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.
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