UK: Exit Strategies

A shorter version of this article was published in The Lawyer on 17 June 2008

It can seem difficult to spot general trends in extradition case law and the decision of the House of Lords in partially refusing the extradition request from the US for Mr Norris may provide a useful excuse to attempt this analysis. Mr Norris's extradition was sought for his part in the price fixing engaged in by his former employer Morgan Crucible and his alleged actions in seeking to obstruct a US criminal investigation into this.

Most first instance extradition decisions, which are all reached by designated District Judges sitting at the City of Westminster Magistrates' Court, are unreported and only the most sensational receive any publicity. Appeals are heard by the Queen's Bench Division of the High Court and whilst these decisions are now sometimes more easily available on the Internet, they do not receive as wide a circulation as most criminal cases through case reports or digest entries.

This can accentuate the ordinary difficulty of criminal appeals as judges hearing an extradition appeal may have little or no familiarity with extradition law or the historical concepts which underpin specific statutory provisions. It is even more unlikely that a judge will be aware of seminal cases or even recent case law dealing with issues raised in an appeal. All of this can conspire to make judges especially reliant on counsel appearing to highlight the relevant case law. Less experienced practitioners without a detailed awareness of case law may struggle to do this and, through no malign intent, may end up only presenting those cases they have happened upon which support the argument they are advancing. This can lead to a rather haphazard development of the law when neither defence nor prosecution counsel advances an authority which would be at odds with the position ultimately adopted by the court in its judgement.

This is compounded as the House of Lords agrees to hear very few extradition cases. Mr Norris's case is one of a handful which has been heard since 1 January 2004 when the Extradition Act 2003 came into force. It is more likely that advocates appearing before the House of Lords will be experts in extradition and that a full argument will be developed before the court allowing an authoritative ruling taking into account all the relevant case law but this is not guaranteed.

Extradition cases generally fall into one of two categories. The first are those which exhort giving effect to the important international arrangements which have been made to fight serious crime and terrorism. The second category are cases in which it appears that an extremely technical analysis of what is inevitably dense complex legislation interpreted through the prism of sometimes very old cases leads to the discharge of a defendant- these judgements tend to include statements emphasising the need to apply strict procedural safeguards given the dramatic personal consequences of an extradition order . This tension is perhaps best illustrated in a passage from the decision of the House of Lords in Norris:

"At the very least, Mr Norris submits, there is ambiguity as to the meaning of section 137 and accordingly, as a criminal statute, it should bear the construction more favourable to the liberty of the subject—the approach favoured by each member of the majority in Aronson towards the 1967 Act. Against this, however, there is telling authority the other way. La Forest J, sitting in the Supreme Court of Canada, noted in United States of America v McVey [1992] 3 SCR 475, 513:

"Consistent with the general principle that extradition laws should be liberally construed so as to achieve the purposes of the Treaty, a much less technical approach to extradition warrants and to common law warrants has been adopted ..."

Similarly, in In re Ismail [1999] 1 AC 320, 326-327, Lord Steyn said that "a broad and generous construction" should be given to extradition statutes "intended to serve the purpose of bringing to justice those accused of serious crimes. There is a transnational interest in the achievement of this aim.""

However, to apply this analysis may be to fall into the obvious trap. Some of the decisions would suggest that judges are no less prone to deciding extradition cases influenced by the particular circumstances of a defendant or the nature of the allegations against them (for example, paedophilia or terrorism) than in "ordinary criminal cases". In some cases the personal circumstances of the defendant or their family makes it seem unjust or unfair that they should be sent to another country away from family for a trial often for an offence alleged to have taken place many years previously. This is not always the overt reasoning applied by the court. In Norris the House of Lords held that he could not be extradited for the price fixing allegations but could be extradited for the various allegations of obstruction of justice. However, the case has been remitted to the District Judge to consider whether to order extradition on these charges would violate Mr Norris's right to private and family life under Article 8 of the ECHR. Mr Norris resigned from Morgan Crucible in 2002 in order to fight prostate cancer and he is now 65. The company admitted taking part in cartel activities to the European Commission and the US Department of Justice and has paid substantial fines.

In some ways it may be easier to take these factors into account, both when ordering extradition or discharging a defendant, given that the court is always necessarily being presented with a partial view of a case (as contained in the extradition request). A judge ordering extradition may take comfort from the supposed fair trial process that a defendant will receive after extradition which should mean that any unfairness in the investigation and prosecution process will be cured and any legitimate defence will be vindicated. They will also be very aware that ordering extradition will avoid any negative diplomatic consequences. A judge ordering a defendant to be discharged may well appreciate that even if a defendant is guilty then the likely further harm that they can cause will be reduced as they will be known to the UK police and will be unlikely to travel outside the UK as to do so would be to risk arrest at their destination to undergo further extradition proceedings.

It is a little noticed but extremely pernicious effect of international agreements for extradition that successfully defeating an extradition request in the UK leaves a defendant unable to travel outside the UK without risking arrest on arrival and they may then undergo further extradition proceedings (often in custody) which will not automatically lead to the new extradition request being denied. The requesting state therefore has the power to keep a person immobile in the UK for the rest of their life if they continue to indicate that they will make a request for extradition to any country in which a defendant is arrested. This information is ordinarily circulated by Interpol and a Red Notice is issued by one Interpol member state as a request to all other member states to arrest a person with the promise that a formal extradition request will follow. It is notoriously difficult to appeal to Interpol to remove a Red Notice even if, for example, a person has had asylum granted by the UK and an extradition request refused by the UK. Mr Norris may be celebrating the decision of the House of Lords and hoping that he the District Judge will find in his favour. However, even if he defeats the extradition request he will probably be looking forward to spending the rest of his retirement holidaying in the United Kingdom.

Many lawyers representing defendants before the Magistrates' Court may not have sympathetic facts in their own cases. Given this they will often employ the approach of the successful surfer. Keep an eye on the swell (the appeal lists) and try to spot a wave on the horizon that they can ride attempting to match its speed (by aligning the submissions in their case with an appeal that is pending); then manoeuvre into a position where the wave (appeal decision) curls over the top forming a tube. Many lawyers will have followed Mr Norris's case with great interest and will now be hoping that this decision will allow them to ride to safety on his wave. However, this decision is not likely to mark the advent of active and potentially controversial judicial intervention in the extradition process but instead simply another tip of the see saw as the court deals with the particular circumstances of Mr Norris's case.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.