler County, Ohio. He states that:

"Under Ohio law, state courts are to accept the decisions of the federal Sixth Circuit Court of Appeals as persuasive authority. … In Demjanjuk v. Petrovsky, 776 F. 2D 571,583-4 (1985), the Sixth Circuit held in dicta, that a relator does not possess standing to raise the issue of specialty as such, Demjanjuk is persuasive authority for an Ohio court to prevent Stepp from receiving the protections of specialty".

28. A representation to this effect was made on the same day on behalf of the Appellant to the Secretary of State. In the representation it is added that this is contrary to the terms of customary international law and contrary to decisions of the US Supreme Court. These decisions are identified as US v. Rauscher 119 US 407 (1886); Johnson v. Browne 205 US 310 (1907).
29. Also relied on before us is the text book "International Extradition: United States Law and Practice", M. Cherif Bassiouni, 4^th Edition 2002. At page 546 the author notes that the issue of specialty may in principle be raised by the surrendering state through a protest communicated to the prosecuting state by diplomatic channels or by other means, or the relator-defendant is given the right to raise the issue irrespective of whether the surrendering state protests or not. The author notes that the circuits are divided on these two formulas on standing. He states that the circuits that provide the individual with the right to claim the specialty principle are the Eighth, Ninth, Tenth and Eleventh circuits, with ambiguity within the Third circuit. On the other hand he notes that circuits that require a protest or objection by the requested state before conferring standing on the relator-defendant are the Fifth, Sixth and Seventh circuits. The relevant passage in Demjanjuk is at paragraph 29 of the judgment which reads as follows:

"We have discussed the principle of specialty because it was argued by Demjanjuk and we have attempted to deal with every issue raised. However, we feel constrained to note that there is a serious question whether Demjanjuk has standing to assert the principle of specialty. The right to insist on application of the principle of specialty belongs to the requested state, not to the individual whose extradition is requested".

30. The US Department of Justice in a letter dated 12^th August 2005 commented upon the representations made on behalf of the Appellant to the SSHD. In relation to this point the comment is as follows:

"The defendant makes the totally false claim that the Sixth circuit's holdings as to which party has standing to argue a breach of specialty is contrary to United States Supreme Court decisions. He incorrectly cites the Supreme Court cases United States v. Rauscher and Johnson v. Browne to support his allegation. The fact is, the United States Supreme Court has never definitively addressed this issue. If it had, there would not be differing holdings in different circuits. All circuits would have to adhere to the Supreme Court Ruling".

31. Further representations were made on behalf of the Appellant on 16^th September 2005, commenting upon the letter of the Department of Justice. In that document the assertion that Demjanjuk is contrary to US Supreme Court decisions is justified by reference to a statement to that effect in the case of US v. Puentes 50 F. 3 d 1567 (11^th circuit 1995) in which that court stated "Rauscher demonstrates that, even in the absence of a protest from the requested state, an individual extradited pursuant to a treaty has standing….."
32. In their final representation, made in a letter dated 7^th October 2005, the US Department of Justice makes no further reference to this point. Likewise, in the decision letter of 18^th October 2005, the SSHD makes no specific reference to this point. He deals in detail with the other points all of which have been considered and rejected in the judgments of Laws LJ and Ouseley J on 21^st February 2006. He concluded that in the light of the contents of the responses from the Department of Justice he is satisfied that the Appellant has not shown any clear or compelling reason to suggest that there exists no (or indeed no effective) specialty protection in this case.
33. In his judgment in Welsh and Thrasher, Ouseley J dealt with this point as follows:

"27. I turn from those submissions to the question of specialty. S95 of the 2003 Act [which is set out in para 10 above] prohibits the SSHD from ordering the extradition of a person to a category 2 country if there are no "specialty arrangements" with that country….

28. Thus a specialty arrangement may exist simply because the law of the requesting category 2 country meets the requirements of the subsections. It may exist through treaty provision. … The key question is whether the arrangements cover the requirements of the subsections: that is to say, that the person extradited should be "dealt with" only for an offence which falls within subsection (4).The SSHD's consent under (4) (c) is a post surrender consent.


29. The formal and general arrangements between  the UK and US in relation to specialty are to be found in the 1972  UK-US Treaty, Article XII, in domestic force through the United States of America (Extradition) Order 1976; SI 2144. Article XII provides:


"…(1)  A person extradited shall not be detained or proceeded against in the territory of the requesting party for any offence other than an extraditable offence established by the facts in respect of which his extradition has been granted, or on account of any other matters, nor be extradited by that party to a third state –

(a) until after he has returned to the territory of the Requested party; or

(b) until the expiry of thirty days after he has been free to return to the territory of the Requested party

(2)  the provisions of paragraph (1) of this Article shall not apply to offences committed, or matters arising, after the extradition…"

30. The as yet unratified 2003 Treaty is explicit in prohibiting punishment for a non-extraditable offence as well as the trial of a non-extraditable offence.  That has long been the interpretation given by the US Supreme Court to language such as that found in the 1972 Treaty, eg Johnson v Browne 205 US 309, decided in 1907. It is not at issue but that the phrase "dealt with"  in s95 of the 2003 Act covers both trial and punishment.

31. The US contends that it observes the specialty rule, as a rule of international law and comity, in its trial and punishment of those who are extradited to it. That is hotly contested in this appeal. In part that is an issue as to what the precise requirements of that rule are, for the US may interpret it differently from the way in which the UK does. But the true issue on an appeal under this Act on that ground is whether or not the requirements of the two subsections are met.

32. The essential contentions of the Appellants are that the US would act in breach of the specialty rule … [in respects not material to this appeal]

33. The US denied that either its executive exercising its prosecutorial function or the judiciary in its judicial capacity breached or would breach the specialty rule and instead asserted its adherence to it. In part, it denied that it would act in some of the ways asserted and supported that by further undertakings, the relevance of which is disputed. In part, it denied that acting in other ways would constitute a breach of the specialty rule. However, as I have said, the key question under s95 of the 2003 Act is whether, either by law or by arrangement, the Appellants can only be tried or punished , ie "dealt with", in the US for an offence within subsection (4).

34. Underlying Mr Summers' submissions was a general theme to the effect that the US habitually violated the spirit and purpose of the specialty rule. This was a comment drawn from the work of Cherif Bassiouni "International Extradition: United States Law and Practice" 4th ed 2002, p546. He was said to be a renowned expert on this topic. The Appellants' representations to the SSHD contended that US Courts "routinely ignore" the specialty rule.

35. I do not regard this general submission as remotely justified. First, if there had been a routine disregard of the specialty rule, I would have expected that over the decades of extradition to the US from the UK, and in particular from those countries with which the US enjoys a land frontier, the UK Courts and the Courts of other sending states would have refused extradition in decisions which would be available to us. The 1972 and 2003 Treaties would not have been agreed in the terms on which they were agreed. The issue does not arise out of the refusal thus far of the US Senate to ratify the 2003 Treaty. Second, the decision of the Supreme Court in Johnson v Browne, above, makes clear the adherence of the Supreme Court to the specialty rule; its decisions are binding on all lower Courts and upon the executive exercising its prosecutorial functions. In view of the nature of the submissions, it is useful to cite from the headnote to that case which faithfully reflects the judgment.


"While the treaty of 1842, with Great Britain, had no express limitation of the right of the demanding country to try a person only for the crime for which he was extradited, such a limitation is found in the manifest scope and object of the treaty itself and it has been so construed by this Court.  United States v Rauscher, 119 U. S.407.


A person extradited under the treaty of 1899 with Great Britain cannot be punished for an offence other than that for which his extradition has been demanded even though prior to his extradition he had been convicted and sentenced therefore.


Sections 5272, 5275, Revised Statutes, clearly manifest the intention and the will of the political department of the Government, that a person extradited shall be tried only for the crime charged in the warrant of extradition, and shall be allowed a reasonable time to depart out of the United States before he can be arrested and detained for any other offense.


Repeals by implication are never favored, and a later treaty will not be regarded as repealing by implication, an earlier statute unless the two are so absolutely incompatible that the statute cannot be enforced without antagonizing the treaty, and so held that the treaty with Great Britain of 1899 did not repeal §§ 5272, 5275, Rev.Stat.


While the escape of criminals is to be deprecated, treaties of extradition should be construed in accordance with the highest good faith, and a treaty should not be so construed as to obtain the extradition of a person for one offense and punish him for another, especially when the latter offense is one for which the surrendering government has refused to surrender him on the ground that it was not covered by the treaty."regarded as repealing, by

36. Third, no decision has been cited to us in which any US Court expresses itself in a way which suggests or could support an allegation of disregard for the specialty rule as they interpret it. They instead express themselves as bound by and as adhering to it faithfully. That applies to all the cases which have been cited to us in support of the proposition that the US will in various ways breach the specialty rule in respect of these Appellants. The very highest at which this submission could properly be put is that the interpretation or application of the specialty rule differs in the US from that which the UK Courts would adopt. That may be relevant to the application of s95 to this case but it does not justify the breadth of some of the academic or learned commentary and submissions addressed to us or the Secretary of State.

37. The US Courts treat the origin and purpose of the specialty rule as deriving from the state parties' interests in extradition, and regard adherence to it as a matter of international comity and respecting foreign relations embodied in the treaty arrangements.  The purpose is to protect the sending state against abuse of its discretionary act of extradition; Paroutian below. The US accordingly applies the rule even where there is no treaty obligation requiring it to do so. That means that the position of the sending state is regarded as of the highest importance.

38. It is rather less a rule which must be applied for the protection of an individual and it is clear that there is a divergence of practice or view among the various Federal Circuits as to whether a defendant has standing to raise issues of specialty or whether only the sending state can do so. Often the issue is considered without resolution of that point. But either way I can see nothing in that which would mean that the specialty doctrine is not applied or, more importantly, that the arrangements required by s95 are not in place."

34. In these proceedings it is submitted that Welsh and Thrasher was a case concerning extradition to a court within the Fourth circuit, in respect of which the Defendants do have standing to raise the issue. Accordingly it is said that the comments of Ouseley J (with which Laws LJ agreed) at para 38 of that judgment are obiter. It is also submitted that Ouseley J was wrong and that the submission already made in the representations that Rauscher clearly conferred the right on the extradited defendant. For the US Government Mr Hardy submits that if that is so then the practice of the relevant circuits may be the subject of referral to the US Supreme Court.
35. Further, Mr Summers submits that the US courts routinely violate the spirit and purpose of the rule of specialty, and that the materials adduced before the SSHD plainly demonstrate that the Appellant is at risk of being so detained, tried or punished for any or all of eight alternative reasons. In the circumstances it was submitted that the order for the extradition of the Appellant to the USA based upon all that is publicly known about that countries interpretation, or non observance, of the rule of specialty would constitute a fundamental breach of the 2003 Act s.95(1) and (3). Accordingly it is said that the SSHD ought to have decided the question under s.95 differently and, if he had decided the question in the way he ought to have done, he would not have ordered the Appellant's extradition.
36. The first example relied on to support the contention that the USA routinely violate the spirit and purpose of the rule of specialty is a case considered by Ouseley J in Welsh and Thrasher at paras 80-81. He said:

"80. I should also refer to US v Diwan F.2d. 715 (11^th Cir. 1989) which was relied on in the representations. Diwan was convicted of mail fraud and conspiracy to persuade a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction. She contended that the conspiracy conviction breached the Extradition Treaty with the UK. At the extradition hearing, the US had contended that this conspiracy charge was mirrored in four violations of the Protection of children Act 1978. But the magistrate had dismissed the conspiracy charges because he took the view that the photographs were not indecent.

81. When she sought to have that part of the indictment dismissed pre-trial, the Justice Department sought confirmation that the UK Government did not object to the conspiracy charge. It replied in very clear terms that it had no objection. The Circuit Court held that that was the end of the matter because the defendant only had derivative rights in respect of specialty."

37. As can be seen, that case in fact supports the contrary proposition, namely that the USA do adhere to the treaty: "the Justice Department sought confirmation that the UK Government did not object to the conspiracy charge. It replied in very clear terms that it had no objection."
38. Mr Summers also referred to US v Gallo-Chamaro 48 F.3d 502 (11^th Cir.1995). As to this Ouseley J said at para 95:

"The Note [of the Colombian Government] was dealt with in a fairly cavalier manner but not in my judgement in a way which proves a breach of specialty. The US Courts do not regard the Treaty or other extradition arrangements as impinging on the procedural or evidential rules by which the extradition offence is tried. The Note therefore simply did not bite on any issue on which the views of the sending state had any legitimate role."

39. For SSHD Mr Qureshi stresses the observation of Ouseley J at para 37 as to the US courts' view of the origin and purpose of the rule. He submits that s.95(3) makes clear that in the 2003 Act it is sufficient that that there should be an arrangement between states, and there is no requirement that the individual defendant should be accorded rights.
40. Mr Summers accepts that in Bermingham a decision to the same effect would not be obiter, but he submits that there is no explicit adoption in Bermingham of the reasoning on this point in Welsh and Thrasher. However, he accepts that it must be implicit, for otherwise the court could not have reached the conclusion that it did reach in Bermingham.
41. It is clear that Laws LJ in Bermingham was expressing full approval of the judgment of Ouseley J handed down on the same day with which he had himself agreed. I adopt the words of Ouseley J in para 38: "I can see nothing in [the point about standing] which would mean that the specialty doctrine is not applied or, more importantly, that the arrangements required by s95 are not in place".
42. For these reasons I would dismiss both appeals.

Lord Justice Latham:

43. I agree.