The High Court has dismissed appeals by Mr Ian Norris against an order for his extradition to the United States to face charges of conspiracy to fix prices and obstruction of the course of justice. The Court has found that dishonest price-fixing is capable of amounting to the English common law offence of conspiracy to defraud and so is an extradition offence. Further, it found that it is not relevant to this conclusion that the US price-fixing offence (under the Sherman Act) does not contain an equivalent requirement of dishonesty.
The US is seeking extradition of Ian Norris, who was until his retirement in October 2002 the Chief Executive of the Morgan Crucible engineering group. A federal grand jury filed indictments against Mr Norris in September and October 2003 alleging that he: engaged, between 1989 and 2000 in a conspiracy to fix, maintain and co-ordinate the price for the supply of carbon (by charging prices at certain levels, otherwise increasing or maintaining prices, submitting collusive, uncompetitive and rigged bids, or refraining from submitting bids), contrary to section 1 of the Sherman Act 1890.
The extradition is being sought in accordance with the Extradition Act 2003. A new US/UK extradition treaty was signed by the UK and US governments in March 2003 (the 2003 Treaty), although it has not yet been ratified by the US. The 2003 Treaty is intended to replace an earlier 1972 Treaty on extradition between the US and the UK.
The Court concluded that the common law offence of conspiracy to defraud extends to cover an agreement dishonestly to price-fix so as to cause prejudice to others.
It was argued that this would not cover "price-fixing made secret only because it was not registered under requirements of statutory competition law at the material time". However, the Court held that Mr Norris was not charged with price-fixing of that kind. Rather, he was charged with Sherman Act price-fixing (a conspiracy in restraint of trade), with the added elements of an intention financially to prejudice customers by dishonestly deceiving them, by virtue of a secret arrangement, into paying higher prices than they would otherwise have paid. The Court concluded that such conduct is capable of being regarded as dishonest, and that its perpetrators would realise its dishonesty.
The Court also rejected submissions that legislative provisions (both before and after the Enterprise Act) precluded price-fixing from being regarded as conspiracy to defraud, in the absence of positive acts of deceit or other additional elements. It held that: the requirement to register certain anti-competitive agreements under the Restrictive Trade Practices Act 1956 and the Restrictive Trade Practices Act 1976 did not constitute a bar on criminal proceedings for conspiracy to defraud or imply that something more than secrecy was required for a price-fixing agreement to become vulnerable to criminal fraud proceedings. While the Acts made it clear that they did not themselves create such a criminal offence, there was no limitation on or restriction of the use of the common law offence.
The criminal cartel offence introduced under the Enterprise Act is, in effect, a statutory criminal conspiracy to defraud, which, although corresponding to the common law conspiracy to defraud, is highly specific as to subject matter, who can be prosecuted and its penalty. Mr. Norris is seeking leave to appeal to the House of Lords.