House of Lords
Published March 14, 2008
Norris v Government of the United States of America
Before Lord Bingham of Cornhill, Lord Rodger of Earlsferry, Lord Carswell,
Lord Brown of Eaton-under-Heywood and Lord Neuberger of Abbotsbury
Speeches March 12, 2008
A person could not be extradited to the United States of America to stand
trial on charges brought under US legislation which declared cartels to be
illegal, to stand trial for price-fixing offences alleged to have been
committed from 1989 to 2000 because during that period price-fixing
agreements and cartels were not illegal under English law, unless there were
other aggravating features such as dishonesty or deception.
The House of Lords so held, when remitting to the district judge an issue
concerning the appeal of Ian Norris from the dismissal by the Queen’s Bench
Divisional Court (Lord Justice Auld and Mr Justice Field) ( The Times
February 7, 2007; [2007]1 WLR 1730) of his appeals: (i) under section 103 of
the Extradition Act 2003 from District Judge Nicholas Evans at Bow Street on
June 1, 2005, who sent the case to the Secretary of State for the Home
Department for his decision whether Mr Norris should be extradited under
section 87(3) of that Act, pursuant to an extradition request from the
Government of the United States of America; and (ii) under section 108 of
the 2003 Act against the Home Secretary’s decision, dated September 29,
2005, to extradite Mr Norris to the USA.
Mr Jonathan Sumption, QC, Mr Richard Gordon, QC and Mr Martin Chamberlain
for Mr Norris; Mr David Perry, QC, Miss Adina Ezekiel and Mr Louis Mably
for the Government of the United States of America.
LORD BINGHAM, giving the opinion of the House, said that Mr Norris was a
United Kingdom national who worked in the carbon division of the Morgan
Crucible group of companies for 29 years, retiring in 2002 after four years
as chief executive officer of the group. The parent company was English and
subsidiary companies were based in the USA.
In 1999 the US Government began to investigate allegations of price-fixing in
the carbon industry in the USA. In September 2004 a grand jury in the
Eastern District of Pennsylvania returned the indictment, containing four
counts, on which it now sought to extradite Mr Norris.
The first count alleged that Mr Norris conspired with certain other European
producers of carbon products to operate a price-fixing agreement or cartel
in a number of countries, including the USA. The agreements were said to
have been made outside the USA, but to have been given effect in the USA.
The cartel was said to have operated from at least 1989 to 2000 and the charge
was laid under US legislation familiarly known as the Sherman Act, which
declared such cartels to be illegal.
The offence was a statutory offence of strict liability. It did not require
proof of fraud, deception or dishonesty and count 1 made no such allegation.
In the English charges sheet, the charge was translated into particulars of
English offences, and it was alleged that Mr Norris conspired to “defraud
buyers of carbon products by dishonestly entering into an agreement to fix,
maintain and coordinate the price for the supply of carbon products in the
[USA]“.
Counts 2, 3 and 4 of the indictment alleged conspiracy to obstruct justice,
witness tampering and causing a person to alter, destroy, mutilate or
conceal an object with the intent to impair the object’s availability for
use in an official proceeding.
The English charges sheet asserted that Mr Norris conspired to “pervert the
course of public justice namely, the process of a criminal investigation
being conducted by a federal grand jury ... into price fixing”.
In resisting extradition on count 1, Mr Norris contended that participation in
a cartel, in the absence of aggravating conduct, was not at the material
time a criminal offence at common law or under the statute law of this
country. Accordingly, it was submitted, the requirement of the 2003 Act that
conduct should be criminal in both the requesting and requested states was
not satisfied, and Mr Norris could not be extradited under that Act.
Their Lordships said that an analysis of the case law, the legislation, and
ministerial and other official observations appeared to establish, without
more, that there had never been a common law offence of price-fixing. It
would be wrong in principle for any court now to hold that there is or was,
at the time of the events complained of in count 1, such a common law
offence.
In R v Rimmington ([2006] 1 AC 459, paragraph 33), the House of Lords said
that no one should be punished under a law unless it was sufficiently clear
and certain to enable him to know what conduct was forbidden before he did
it.
In R v Jones (Margaret) ([2007] 1 AC 136, paragraph 29), the House took the
matter further and said that it had become an important democratic principle
in this country that it was for Parliament and not the executive and not the
judges, to decide what conduct should be treated as lying so far outside the
bounds of what was acceptable in our society as to attract criminal
penalties.
Even if it had been otherwise open to the Divisional Court to decide that
price-fixing could now amount to a common law offence, those principles
would have required a contrary conclusion.
Considering the matter as at the period covered by count 1, the consistent
message which had been conveyed both by Parliament, through legislation
enacted between 1948 and 1976, and by the judiciary, through cases decided
from 1875 to 1884, was that price-fixing, indeed cartel operating, was not
of itself capable of constituting a crime.
That message was reinforced by ministerial statements, even into this century,
and in text-books. There was no reported case, indeed it would appear, no
unreported case, no text-book, no article which suggested otherwise. Further
legislation indicated that cartel operating was a matter for regulation, and
the cases indicated that it did not even constitute a civil wrong.
In those circumstances, it would appear to involve a contravention of those
principles to hold that entering into or operating a price-fixing agreement
constituted, and had during the whole, or at any rate most, of the twentieth
century, constituted a common law offence.
It was impossible to find any contemporaneous observations to support the
argument that public perceptions had changed by the end of the 1980s so as
to justify taking a contrary position.
However, if there had been a discernible shift of perception by, say, 1985, it
would have been for the legislature, and not for the courts, to decide
whether, and if so to what extent, to criminalise price-fixing.
The appeal on count 1 fell to be allowed on the elementary basis that the
conduct of which Mr Norris was accused, mere undeclared participation in a
cartel, was not at the material time, in the absence of aggravating
features, a criminal offence in this country either at common law or under
statute.
As for counts 2 to 4, their Lordships were satisfied that, if Mr Norris had
done what he was alleged to have done, with the intention of obstructing an
investigation being carried out into possible criminal conduct, in regard to
price fixing in the carbon products industry, by the duly appointed body in
the United Kingdom, he would indeed have been guilty of offences of
conspiring to obstruct justice or of obstructing justice, which could have
attracted a prison sentence of 12 months.
It followed that offences in counts 2 to 4 were extradition offences in terms
of section 137(2)(b) of the 2003 Act.
Section 87(1) of the 2003 Act required the judge to decide whether a person’s
extradition would be incompatible with his rights as scheduled to the Human
Rights Act 1998. That called for a judgment on the proportionality of an
order of extradition in all the circumstances, having regard to a
defendant’s rights under article 8 and any other relevant articles of the
European Convention on Human Rights.
The district judge had resolved that question adversely to Mr Norris, but he
had exercised his judgment on the basis that Mr Norris was to be extradited
on the main price-fixing count, not merely the subsidiary counts.
It was suggested that their Lordships should themselves consider the question,
and the issue arose as to whether the House of Lords had power to remit the
matter for reconsideration by a district judge.
The reconsideration of that question might well call for the evidence of
witnesses, which their Lordships were unaccustomed to receive; adoption of
that procedure would deprive Mr Norris of the possibility of effective
appeal; and their Lordships had no doubt that they had inherent power to
remit determination of an issue to an inferior tribunal where the interests
of justice so required. In relation to counts 2 to 4, the matter would be
remitted to a district judge to decide the question raised by section 87(1).
Solicitors: White & Case LLP; Crown Prosecution Service, Headquarters.
