England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
DIVISIONAL COURT
ON APPEAL FROM BOW STREET MAGISTRATES COURT
(District Judge Evans)

		Royal Courts of Justice Strand, London, WC2A 2LL
		15/05/2009

LAWS LJ:

INTRODUCTORY

1. These are appeals, respectively brought under ss. 103 and 108 of the Extradition Act 2003 ("the 2003 Act"), against (1) the decision of District Judge Evans given on 25 July 2008 at the Bow Street Magistrates Court to send the appellant's case to the Secretary of State (s.103) and (2) the decision of the Secretary of State on 23 September 2008 to order the appellant's extradition to the United States of America (s.108). The principal ground of appeal argued by Mr Sumption QC is that the appellant's extradition would perpetrate violations of the right to respect for private and family life enjoyed by the appellant and his wife by force of Article 8 of the European Convention on Human Rights ("ECHR"), and that the District Judge at Bow Street ought so to have found, and in consequence discharged the appellant pursuant to s.87(2) of the 2003 Act. It is convenient at once to set out the material parts of s.87:

"87(1) If the judge is required to proceed under this section... [as the judge here was] he must decide whether the person's extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998.

(2) If the judge decides the question in subsection (1) in the negative he must order the person's discharge.

(3) If the judge decides that question in the affirmative he must send the case to the Secretary of State for his decision whether the person is to be extradited."

2. The argument on Article 8 thus constitutes the substance of the appeal, under s.103 of the 2003 Act, against the District Judge's decision. As against the Secretary of State's order (the s.108 appeal), Mr Sumption's case is that sentencing practice in the United States, as it might affect the appellant if his extradition goes ahead, is liable to violate what may be called the specialty rule provided for by s.95 of the 2003 Act; in that case the Secretary of State is prohibited from ordering expedition, and she should have so decided. However Mr Sumption acknowledged that earlier authority in this court is plainly against him on this part of the case. Accordingly the course he adopted was not to offer substantive argument on the specialty issue (so that the s.108 appeal would fall to be dismissed in this court) but to submit that the matter was fit for the grant of a certificate and leave to appeal to their Lordships' House. I shall explain this part of the case after addressing the appeal under s.103.

FACTS GIVING RISE TO THE EXTRADITION PROCEEDINGS

3. The appellant is a British national born on 15 February 1943. He was formally Chief Executive Officer of Morgan Crucible plc, a leading international manufacturer of carbon products. Morgan Crucible was based in Windsor. It had in particular two subsidiaries which were located in the United States: Morganite Inc, based in North Carolina, and Morgan Advanced Materials and Technology Inc, based in St Mary's, Pennsylvania. I will refer to the Morgan companies compendiously as "Morgan". As CEO the appellant had responsibility for 180 subsidiary companies in over 60 countries. Before his appointment as CEO in 1998 he had worked in Morgan's carbon division for 29 years.
4. In April 1999 the United States Government began investigations into allegations of price-fixing in the carbon industry in the United States. In a judgment delivered in this court on 25 January 2007 ([2007] 1 WLR 1730, [2007] EWHC Admin 71), in circumstances which I must shortly explain, Auld LJ described the fruits of that investigation (as the United States authorities would have it) as follows, drawing on a deposition by Lucy P McClain, a trial attorney for the antitrust division of the US Department of Justice:

"e. At all material times Morgan was involved in the manufacture and sale of carbon products in the United States and in other countries. Between late 1989 and May 2000 Morgan and various companies based in France, Germany and Austria agreed to suppress and eliminate competition by fixing the prices of certain carbon products they respectively manufactured and sold. The purpose and effect of that conspiracy were to enable the companies to sell their products for prices higher than they could have sold them if they had been competing with one another as to price. In furtherance of the conspiracy, Mr Norris and his co-conspirators took part in and agreed at meetings to charge prices at certain levels and otherwise to main or increase prices of certain carbon products sold by the companies that were party to the conspiracy in the United States and elsewhere. To that end, they discussed and exchanged price quotations to certain customers, so as to ensure that they did not undercut each other's prices, and submitted collusive, non-competitive or otherwise rigged bids, and refrained from submitting bids to public transit authorities. In at least two instances when a co-conspirator inadvertently quoted lower prices to Morgan customers in the United States, Morgan complained and the co-conspirator significantly increased its quoted prices; falsely claiming to the customer that its original prices had been miscalculated.

f. Ms McClain, in her affidavit, summarised the nature and effect of this conduct, in the following words:

'The conspirators routinely sold products to their customers pursuant to their agreement to avoid price competition. In effect, the conspirators defrauded their customers by requiring they pay higher prices than they might otherwise have paid had there been no conspiracy.'

g. In April 1999 the United States federal grand jury investigating the conduct served Morganite and its affiliated companies with a subpoena requiring it to produce certain business records. Following service of the subpoena, Mr Norris instructed, through a 'task force' he set up for the purpose, all Morgan entities involved in the price fixing conspiracy to remove, conceal or destroy any documentary material, in particular Morgan's sales file in Europe, evidencing Morgan's involvement in the conspiracy. He also instructed the retention and concealment of certain documents to enable Morgan to continue monitoring the working of the conspiracy.

h. In about November 1999 Mr Norris met several of the co-conspirators in England to discuss the United States authorities' investigation into their conspiratorial dealings and meetings, and to devise a false explanation, other than price fixing, to be put to the authorities for the meetings. As Ms McClain put it in her affidavit:

'Norris and his subordinates… discussed ways in which they could conceal the true purpose of the price fixing meetings when asked about them. They decided to falsely characterise their meetings with competitors as discussions of legitimate joint ventures rather than disclose the fact that they were price fixing meetings. Norris expressed his concern that the United States investigators would not believe Morgan's false explanation that the meetings were held to discuss joint ventures, in part because Morgan had no contemporaneous notes of the meetings to support its joint venture explanation. Norris then directed his subordinates to create false summaries of the price fixing meetings that they would use as a guide or script in answering any further questions about what had occurred at their meetings.'

i. To that end, a 'script' was prepared which Mr Norris approved, of false information as to the purpose of the meetings for use in the event of any of the Morgan staff or others involved in the conspiracy being questioned by the authorities or by the federal grand jury. Those provided with the script were rehearsed and questioned about their recollection of the material contained in it. Those who Mr Norris felt would not be able to withstand questioning, he distanced from Morgan by arranging for their retirement or for them to become consultants. In January 2001 false handwritten summaries of potentially incriminating meetings were provided to the United States' authorities' investigators, who made plain they regarded Morgan's accounts of the meetings as false.

j. At or about the same time, Morgan sought to persuade a German company alleged to be a party to the conspiracy, to support it in its false representations to the United States authorities so as, not only exculpate Morgan, but also to cast blame on a French company, also alleged to be a party to the conspiracy – a solicitation in which Mr Norris took a prominent and personal role.

k. Thereafter the federal grand jury continued with its investigations, and the United States authorities entered into negotiations with various companies in the Morgan group and their employees with a view to settlement of the matter against them without criminal proceedings – a plea bargain in which, as I have said, Mr Norris and two or three of his colleagues were not included.

l. In October 2002, Mr Norris retired from all his offices with Morgan, after which he maintains he was excluded from all the continuing exchanges and disclosure made by the United States authorities in the plea bargain negotiations with other Morgan interests and personnel."

5. On 24 September 2003 the federal Grand Jury sitting in the Eastern District of Pennsylvania filed an indictment charging the appellants with obstruction of justice. On 15 October 2003, the Grand Jury returned a "superseding indictment" adding a charge of price-fixing. On 28 September 2004 the Grand Jury added a second superseding indictment ("the indictment"). This was as I understand it occasioned by the decision of the United States Supreme Court in Blakely v Washington ((2004) 542 US 296), in which it was held that any alleged facts on which a judge might rely in sentencing should be included in the indictment and submitted for determination by the jury. The indictment contained four counts: Count 1 contained the allegation of price-fixing and counts 2 – 4 were the charges of obstructing justice.
6. On 13 January 2005, the appellant was arrested in this jurisdiction pursuant to a warrant issued at the request of the United States Government. An initial hearing took place at the Bow Street Magistrates Court. On 1 June 2005, at the same court, District Judge Evans held that the conduct specified in all the charges in the indictment constituted extradition offences within the meaning of the 2003 Act, and that the appellant's extradition was not barred by the passage of time or human rights considerations. Accordingly he sent the case to the Secretary of State, who ordered extradition on 29 September 2005.
7. The appellant appealed against both the decision of the District Judge and that of the Secretary of State, pursuant to ss.103 and 108 of the 2003 Act respectively. Those appeals were dismissed by this court on 25 January 2007, when Auld LJ gave the judgment from which I have set out substantial citations. On further appeal to the House of Lords it was held ([2008] UKHL 16) that the conduct alleged in relation to price-fixing would not, if committed in England and Wales at the relevant time, have constituted an offence known to English law; in those circumstances it was not capable of amounting to an extradition offence. As regards the disposal of the appeal, the House of Lords said this:

"110. Section 87(1) of the 2003 Act requires the extradition judge to decide whether a person's extradition would be incompatible with his Convention rights scheduled to the Human Rights Act 1998. This calls for a judgment on the proportionality of an order of extradition in all the circumstances, having regard to the defendant's rights under article 8 and any other relevant article. In the present case the district judge considered that question and resolved it adversely to Mr Norris. But he exercised his judgment on a basis different from that which now pertains, namely that Mr Norris was to be extradited on the main price-fixing count, and not merely the subsidiary counts. It was suggested that the House should itself consider this question, and the question was raised whether it had power to remit the matter for re-consideration by the district judge. But resolution of this question might well call for the evidence of witnesses, which the House is unaccustomed to receive; adoption of this procedure would deprive Mr Norris of the possibility of effective appeal; and we have no doubt that the House has an inherent power to remit determination of an issue to an inferior tribunal where the interests of justice so require, and that is a power which nothing in the 2003 Act purports to abrogate.

111. In relation to counts 2-4 the House will remit the matter to a district judge to decide the question raised by section 87(1) of the Act. Depending on his answer, he will act in accordance with either subsection (2) or subsection (3) of the section."

THE PRESENT PROCEEDINGS

8. And so the matter went back to District Judge Evans, who on 25 July 2008 rejected the appellant's submission that extradition would be incompatible with his rights under ECHR Article 8 and again sent the case to the Secretary of State pursuant to s. 87(3).
9. On 18 August 2008 the appellant advanced detailed written submissions to the Secretary of State. These submissions addressed what was said to be the likely approach of the United States District Court to sentencing if the appellant were convicted of obstructing justice. It was said that the court might take into account the price-fixing conduct as being relevant to sentence, even though that conduct had been ruled by the House of Lords to be incapable of amounting, itself, to an extradition offence; and accordingly the Secretary of State could not be satisfied as to the existence of specialty arrangements in the United States within the meaning of s. 95 of the 2003 Act.
10. As I have indicated the Secretary of State gave her decision on 23 September 2008. She ordered the appellant's extradition. She gave detailed narrative reasons. I will read paragraph 25 of the decision letter:

"25. The Secretary of State must reach her own view as to whether the sentencing practice of the United States violates the speciality rule. In her view, it does not. Mr Norris will not, it seems to her, be sentenced or otherwise 'dealt with', if convicted on any of the obstruction of justice charges, in respect of the price-fixing allegations. He will only be sentenced for the obstruction of justice charges, even if such a sentence may have regard to other conduct relevant to those charges."

The letter proceeds to make reference to earlier decisions of this court in Welsh and Thrasher [2007] 1 WLR 1281 and Bermingham & Ors [2007] QB G727. These are the authorities which, as I have indicated, Mr Sumption acknowledged plainly run against the argument he would wish to raise on specialty. The Secretary of State's letter concludes that specialty arrangements are in place as required by s. 95, and so the order for extradition was made.

THE APPEAL UNDER S.103: ECHR ARTICLE 8

11. I turn to the appeal against the District Judge. As is well known ECHR Article 8 provides:

"(1) Everyone has the right to respect for his private and family life, his home and his correspondence.

(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

12. The District Judge held that the appellant's extradition would undoubtedly constitute an interference with his right guaranteed by Article 8, but nevertheless would be a proportionate response to the gravity of the extradition charges and the legitimate aim served by respecting and giving effect to the bilateral extradition arrangements in place with the United States of America.
13. Mr Sumption's challenge to the District Judge is that in a series of respects he applied too stringent a test for the application of ECHR Article 8. Thus he referred to a "high threshold" (judgment paragraph 14); laid an inapt emphasis on the notion that in extradition cases family separations were likely to be of a temporary nature (paragraph 11); paid insufficient attention to the fact that the obstruction of justice charges were "subsidiary" to the disallowed price-fixing allegation; and gave inadequate weight to the serious health problems suffered by the appellant and his wife, which he did not fully describe (see judgment paragraph 13), and which would be exacerbated if the appellant were extradited.

The Appropriate Test for Violation of Article 8

14. It is not disputed by the respondent Government of the United States (or the Secretary of State) that Article 8 is, as it is often put, "engaged", that is, that the appellant's extradition would involve a prima facie violation of the right guaranteed by Article 8(1) so as to call for a justification by reference to one or more of the interests set out in Article 8(2). It is accepted on behalf of the appellant that the extradition serves a legitimate aim within 8(2), namely the prevention of crime, so that the question remaining in dispute is whether it is "necessary in a democratic society": that is (as a very long line of Strasbourg authority shows), proportionate to the legitimate aim in view.
15. The test for proportionality in cases where the Article 8 breach is claimed to consist in the effects of the claimant's extradition (or, more frequently, deportation) to another State has been discussed and refined in a series of recent decisions of their Lordships' House and other cases. In Huang [2007] 2 AC 167, an immigration case, their Lordships disapproved a test of "exceptionality" which the Court of Appeal had adumbrated ([2005] 3 WLR 488), and said this:

"19.  In de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69, 80, the Privy Council, drawing on South African, Canadian and Zimbabwean authority, defined the questions generally to be asked in deciding whether a measure is proportionate:

'whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.'

This formulation has been widely cited and applied. But counsel for the applicants (with the support of Liberty, in a valuable written intervention) suggested that the formulation was deficient in omitting reference to an overriding requirement which featured in the judgment of Dickson CJ in R v Oakes [1986] 1 SCR 103, from which this approach to proportionality derives. This feature is (p 139) the need to balance the interests of society with those of individuals and groups. This is indeed an aspect which should never be overlooked or discounted. The House recognised as much in R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27, [2004] 2 AC 368, paras 17-20, 26, 27, 60, 77, when, having suggested a series of questions which an adjudicator would have to ask and answer in deciding a Convention question, it said that the judgment on proportionality

'must always involve the striking of a fair balance between the rights of the individual and the interests of the community which is inherent in the whole of the Convention. The severity and consequences of the interference will call for careful assessment at this stage' (see para 20).

If, as counsel suggest, insufficient attention has been paid to this requirement, the failure should be made good.

20.  In an article 8 case where this question is reached, the ultimate question for the appellate immigration authority is whether the refusal of leave to enter or remain, in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by article 8. If the answer to this question is affirmative, the refusal is unlawful and the authority must so decide. It is not necessary that the appellate immigration authority, directing itself along the lines indicated in this opinion, need ask in addition whether the case meets a test of exceptionality. The suggestion that it should is based on an observation of Lord Bingham in Razgar above, para 20. He was there expressing an expectation, shared with the Immigration Appeal Tribunal, that the number of claimants not covered by the Rules and supplementary directions but entitled to succeed under article 8 would be a very small minority. That is still his expectation. But he was not purporting to lay down a legal test."

16. Later decisions of the House deal with such matters as the need to take account of the impact of the claimant's removal upon the Article 8 rights of family members (Beoku-Betts [2008] UKHL 39, [2008] 3 WLR 166), and the effect of delay by the executive decision-maker on the proportionality issue (EB (Kosovo) [2008] UKHL 41, [2008] 3 WLR 178 – in which their Lordships refer to and in part repeat what had been said in Huang).
17. There are further decisions I should note in the extradition context. First, in Jaso & Ors [2007] EWHC Admin 2983, a case concerning European Arrest Warrants and therefore Part I of the 2003 Act, decided after Huang in the House of Lords, Dyson LJ (sitting in this court) stated at paragraph 57:

"Mr Gordon submits that the district judge was in error in applying an exceptionality test. I agree that it is not right to apply such a test as a formula for proportionality. So much is made clear by Huang. As Sedley LJ said in AG (Eritrea) v Secretary of State for the Home Department [2007] EWCA Civ 801 para 31: 'The fact that in the great majority of cases the demands of immigration control are likely to make removal proportionate and so compatible with article 8 is a consequence, not a precondition, of the statutory exercise'. The same applies in relation to extradition. What is required is that the court should decide whether the interference with a person's right to respect for his private or (as the case may be) family life which would result from his or her extradition is proportionate to the legitimate aim of honouring extradition treaties with other states. It is clear that great weight should be accorded to the legitimate aim of honouring extradition treaties made with other states. Thus, although it is wrong to apply an exceptionality test, in an extradition case there will have to be striking and unusual facts to lead to the conclusion that it is disproportionate to interfere with an extraditee's article 8 rights."

18. In Tajik v United States [2008] EWHC Admin 666 after referring to earlier learning Richards LJ (with whom Swift J agreed) stated:

"108. Whilst a judgment has to be made in every case by reference to the particular facts, it is clear from those authorities that in practice a high threshold has to be reached in order to satisfy the court that a requested person's physical or mental condition is such that it would be unjust or oppressive to extradite him."

That was a case in which, as Richards LJ explained in the same paragraph, the appellant Tajik's medical condition was "undoubtedly a cause for concern and [called] for careful consideration, given the risk that extradition and imprisonment will have such an adverse effect upon his mental and physical state as to give rise to an acute coronary event." Yet the court concluded that "the evidence concerning Tajik's mental and physical condition is [not] sufficient to render his extradition unjust or oppressive." At paragraph 154 the court confirmed that "the approach now to be adopted in an extradition case" was as expressed in Jaso at paragraph 57, which I have set out.

19. I should next cite this passage from the judgment of Hale LJ as she then was in Warren [2003] EWHC Admin 1177, also an extradition case decided in this court, in which there was pressing evidence as to the poor state of the appellant's mental health and an issue as to his fitness to stand trial in the United States:

"40... The object of extradition is to return a person who is properly accused or has been convicted of an extradition crime in a foreign country to face trial or to serve his sentence there. This includes the determination of whether he is fit to be tried, an issue which, under the criminal justice systems of both this country and New York, is decided by the court, and not by members of the executive or the medical profession. The extradition process is only available for return to friendly foreign states with whom this country has entered into either a multi or a bilateral treaty obligation involving mutually agreed and reciprocal commitments. Mr Perry, on behalf of the claimant, accepts that there is a strong public interest in our respecting such treaty obligations. Such international cooperation is all the more important in modern times, when cross-border problems are becoming ever more common, and the need to provide international solutions for them is ever clearer."

20. This reasoning calls to mind a well-known passage from the Strasbourg court's judgment in Soering (1989) 11 EHRR 439, which also foreshadows (as do many other dicta from the court) the references in Huang to the striking of a fair balance between the rights of the individual and the interests of the community:

"89 ... [I]nherent in the whole of the Convention is a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights. As movement about the world becomes easier and crime takes on a larger international dimension, it is increasingly in the interest of all nations that suspected offenders who flee abroad should be brought to justice. Conversely, the establishment of safe havens for fugitives would not only result in danger for the State obliged to harbour the protected person but also tend to undermine the foundations of extradition. These considerations must also be included among the factors to be taken into account in the interpretation and application of the notions of inhuman and degrading treatment or punishment in extradition cases."

This passage was cited by Lord Hoffmann at paragraph 23 in Wellington [2008] UKHL 72, in which the appellant complained, unsuccessfully, that his extradition to the State of Missouri on charges of murder in the first degree would violate ECHR Article 3 because he might face a sentence of life imprisonment with no possibility of parole.

21. In my judgment the learning, here and in Strasbourg, shows that the public interest in giving effect to bilateral extradition arrangements possesses especially pressing force because of its potency (a) in the fight against increasingly globalised crime, (b) in the denial of safe havens for criminals, and (c) in the general benefits of concrete co-operation between States in an important common cause. The gravity of the particular extradition crime may affect the weight to be attached to these factors, but because they are of a strategic or overarching nature, the public interest in extradition will always be very substantial. Accordingly the claim of a prospective extraditee to resist his extradition on Article 8 grounds must, if it is to succeed, possess still greater force. That is why there must be "striking and unusual facts" (Jaso), and "in practice a high threshold has to be reached" (Tajik).
22. That is how the balance between the public interest and the individual's right, inherent in the whole of the Convention, is to be struck where an Article 8 claim is raised in an extradition case. Their Lordships in Huang disapproved the application of a test of "exceptionality" as the means of striking the balance; though it is perhaps not without interest that the European Commission of Human Rights stated in Launder v United Kingdom (1997) 25 EHRR CD 67 that

"[I]t is only in exceptional circumstances that the extradition of a person to face trial on charges of serious offences committed in the requesting State would be held to be an unjustified or disproportionate interference with the right to respect for family life."

The formulations in Jaso and Tajik show that what was sought, incorrectly, to be gathered in a test of "exceptionality" is correctly reflected in a recognition of the force of the public interest in giving effect to a properly founded extradition request: a recognition, that is to say, of the relevant Article 8(2) considerations (which in my judgment find concrete form in the three public benefits I have set out at paragraph 21). This is, with respect, the point made by Auld LJ in KR (Iraq) [2007] EWCA Civ 514:

"42. Exceptionality, to the extent that it survives as an expectation, comes in at the Article 8(2) stage in drawing the balance between, on the one hand the severity in the nature and consequences of the facts constituting the Article 8(1) interference, and on the other the importance in the circumstances of the countervailing Article 8(2) factors present going to justification."

This passage is cited by Sedley LJ at paragraph 32 in AG (Eritrea) [2007] EWCA Civ 801, where the effects of Huang in their Lordships' House are fully dealt with. At paragraph 31 in AG (Eritrea) Sedley LJ himself stated:

"The fact that in the great majority of cases the demands of immigration control [AG was a deportation, not an extradition case] are likely to make removal proportionate and so compatible with art.8 is a consequence, not a precondition, of the statutory exercise. No doubt in this sense successful art.8 claims will be the exception rather than the rule; but to treat exceptionality as the yardstick of success is to confuse effect with cause."

23. Mr Sumption has I think little quarrel with the general position I have set out, although his submission on the test to be applied was marked by a certain delicacy of language. He acknowledged that the courts could not adopt an approach "which would lead to [the appellant's] discharge in the generality of cases". But he would dispute any assumption that the public interest in extradition inherently carries more weight than the individual's private life or family considerations. He submitted that the question in any case such as this must be, how much damage will be done to the effective operation of the extradition system by the appellant's discharge?
24. In my judgment Mr Sumption's position underestimates the force to be attributed to the relevant Article 8(2) considerations – the fight against increasingly globalised crime, the denial of safe havens for criminals, and the general benefits of concrete co-operation between States in an important common cause. In virtue of these factors the public interest in extradition is usually, even if it is not inherently, weightier than individual considerations of family life when in a concrete case both are subject to judgment for the purposes of Article 8(2).

Did the District Judge Apply Too Stringent a Test?

(1) As a Matter of Law

25. I may deal with the judge's approach to the law shortly, since with respect to the court below our task under s.103 of the 2003 Act is to decide for ourselves whether the appellant's extradition would perpetrate a violation of Article 8. First, the District Judge had their Lordships' decision in Huang clearly in mind: he refers to it in terms at paragraph 10. Secondly, his statement at paragraph 14 that "a... 'high threshold' will be required when considering article 8 submissions" is in context nothing more than a shorthand reference to the approach taken in Jaso and Tajik. The judge cited the latter case at paragraph 13.
26. Mr Sumption advanced (skeleton paragraph 35) a subsidiary criticism of the judge, assaulting a distinction drawn by him (paragraph 11 of the judgment) between the long-term, perhaps permanent, separation of family members that may be entailed by a deportation and the shorter period of separation usually involved in extradition cases, measured by the trial process in the requesting State and the length of any prison sentence imposed in the event of conviction. But the judge was plainly not laying down any supposed systematic divide.
27. In the circumstances the District Judge did not, in my judgment, mistake in principle the proper test to be applied to the Article 8 case.

(2) As a Matter of Fact – The Gravity of the Obstruction Charges

28. Did the District Judge over-estimate the gravity of the obstruction of justice charges? He accepted (paragraph 15) what is no more than obvious, that had there been no price-fixing investigation there would have been no scope for the price-fixing accusations. But he considered that

"the... obstruction charges are not only distinct and substantial offences, they are ones of such gravity that standing alone they merit prosecution."

Mr Sumption submitted that in context the obstruction charges, being wholly subsidiary to the disallowed price-fixing allegations, were "pretty small beer". The conduct whose investigation was said to be obstructed could not itself be charged; and this tended to demonstrate that the appellant's extradition would be disproportionate to the legitimate aim sought to be pursued.

29. So far as this submission was an appeal to the court's moral sense, I think it was mistaken. A man may lie about an accusation made against him. His lie may be a much greater offence than the wrongdoing alleged. If for any reason the accusation of wrongdoing cannot be pursued, his lie is not for that reason the least diminished in its gravity. When this case was before the House of Lords in 2008, Mr Sumption submitted that if the price-fixing charge was not an offence known to the law of England, the obstruction allegation must go as well. Lord Bingham (delivering the composite opinion of the Committee) said this:

"100. But Mr Sumption's point goes deeper. We have held that price fixing in itself is not an offence under English law. He submitted that, since there could, accordingly, never have been a criminal investigation into price fixing in this country, Mr Norris could not have been guilty of an offence of obstructing justice by interfering with such an investigation. We reject that submission. While price fixing in itself is not an offence under English law, Mr Norris accepts that, when combined with other elements such as deliberate misrepresentation, it can lead to various offences such as fraud or conspiracy to defraud. What the exact outcome of any investigation will be cannot be determined when it is in progress. Destroying documents to prevent them falling into the hands of the investigators may well affect the outcome of that investigation and is, indeed, intended to do so. So the mere fact that the result of the investigation in Mr Norris' case was a charge of simple price fixing, which does not constitute an offence under English law, is no reason to hold that it would not have been an offence under English law to obstruct the progress of an equivalent investigation by the appropriate body in this country."

While this passage says nothing about the effect of the price-fixing accusations' incompetence on the gravity of the obstruction charge, it shows that the latter has, as it were, independent life. Its gravity is in my judgment amply demonstrated by Ms McLain's evidence summarised in the judgment of Auld LJ given in the earlier proceedings in this court, which I have set out. If the facts described at (g), (h) and (i) in the passage quoted were proved, they would surely amount to a determined, sophisticated, and very dishonest conspiracy of concealment undertaken to avoid the threat of criminal prosecution. In my judgment the obstruction of justice charges, taken at their face value, are very grave indeed. Their gravity was by no means over-estimated by the District Judge.

(3) As a Matter of Fact: the Health of the Appellant and his Wife, and their Family Life

30. This part of the case engaged Mr Sumption's most substantial submissions. As I have said, the appellant was born on 15 February 1943, so is now 66. He and his wife were married in 1966. They have two sons and three grandchildren. The US Department of Justice investigation began in 1999. In 2000 the appellant was diagnosed as suffering from prostate cancer and underwent surgery in March 2001. He contracted MRSA in the hospital. A benign tumour was removed from his side in June 2002. He was not, however, free of cancer and had to undergo radiotherapy in 2002. He retired from Morgan on health grounds in October of that year. Towards the end of the same year Morgan struck a plea agreement with the Department of Justice, but it did not include the appellant. As I have shown the extradition process effectively commenced in 2005, with the appellant's arrest on 13 January. In her first witness statement (made on 27 April 2005) Mrs Norris describes with some eloquence the deteriorating quality of life which she and her husband faced as these events crowded around them. In her second statement (30 May 2008) she paints a worsening picture, and also states (paragraph 8) that if the appellant had to spend any length of time in custody in the United States her psychiatric condition would prevent her from re-locating there, where the only people she knows are connected with Morgan, and they are prohibited by the terms of the plea bargain from speaking to her or her husband.
31. A good deal of medical evidence has been placed before us. It begins with a letter of 20 April 2005 to the appellant's solicitors from Dr Jones, the appellant's general practitioner. He reviewed the prostate cancer history, as regards which he could not say there had been a complete recovery, and the onset of other problems: raised blood pressure and shortness of breath. In October 2006 Dr Jones described difficulties relating to the appellant's hearing, left knee, right hip, incontinence and a recently developed hernia. He stated that "[t]he legal problems Mr Norris has been having during the past 2 – 3 years have had a devastating effect upon him and his family". By 7 February 2007, when the GP next wrote, the appellant's mental state had deteriorated. His powers of concentration were poor, he had marked short-term memory loss, was depressed and tended to shut himself away. He was anxious about his wife's psychological state. His physical problems largely persisted although his blood pressure was normal. He and his wife were "at the end of their tether". By 23 May 2008, when the GP next reported, the appellant was registered disabled and had had a total left knee replacement. Dr Jones was anxious as to his mental state and arranged for him and his wife to see a psychologist.
32. In fact we have expert psychiatric reports on both the appellant and his wife which pre-date the GP's May 2008 letter. Professor Tom Fahy provided these on 15 February 2007. In his report on the appellant he states that when he interviewed him, the appellant "presented a normal mental state". However

"Although Mr Norris' current symptoms fall short of a formal psychiatric diagnosis, it is reasonable to assume that his symptoms would deteriorate in the face of imminent extradition, actual extradition, conviction and/or imprisonment in the US."

I mean no insensitivity, but this is surely wholly unsurprising.

33. Professor Fahy reported again on 27 May 2008. He stated that

"Mr Norris' mental health has deteriorated since I saw him in February 2007. He is now describing more prominent symptoms of low mood, loss of interest and pleasure in his usual activities and feelings of helplessness and pessimism about his life situation."

However

"Mr Norris' mood disturbance is not persistent or severe enough to warrant a diagnosis of a depressive illness."

Finally

"There is no serious prospect of this situation improving for him until the legal situation is resolved, though if he were to be extradited, it is likely that imprisonment and isolation from his family would lead to a further deterioration in his mental health and the development of more significant depressive symptoms."

34. As regards Mrs Norris' state of health it is enough to refer to a report dated 19 June 2008 from Michael Kopelman, who is a professor of neuropsychiatry at King's College London and St Thomas's Hospital. He saw both the appellant and Mrs Norris on 9 June 2008, and interviewed them separately and together. Mrs Norris told him she had had suicidal ideas, panic attacks and palpitations. The appellant told him there had been a "total change" in his wife's personality. Professor Kopelman opined that Mrs Norris suffered from a "major depression of moderate severity" or a "moderate depressive episode" (depending on which set of criteria was used). Its severity was however difficult to evaluate: she was able to maintain at least some social activities, but was a person who the doctor suspected was "good at hiding her real emotions". He concluded (Opinion, paragraph 6):

"I have no doubt that the prolonged and more serious nature of Mrs Norris's current depression results from the prolonged extradition proceedings... To this extent, the continuing nature of these extradition proceedings has caused Mrs Norris 'hardship' in the sense of severe psychological suffering and mental deterioration. I have no doubt that this would be greatly worsened, were her husband to be extradited."

35. In the course of his submissions relating to the health of the appellant and his wife advanced in support of his case on ECHR Article 8 Mr Sumption also referred to the witness statement of Mr Byrne, a partner in the New York office of his instructing solicitors. Mr Byrne states (paragraph 11 – 14) that if the appellant is extradited the Department of Justice might seek to have him held in gaol without bail before and during his trial; and that if convicted and sentenced to imprisonment he might, as an alien, be incarcerated in a low security "Federal Correctional Institution" with mostly dormitory or cubicle housing.
36. On Article 8 Mr Sumption lays considerable emphasis on the appellant's age: 66 or 67 by the time he arrives in the United States, with perhaps another year to go before trial. If he is convicted, having regard to the United States Federal Sentencing Guidelines (see Judge Martin's witness statement, paragraphs 14 – 21) he might serve a custodial term between 10 and 27 months, depending (no doubt among other things) on whether the price-fixing allegations are taken into account. He could be 70 or more before he got home. Given his medical history his expectation of life is uncertain; his health is liable to deteriorate if he is extradited; his wife, from whom he would be separated, is critical to his well-being; and Mrs Norris' own Article 8 rights have to be considered.
37. Mr Sumption submits that in all the circumstances a refusal to extradite the appellant would not so undermine the public interest in extradition that these pressing Article 8 considerations must take second place. His reliance on the medical evidence was intertwined with his suggestion that in context the obstruction of justice charges were "pretty small beer". In reply he laid particular emphasis on the closeness and duration of the appellant's relationship with his wife, and (given their age and state of health) the limited nature – limited in time – of their expectation of a future life together. In this context the enforced separation which the appellant's extradition and possible imprisonment in the United States would necessarily entail must be all the harder to bear.

Conclusion on Article 8

38. On the whole case, I do not consider that on a proper application of the law as I have sought to describe it the Article 8 considerations can be said to outweigh the public interest in extradition. I have already rejected (paragraph 29) Mr Sumption's argument as to the gravity of the extradition offences and held that, taken at their face value, they are very grave indeed. I acknowledge that the age and state of health of the appellant and his wife will mean that their predicament will bear more hardly upon them. But much of their feared hardship and distress would confront any extraditee who was a family man; it is plain that all appropriate medical care will be available to the appellant; the conditions of the appellant's imprisonment (if that eventuates), while they may be Spartan, will not themselves offend Article 8, and there is no plea of Article 3; while Mrs Norris may presently be convinced she could not go and stay in America, I apprehend she may well consider making visits; and once the outcome of any trial is known, the appellant, if convicted, will face a future with a definite release date, or latest release date. On the other hand, the public interest in extradition bears on the case with full force.
39. I would dismiss the appeal against the District Judge's decision brought under s.103 of the 2003 Act.

THE APPEAL UNDER S.108: SPECIALTY

40. S.95 of the 2003 Act provides in part:

"(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, other than one in respect of which a sentence of death could be imposed;

..."

The Nature of the Issue

41. I indicated at the outset that Mr Sumption acknowledged that earlier authority in this court is plainly against him on this part of the case. Accordingly the course he adopted was only to submit that the matter was fit for the grant of a certificate and leave to appeal to their Lordships' House. I should first explain the nature of the case he would wish to bring, in reliance on s.95, against the Secretary of State's order for extradition.
42. The starting-point is the decision of the House of Lords that the price-fixing allegation was not an offence known to the law of England. It is then submitted that by force of the United States Federal Sentencing Guidelines the likelihood is that any sentence passed on the appellant for the obstruction of justice charges would also, and avowedly, punish him for the price-fixing charge. Mr Sumption points to count 2, paragraph 11 of the indictment, which states:

"Each and every allegation contained in Paragraphs 1, 6 and 7 of Count One of this Indictment are here realleged with the same full force and effect as though said Paragraphs were set forth in full detail."

As I have said count 1 contained the allegation of price-fixing and counts 2 – 4 were the charges of obstructing justice. Thus the price-fixing charge is expressly alleged again, as part of the obstruction of justice allegations. It is said that the US Prosecutor's intention so to proceed has not been modified, far less abandoned, in light of the ruling of the House of Lords. However there is a dispute on the written evidence as to which section of the US Sentencing Guidelines would be applied for the calculation of the appellant's sentence. I need only deal with this in outline, since the court cannot authoritatively resolve a question of United States criminal practice on contrary statements whose authors have not been cross-examined, and in any event the sentencing exercise is, as I understand to be accepted on all hands, ultimately a matter for the trial judge's discretion.

The dispute is, shortly, as follows. Ms McLain for the US Government says that the guideline appropriate to the offence of obstructing justice would be applied, and in that case Mr Keith on behalf of the Secretary of State submits that the sentencing judge would not have to have regard to the price-fixing allegations at all. Mr John Martin (giving evidence for the appellant) says by contrast that the appropriate guideline is that relating to "Accessory after the Fact", and in that case Mr Sumption submits that the price-fixing allegations would certainly be considered; indeed he says that even if the obstructing justice guideline is followed, by virtue of the price-fixing allegations a higher point in the guideline would be selected for the determination of the appellant's sentence, which would accordingly be more severe than otherwise. Mr Sumption then submits that if the price-fixing allegations were taken into account there would be a breach of s.95 of the 2003 Act, because the appellant would have been "dealt with" for an offence other than one falling within ss.(4) – he would effectively have been sentenced (and thus "dealt with") for an offence for which he had not been, and on the House of Lords' ruling could not have been, extradited.

43. It seems to me we are bound to conclude that there is at least a lively possibility that (if the appellant is convicted) the sentencing judge will have regard to the price-fixing allegations. Mr Keith does not accept that position, but submits that in any event, such an outcome would not violate the specialty rule under s.95, and it is on this point that he is supported by authority of this court.

Welsh and Thrasher and Bermingham

44. It is first necessary to cite Welsh and Thrasher v Secretary of State [2007] 1 WLR 1281, [2006] EWHC Admin 156, a decision of this court, at some length. Ouseley J (with whose judgment I agreed) said this:

"32. The essential contentions of the Appellants are that the US would act in breach of the specialty rule (1) by seeking, and on past experience obtaining, an indictment which superseded the one upon which the extradition request was based, and which in particular would contain counts relating to the money laundering offences upon which the US accepted that it could not seek extradition because of the double criminality rule, and which might also contain counts relating to other frauds not based on the facts underlying the extradition request..., and (3) by increasing the sentences which the Appellants would otherwise face for the wire and mail fraud offences on the grounds (i) that those offences had also involved the money laundering activities upon which extradition had not been possible...

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... 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 [I interpolate: it has since been ratified]. 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...

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...

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 s.95 are not in place."

45. Ouseley J proceeded to review a good deal of United States authority. With respect I need only set out these following passages, dealing with specialty and sentencing:

"102. In U S v Lazarevich 147 F. 3d 1061 (9^th Cir. 1998), Lazarevich was extradited from the Netherlands on charges of making false statements on the passport applications of his children. Extradition was refused on two charges of child abduction because he had already been tried and convicted on those charges in a Belgrade Court. Following conviction in the US on the extradition offences, he was sentenced but his sentence was increased from what it otherwise would have been, because the false applications had been made in order to facilitate the commission of the child abduction offences of which he had been convicted in Belgrade. That affected his criminal history category in the Sentencing Guidelines. The question for the Court was whether he was being punished for the child abduction offences.

103. It concluded that he was not being punished for those offences, in the light of Supreme Court authority, and the extradition context did not require a distinctive approach. The Treaty had to be interpreted in the light of the long-standing practice of the US of considering uncharged relevant evidence in sentencing, a practice pre-dating the foundation of the state, which gives it an English colonial ancestry. An interpretation of the Treaty which precluded that practice would be inconsistent with the intentions of at least the US as a Treaty partner. The long history of the practice meant that the Treaty should be considered as having contemplated that the US would follow its practice...

104. I do not regard this case as evidencing the very broad proposition put forward by Mr Summers that the US punished those extradited to it in defiance of the specialty rule, on the basis that the sending countries were all on notice that it would do so. It shows that the US regards offences in respect of which extradition has been refused as capable of aggravating sentence but does not regard that as a breach of specialty. It interprets Treaties in the light of its well-known practice and assumes that the other party would have objected to that practice in the Treaty or in the extradition order if that practice were regarded by the other party as objectionable...

Then after citing US v Garrido-Santana 360 F.3d 565 (6^th Cir.2004), Ouseley J said:

"117. The case illustrates the US Courts' view that the doctrine of specialty, in its scope and application in US courts, is governed by US law and not by the law as applied in the sending state. They are prepared, as other cases show, to accept the sending state's position on the scope of the extradition order. But it seems that they may take a different view of the role of the sending state's position when it comes to sentencing, at least in the absence of clear objection. There is a theme that treaty partners know of the way in which the US Courts approach sentencing and if that had caused serious reservations to the other state party, the position would have been clarified in the treaty itself.

...

119. The sentence for an extradition offence can be increased by reference to aggravating factors which could have been but were not the subject of a separate charge in the extradition request, or by reference to aggravating factors which could not have been the subject of charge in an extradition request because of the rule of double criminality. The US Courts adopt the position that they are sentencing for the extradition offence by reference to all the material circumstances and not for an offence for which extradition would have been or was refused permission. Thus, in the eyes of the US Courts, there is no breach of the specialty rule."

46. The court's conclusions on the scope of s.95 of the 2003 Act in light of American practice are expressed in Ouseley J's judgment as follows:

"135. The effect of s95 is to impose a prohibition on extradition where the conditions it contains are not met. In my judgment, it does require the English Courts to reach their own view as to whether or not the practice in the USA amounts to 'dealing with' someone, which includes punishing him, in a way prohibited by s95. It does not permit the UK simply to say that a practice is not regarded as falling foul of the specialty doctrine by the USA and therefore does not fall foul of the prohibition in the Act. It is not permissible simply to adopt the USA's view of what offences are being punished.

136. However, the language of the Act has to be applied to many treaties and foreign justice systems which will differ from each other as well as from those of the UK. It is not intended, I believe, to require the imposition of peculiarly English or UK sentencing practices before extradition can occur. Reaching an answer on the scope of 'deal with' in relation to extradition and punishment demands a purposive and flexible approach, which must be capable of accommodating the reasonable range of sentencing practices and values which other countries adopt. The recognition of important technical requirements is not the same as the erection of technical hurdles wherever ingenuity can manage it. A Court may properly be reluctant to adopt a construction of the Act which would allow those who flee a jurisdiction to gain an unwarranted reward for their flight, because of the routine and justifiable sentencing practices of the jurisdiction which they seek to evade.

137. I also judge it to be significant that the Act is not intended to bring about profound changes in extradition arrangements in a way which would add a novel and significant hindrance to extradition. If there are radical changes they are aimed at making extradition a less time-consuming and technical area of international co-operation. The Act cannot have been intended to halt extraditions to the USA on the basis of a sentencing practice which its case law suggests has been in place since before its independence. I see force in the approach of the US Courts that if this sentencing practice was seen by the UK or other countries as breaching Treaty obligations, there would have been a clarification in the superseding Treaties, but instead there is nothing which excludes that practice. (The addition of the express prohibition on punishment for a non-extradition offence makes explicit what the US Courts have always accepted was implicit in extradition treaties which prohibited trial for certain offences.) I have seen nothing in any UK or USA case to show that the UK has ever regarded this long-standing practice as a breach of a Treaty or of specialty.

138. For my part, I do not consider therefore that the absence of an arrangement which would prevent the extradited person being punished for the extradition offence in the way in which he could be under the now discretionary USA Sentencing Guidelines shows that the requisite arrangement for s95 is not in place. Such a person is not being 'dealt with' within the scope of that phrase in the Act for an offence for which he has not been or could not have been extradited. He is being 'dealt with' for that very offence by reference to conduct which is relevant to the gravity of the way in which he committed the offence or to the offending behaviour revealed by it."

47. If the US court comes to sentence the appellant in this case, and in doing so takes the price-fixing allegations into account, on this authority the appellant will not thereby be "dealt with" in breach of the specialty rule for an offence for which he could not have been extradited. He will be "dealt with" for obstructing justice, by reference to conduct relevant to the gravity of the offence for which he was rightly extradited.
48. In Bermingham & Ors [2006] EWHC Admin 200, [2007] QB 727 (which was heard back-to-back with Welsh & Thrasher) the court was again constituted by Ouseley J and myself. Again in that case there was a submission that the specialty rule would be violated if the appellants were extradited because a superseding indictment would be deployed to punish them for other offences. I said:

140. l should, at least for clarity's sake, state our essential conclusions on the 'superseding indictment' point in this judgment. There is no doubt that 'superseding indictments' are deployed in the United States for the trial of extradited defendants. But that is not to say that such defendants are put on trial in breach of the specialty rule. LeBaron contains a characteristic statement, made by Circuit Judge Garza after citing earlier authority (627):

'[T]he doctrine of specialty is concerned primarily with prosecution for different substantive offenses than those for which consent has been given, and not prosecution for additional or separate counts of the same offense. The appropriate test for a violation of specialty "is whether the extraditing country would consider the acts for which the defendant was prosecuted as independent from those for which he was extradited".'

The formulation there quoted is from Andonian at 1435. This test, as Ouseley J shows, is a recurrent theme through the cases. In applying it, moreover, the courts of the United States do not simply go on the basis that the absence of specific objection by the sending State is to be taken as consent to the defendant's trial on a re-formulated charge. I would respectfully repeat and emphasise this passage in Ouseley J's judgment in Welsh and Thrasher:

'84. The US Courts do not infer consent merely because there is silence. They do not turn a blind eye to what are obvious problems in the sending state's known attitude, whether from past extradition requests or from the particular case or Treaty involved. Rather… they adopt a realistic assessment of the sending state's attitude, in recognition of the specialty doctrine as a principle of international comity and out of respect for a foreign state's sovereignty. But the Courts do not treat it as a technical hurdle devised for the benefit of properly convicted criminals, enabling them to take points which truly belong to the sending state and which the Courts properly infer that the sending state does not take.

85. There is nothing in the cases which would justify the conclusion that the US Government or Courts would not respect the express limits in the UK-US Treaty or in the 2003 Act or in any judgment of this Court…'

141. This summation of the position, and indeed the formulation of the test for a violation of the specialty rule set out in Andonian, LeBaron and other cases, reflect the very approach taken by the Supreme Court in Rauscher in 1886 to which I have already referred. Rauscher was extradited from the United Kingdom on a charge of murder pursuant to an extradition treaty of 1842. But he was sought to be tried in the United States for an offence of unlawfully inflicting cruel and unusual punishment on the same victim. Both alleged crimes arose out of what Rauscher was said to have done to a member of the crew on board a ship of which he was the second mate. The Supreme Court by a majority (Waite CJ dissenting) held that Rauscher could not be tried on the lesser charge. In Kaufman the United States Court of Appeals (5^th Circuit) gave this useful and illuminating summary of the Rauscher case (1008-1009):

'Rauscher… was decided against a backdrop of political controversy over precisely whether the treaty contained a rule of specialty. The controversy arose after the conclusion of the treaty when one Winslow was charged with forgery in the United States. The United States requested the extradition of Winslow, who had taken refuge in England. Before Britain agreed to relinquish Winslow, the British Foreign Office required a pledge that the United States would not try Winslow on any charge other than forgery. The United States refused to accede to the British demand, diplomatic negotiations ensued, and the matter was significant enough that the British Foreign Minister, Lord Derby, spoke on the subject in the House of Lords. Thus, although there is no record of a formal British protest of the extradition of Rauscher, the British had made known their very strong feelings through a history of negotiations and deliberations.'"

49. In Welsh & Thrasher and Bermingham the court certified a question for their Lordships' House on the specialty issue, but refused leave to appeal; and their Lordships also refused leave to appeal. Mr Sumption submits that Welsh & Thrasher and Bermingham should not be followed. It would be open to him to submit in this court that they were wrongly decided; the Divisional Court does not strictly bind itself, but will only depart from a previous Divisional Court decision if persuaded that the latter was "clearly wrong": R v Greater Manchester Coroner ex p. Tal [1985] QB 67, 81. However Mr Sumption's argument is more modest. As I have said, it is that we should certify a question (and grant leave to appeal) so that the House of Lords may have a further opportunity to consider the specialty rule and the meaning to be attributed to "dealt with" in s.95 of the 2003 Act, in particular in the context of extraditions to the United States. He also submits that Welsh & Thrasher and Bermingham are distinguishable from the present case on the specialty issue.

Conclusions on the Appeal under S.108

50. I will deal with that last point first. In seeking to distinguish Welsh & Thrasher and Bermingham Mr Sumption relies on the conclusion of the House of Lords in the present case that the main conduct on which extradition was sought was not a crime known to English law when it was allegedly committed; the fact that the extradition offence of obstructing justice is "parasitic upon" the price-fixing allegations; and the fact that no undertakings have been offered in this case as to the scope of any sentence – indeed (as I have shown: paragraph 42) the indictment expressly re-pleads the price-fixing allegations.
51. In my judgment the ratio decidendi of Welsh & Thrasher, adopted in Bermingham, as it relates to s.95 and extraditions to the United States may be gathered from paragraph 138 of Ouseley J's judgment. It is that an extraditee who is punished pursuant to the Guidelines in such a way that other conduct for which he could not be extradited is taken into account against him "is not being 'dealt with' within the scope of that phrase in the Act for an offence for which he has not been or could not have been extradited. He is being 'dealt with' for that very offence by reference to conduct which is relevant to the gravity of the way in which he committed the offence or to the offending behaviour revealed by it." The facts of the present appeal, assuming that the price-fixing allegations are taken into account, plainly engage this reasoning, which is not distinguished by any of Mr Sumption's points. As regards the indictment's re-pleading of those allegations, which on the face of it looks very stark, there is a certain irony. It was done for the appellant's advantage: in order, as Mr Keith submitted, to fulfil the principle in Blakely v Washington so as to require notice and proof to the criminal standard of these allegations if they were to be relied on in sentencing the appellant for obstructing justice.
52. On the footing that Welsh & Thrasher and Bermingham apply to the case, should we certify a question so that their Lordships' House may have an opportunity to consider their correctness? I think not. Their Lordships declined to grant leave to appeal in those cases themselves. I recognise at once that this carries only modest weight, since it is not to be inferred that the House considered the cases were rightly decided; leave may have been refused for other reasons. But it carries some weight.
53. Other cases in this court have tended to confirm, and perhaps emphasise, the approach taken in Welsh & Thrasher and Bermingham. In Ahmad & Aswat [2006] EWHC Admin 2927 at paragraph 79 I said:

"[W]ere the United States authorities to bring about a state of affairs ... in which either appellant was sentenced to death, that would violate the specialty rule or the assurances or both. The United States' adherence to the specialty rule has been firmly vouchsafed by decisions of the Supreme Court beginning with United States v Rauscher 119 US 407 decided in 1886. The general position is discussed in detail in Ouseley J's judgment in Welsh and Thrasher to which I have already referred. I will just cite this extract [paragraph 84 and part of 85 are then cited].

Adherence to the specialty rule is required by the domestic law of the United States, which incorporates, as I have said, Article XII of the 1972 Treaty. In this jurisdiction it is right, of course, that it is the Secretary of State's duty under s.95 of the 2003 Act to safeguard the specialty rule, rather than that of the court. I have not set out s.95 given that the appeals against the Secretary of State's decisions have been withdrawn, as I have explained. But the fact that we may, for reasons given in Welsh and Thrasher and in Bermingham, be confident of the United States' general loyalty to the specialty rule tends to contradict Mr Fitzgerald's argument that the district judge should have found bars to extradition (such as potential exposure to the death penalty) where the claimed bar involves an assumption that the specialty rule will be violated."

In Tajik [2008] EWHC Admin 666 Richards LJ said this at paragraphs 149 – 150:

"Despite the weight of those authorities [viz. Welsh & Thrasher and Bermingham], Mr Jones ventures to submit that there is a real risk of the specialty rule being infringed in Tajik's case by the bringing of a superseding indictment. He says that the Secretary of State's letter failed to have proper regard to the evidence of Mr Zagaris as to the existence of such a risk.

In my view Mr Keith, for the Secretary of State, was correct to describe that submission as factually and legally unsustainable. Mr Zagaris did not assert in his report that a superseding indictment would or might have the effect of breaching the specialty rule; and the cases to which he referred, as shown by the analysis in Welsh and Thrasher, would not support any such suggestion... In any event, there is nothing in Mr Zagaris's evidence that is capable of undermining the consistent line of authority in this court to the effect that the US authorities and courts will respect the specialty rule and that the specialty arrangements with the United States meet the requirements of s.95."

54. It is important, moreover, to have in mind the true nature of the exercise being undertaken when a court, in passing sentence, takes account of conduct by the defendant other than the bare fact of the offence itself. I have already set out (paragraph 10) paragraph 25 of the Secretary of State's decision letter, which concludes with the sentence: "[h]e will only be sentenced for the obstruction of justice charges, even if such a sentence may have regard to other conduct relevant to those charges." This reflects, with respect, the elementary fact that the commission of every offence has a context; there is a penumbra of surrounding fact which will include elements that aggravate, and elements that mitigate, the offence itself. An aggravating element may involve distinct criminal behaviour. Subject to proper safeguards for the defence, that circumstance will not rule out consideration of such an element as relevant to the sentence the court thinks right to pass. That does not mean the defendant is being sentenced for the distinct crime, for which it may be he is not prosecuted. This is a just and rational position, and is with respect reflected in the American practice.
55. In all the circumstances I would not certify a question for their Lordships.
56. I would dismiss the appeal under s.108.

Mr Justice Openshaw:

57. I agree.