Norris, R (on the application of) v Secretary of State for the Home Department

Factual and Procedural Background

The Plaintiff, a United Kingdom citizen, faces extradition proceedings to the United States of America pursuant to an order made by the Secretary of State for the Home Department on 29th September 2005. This followed a decision by the District Judge on 1st June 2005 to refer the case to the Secretary of State for a final extradition decision. The Plaintiff appeals both the District Judge's and Secretary of State's decisions under the Extradition Act 2003 and seeks judicial review of the continued designation of the United States as a designated territory under the Extradition Act 2003 (Designation of Part 2 Territories) Order 2003, specifically regarding the applicability of section 84(7) of the Act to his extradition proceedings.

The proceedings raise three connected issues: the lawfulness of the Secretary of State's March 2005 decision to maintain the United States' designation under the 2003 Order; the correctness of the District Judge's findings on extradition offences, the passage of time, and compatibility with Convention rights; and the validity of the Secretary of State's subsequent extradition decision, including alleged incompatibility with Convention rights and absence of effective speciality arrangements.

Due to external delays, the court initially heard the judicial review application and postponed the statutory appeals pending a related Divisional Court judgment. The judicial review concerned the principle of the United States' continued designation under the 2003 Order.

The alleged offences involve the Plaintiff's role as a former chief executive officer of a major carbon manufacturing company ("Company A") and its subsidiaries in the United States. The allegations include participation in a long-running criminal price-fixing cartel in the United States, obstruction of justice by tampering with witnesses and concealing documents during a federal investigation, and conspiracy to fix prices in violation of United States antitrust laws. Company A and one subsidiary pleaded guilty and paid substantial fines, but the Plaintiff was excluded from immunity and charged individually.

The Plaintiff was arrested in the United Kingdom in January 2005 following an arrest warrant issued at the United States' request. An extradition hearing was held before the District Judge, who found no bar to extradition. The case was then sent to the Secretary of State, who ordered extradition in September 2005. The Plaintiff challenged the designation of the United States as a designated territory under the 2003 Order, arguing it was unlawful and irrational given the absence of ratification of the 2003 Extradition Treaty between the United Kingdom and the United States.

Legal Issues Presented

1. Whether the Secretary of State's decision to continue designating the United States as a Part 2 territory under the Extradition Act 2003 (Designation of Part 2 Territories) Order 2003 was lawful or irrational.
2. Whether the District Judge correctly determined that the offences specified in the extradition request constituted extradition offences under the Act, that extradition was not barred by delay, and that extradition was compatible with the Plaintiff's Convention rights.
3. Whether the Secretary of State's extradition decision was lawful, compatible with Convention rights, and consistent with the absence of effective speciality arrangements between the United Kingdom and the United States.

Arguments of the Parties

Appellant's Arguments

• The continued designation of the United States under the 2003 Order is unlawful and irrational because it conflicts with the 1972 Extradition Treaty, which requires "sufficient evidence" for extradition, a protection removed by the designation and the application of section 84(7) of the 2003 Act.
• The Secretary of State failed to properly consider the incompatibility between the designation and the existing treaty obligations, and the failure of the United States to ratify the 2003 Treaty has created an asymmetry and lack of reciprocity in extradition arrangements.
• The decision to designate the United States was based on a factual misunderstanding or mistake regarding the expected timing of ratification of the 2003 Treaty by the United States, rendering the designation irrational.
• The Plaintiff relies on the principle that the Secretary of State's discretion to designate territories must be exercised in conformity with international obligations and not in breach of enforceable treaty rights.

Respondent's Arguments

• The court has jurisdiction to review the Secretary of State's decision, but the standard of review is cautious, especially given that the designation order was made pursuant to primary legislation and affirmed by both Houses of Parliament.
• The Extradition Act 2003 creates a new extradition regime that does not require reciprocity or mutuality, and the absence of reciprocity does not render the designation unlawful.
• The 1972 Treaty primarily governs relations between the United Kingdom and the United States governments and does not create personal rights enforceable by individual citizens against their own government.
• The Secretary of State's decision to maintain the designation is lawful and rational, reflecting the legislative scheme and political decisions made by Parliament, and the court should not interfere with the legislative process or the Secretary of State's discretion absent illegality or irrationality.
• The delay in ratification of the 2003 Treaty by the United States, while disappointing, does not justify judicial intervention to compel removal of the designation or to force ratification.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by acknowledging the significant changes introduced by the Extradition Act 2003, which created a new statutory framework superseding earlier legislation and treaties. The Act permits the Secretary of State to designate territories under Part 2, including the United States, subject to affirmative resolutions by both Houses of Parliament. The designation enables extradition proceedings without requiring the production of prima facie evidence as previously required under the 1972 Treaty.

The Plaintiff's challenge focused on the alleged conflict between the designation and the continuing force of the 1972 Treaty, particularly Article IX, which requires sufficient evidence for extradition. The court held that the 1972 Treaty primarily governs relations between the governments and does not create enforceable personal rights for individuals in the United Kingdom. Instead, the rights and protections of UK citizens in extradition proceedings are governed by domestic legislation, namely the 2003 Act.

The court emphasised that the Secretary of State’s power to designate is statutory and that the designation of the United States followed affirmative resolutions by Parliament. The court declined to interfere with the legislative process or the political decisions underpinning the designation. It held that the absence of reciprocity or mutuality in extradition arrangements does not render the designation unlawful or irrational.

Regarding the claim that the designation was based on a factual mistake about the timing of the 2003 Treaty’s ratification by the United States, the court found no evidence of bad faith or error sufficient to invalidate the decision. It accepted that the delay in ratification was unfortunate but not a legal basis to compel removal of the designation.

The court concluded that the Secretary of State is entitled to await the United States’ constitutional process for ratification without judicial interference. The Plaintiff’s application for judicial review was therefore dismissed.

Holding and Implications

The court’s final decision was to DISMISS the application for judicial review.

The direct effect of this decision is that the designation of the United States as a Part 2 territory under the Extradition Act 2003 (Designation of Part 2 Territories) Order 2003 remains lawful and continues to apply to the Plaintiff’s extradition proceedings. There is no immediate requirement for the Secretary of State to remove the designation despite the absence of United States ratification of the 2003 Treaty. The decision does not set a new precedent altering the statutory framework but confirms the Secretary of State’s discretion and the court’s limited role in reviewing such political and legislative decisions.