The High Court of England and Wales has ruled that British businessman Ian Norris can be extradited to the United States to face trial for obstruction of justice. The allegations arise from a US Department of Justice (“DoJ”) investigation into a suspected cartel in the market for the supply of carbon and have led to protracted legal arguments. Mr Norris now appears likely to face extradition within 28 days, and the decision has raised fresh concerns about UK extradition policy and the “long arm” of US justice when it comes to cartel investigations and other forms of “white collar” crime.

Allegations of price-fixing and obstruction of justice

Mr Norris was chief executive of engineering company Morgan Crucible until retiring in 2002. The following year, federal prosecutors from the DoJ filed grand jury indictments against Mr Norris. It was alleged that during the 1990s he engaged in a price fixing conspiracy for the supply of carbon, including rigging bids and refraining from tenders. Mr Norris was also accused of obstructing the course of justice during the DoJ’s investigations by, among other things, providing false information to the grand jury, destroying documents and preparing a script containing false information for individuals facing questioning. The DoJ applied for Mr Norris to be extradited to the United States to face trial.

The Extradition Act 2003

The Extradition Act 2003 (the “Act”) came into force in January 2004 and made it easier to extradite individuals from the UK to certain territories by abolishing the need for those territories to present prima facie evidence of the alleged extradition offence. Under the Act an English court hearing an application for extradition to a “Category 2” territory (such as the United States) need only be satisfied that it has particulars of the conduct constituting the offence specified in the extradition request, the alleged conduct amounts to an extradition offence1, there are no bars to extradition such as time lapse and the proposed extradition is compatible with the person’s rights under the European Convention on Human Rights (the “ECHR”).

If the court determines that these conditions have been satisfied, the decision on whether to extradite the individual is referred to the Home Secretary. Under section 95 of the Act, the extradition to a “Category 2” territory can only be ordered if there are “specialty arrangements” in place with that territory. This means that the individual must be “dealt with” for an offence committed pre-extradition which is either the offence for which he is extradited or an extradition offence disclosed by the same facts as that offence2.

A lengthy judicial process

In June 2005, a District Judge held that the conduct in respect of which the extradition of Mr Norris was sought constituted extradition offences under the Act and that the extradition was neither time-barred nor prohibited under the ECHR. In September 2005, the Secretary of State decided to extradite Mr Norris, whose subsequent application for judicial review failed. In January 2007 the High Court dismissed his appeal against both the court order and the decision to extradite.

In March 2008 the House of Lords allowed Mr Norris’s subsequent appeal in part, rejecting the High Court’s decision that alleged price-fixing amounted to the English law offence of conspiracy to defraud and was therefore an extraditable offence. However, the High Court’s decision that the allegations of obstruction of justice equated to a conspiracy to pervert the course of justice under English law, and was therefore an extraditable offence, was upheld. In July 2008 a District Judge ruled that the extradition would not be incompatible with Mr Norris's rights under Article 8 of the ECHR and the Home Secretary again ordered Mr Norris’s extradition in September 2008.

Rejection of human rights and specialty rule arguments

Mr Norris appealed both the District Judge's ruling and the Secretary of State's decision to the High Court claiming that the extradition would be a violation of his right to respect for private and family life under Article 8 of the ECHR, and that United States sentencing practice is likely to violate the specialty rule in section 95 of the Act; accordingly he should not be extradited.

Under Article 8 of the ECHR each individual has the right to respect for his private and family life, his home and his correspondence subject to, among other things, such interference as is necessary in a democratic society for the prevention of disorder or crime. The High Court rejected Mr Norris’s claim, holding that the District Judge had applied the correct test in determining that the interference with Mr Norris’s Article 8 right constituted a proportionate response to the “very grave” extradition charges and the legitimate aim served by bilateral extradition arrangements.

Mr Norris also argued that under US Federal Sentencing Guidelines any sentence passed for the obstruction of justice charges would also punish him for the price-fixing charge (which was not an extraditable offence), thereby breaching the specialty rule. The High Court rejected this, holding that sentencing that takes into account aggravating factors, that would not themselves amount to non-extraditable offences, does not constitute being "dealt with" for a non-extraditable offence. The appeal was therefore dismissed and Mr Norris was refused the right to appeal to the House of Lords on the question of the specialty rule.

Concerns for business people?

A number of commentators repeated their concerns that Mr Norris’s case raises questions about the apparently global remit of the DoJ with regard to cartel investigations. Equally, critics have voiced their opinions that UK extradition law does not adequately protect business people who become the subject of investigations by United States authorities. Nevertheless, unless an action is brought before the European Court of Human Rights, Mr Norris has now exhausted all his avenues of appeal and will be extradited to the US within 28 days.

It should be noted further that the “cartel offence” under section 188 of the Enterprise Act 2002 made pricefixing a criminal offence; accordingly, if an individual were accused of participating in such activity after the introduction of the relevant provisions of the Act in June 2003, that would in itself constitute an extraditable offence.

Ian Norris v The Government of the USA and the Secretary of State for the Home Department [2009] EWHC 99)