Norris v. United States of America et al., (2008) 386 N.R. 132 (HL)

• Case Date: March 12, 2008
• Jurisdiction: Canada (Federal)
• Citations: (2008), 386 N.R. 132 (HL)

Norris v. U.S.A. (2008), 386 N.R. 132 (HL)

MLB headnote and full text

Temp. Cite: [2009] N.R. TBEd. JA.049

Norris (appellant) v. Government of the United States of America and others (respondent) (Criminal Appeal from Her Majesty's High Court of Justice)

([2008] UKHL 16)

Indexed As: Norris v. United States of America et al.

House of Lords

London, England

Lord Bingham of Cornhill, Lord Rodger of Earlsferry, Lord Carswell, Lord Brown of Eaton-under-Heywood and Lord Neuberger of Abbotsbury

March 12, 2008.

Summary:

The United States sought to extradite Norris, a national of the United Kingdom, to stand trial in Pennsylvania on four counts. Court 1 alleged a conspiracy to operate a price-fixing agreement or cartel in the United States ("Sherman Act" offence). Counts 2, 3 and 4 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 A district judge sent the case to the Home Secretary for a decision on whether Norris should be extradited ([2005] UKCLR 1205). The Home Secretary ordered that he should be extradited. Norris appealed.

The Queen's Bench Divisional Court, in a decision reported [2007] EWHC 71 (Admin); [2007] 1 W.L.R. 1730) dismissed the appeal. Norris appealed again.

The House of Lords allowed Norris' appeal respecting count 1, because at the time of the alleged offence mere price-fixing (i.e., the making and implementation of a price-fixing agreement without aggravating features) was not a criminal offence in the United Kingdom either at common law or under statute. The House held that while Counts 2 to 4 were extraditable offences, the matter should be remitted to the district judge to consider whether extradition would be incompatible with Norris's Convention rights as required by s. 87(1) of the Extradition Act, 2003.

Extradition - Topic 2.1

General - Extradition legislation - Interpretation - The House of Lords discussed two approaches to the double criminality principle: "... It is possible to define the crimes for which extradition is to be sought and ordered (extradition crimes) in terms either of conduct or of the elements of the foreign offence. That is the fundamental choice. The court can be required to make the comparison and to look for the necessary correspondence either between the offence abroad (for which the accused's extradition is sought) and an offence here, or between the conduct alleged against the accused abroad and an offence here. For convenience these may be called respectively the offence test and the conduct test. It need hardly be pointed out that if the offence test is adopted the requested state will invariably have to examine the legal ingredients of the foreign offence to ensure that there is no mismatch between it and the supposedly corresponding domestic offence. If, however, the conduct test is adopted, it will be necessary to decide, as a subsidiary question, where, within the documents emanating from the requesting state, the description of the relevant conduct is to be found" - The House interpreted the double criminality provision (s. 137) of the Extradition Act 2003, taking the view that a wide construction should prevail and, therefore, the conduct test should be applied - See paragraphs 63 to 91.

Extradition - Topic 19

General - Bars to extradition - Delay - [See second Extradition - Topic 605 ].

Extradition - Topic 23

General - Bars to extradition - Charter or other human rights breaches - [See second Extradition - Topic 605 ].

Extradition - Topic 605

Extraditable offences - "Extradition crime" defined - Norris, a national of the United Kingdom, worked in the United Kingdom in the carbon division of a parent corporation which had two subsidiaries based in Pennsylvania, United States - The subsidiaries were investigated for price-fixing in the carbon industry in the United States - The United States sought to extradite Norris on four counts - Court 1 alleged a conspiracy to operate a price-fixing agreement or cartel in the United States ("Sherman Act" offence) - Norris resisted extradition on this count, arguing that participation in a cartel, in the absence of aggravating conduct, was not at the material time (1989-2000) a criminal offence at common law or under the statute law of the United Kingdom - Thus the requirement in the Extradition Act that the conduct be criminally punishable in both the requesting and requested states was not satisfied and he could not be extradited - The House of Lords held that mere price-fixing in the absence of aggravating features such as fraud, misrepresentation, violence, intimidation or inducement of a breach of contract was not an offence in the United Kingdom either at common law or under statute - Accordingly, Norris' appeal in relation to Count 1 was allowed - See paragraphs 6 to 62.

Extradition - Topic 605

Extraditable offences - "Extradition crime" defined - Norris, a national of the United Kingdom, worked in the United Kingdom in the carbon division of a parent corporation which had two subsidiaries based in Pennsylvania, United States - He retired in 2002 - Beginning in 1999, the subsidiaries were investigated for price-fixing in the carbon industry in the United States and in 2004 a grand jury returned an indictment - Counts 2, 3 and 4 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 events taking place in 1999 and 2001 - In 2004 the United States sought to extradite Norris - Norris argued that these were not extradition offences since the conduct would not have constituted an offence under English law if it had occurred in England - The House of Lords held that Counts 2 to 4 were extradition offences under s. 137 of the Extradition Act (2003) - The court found that if Norris had done in England what he was alleged to have done in counts 2 to 4, with the intention of obstructing an investigation being carried out into possible criminal conduct, in regard to fixing prices 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 sentence of twelve months' imprisonment - The court rejected an argument that his extradition was barred under s. 82 of the Act because of passage of time - The court, however, remitted the matter to the district judge to consider whether extradition would be incompatible with Norris's Convention rights as required by s. 87(1) of the Act - See paragraphs 92 to 111.

Extradition - Topic 3348

Surrender to demanding country - Conditions precedent - Similarity of crimes between jurisdictions (rule of double criminality) - The United States sought to extradite Norris, a United Kingdom national, alleging a conspiracy to operate a price-fixing agreement or cartel in the United States ("Sherman Act" offence - Count 1) - The House of Lords held that Norris could not be extradited on this count because mere price-fixing without aggravating features was not a criminal offence in the United Kingdom - Although the issue of double criminality (Extradition Act 2003, s. 137) did not arise given the House's conclusion, the House discussed whether, if price fixing had been capable of constituting the English offence of conspiracy to defraud, of which dishonesty was an essential ingredient, the absence of such an ingredient in the United States offence of price fixing prevented the alleged conduct of Norris from being an extradition offence - The House held that in determining double criminality under s. 137 the "conduct test" should be applied (i.e., the conduct relevant in determining double criminality was that described in the documents constituting the request, ignoring the mere narrative background, but taking account of such allegations as were relevant to the description of the corresponding United Kingdom offence) - The House opined that had Norris's appeal failed on the first issue, the extradition order on Count 1 would have stood - See paragraphs 63 to 91.

Extradition - Topic 3348

Surrender to demanding country - Conditions precedent - Similarity of crimes between jurisdictions (rule of double criminality) - [See Extradition - Topic 2.1 and second Extradition - Topic 605 ].

Trade Regulation - Topic 601

Competition - Price fixing agreements - General - The House of Lords discussed whether a price-fixing agreement without aggravating features was indictable in the United Kingdom at common law - See paragraphs 7 to 23 - The House stated that: "The common law recognised that an agreement in restraint of trade might be unreasonable in the public interest, and in such cases the agreement would be held to be void and unenforceable. But unless there were aggravating features such as fraud, misrepresentation, violence, intimidation or inducement of a breach of contract, such agreements were not actionable or indictable. In the course of the authorities a number of different reasons were given for this conclusion." - See paragraph 17.

Trade Regulation - Topic 601

Competition - Price fixing agreements - General - The House of Lords discussed whether a price-fixing agreement without aggravating features was indictable in the United Kingdom under legislation - The court concluded that statutory criminalisation of cartels was first introduced by the Enterprise Act 2002 - Prior to that time mere undeclared participation in a cartel, in the absence of aggravating feature, was not a criminal offence by statute - See paragraphs 24 to 62.

Cases Noticed:

Nordenfelt v. Maxim Nordenfelt Guns and Ammunition Co., [1894] A.C. 535 (H.L.), refd to. [para. 8].

Jones v. North (1875), L.R. 19 Eq. 426, refd to. [para. 10].

Mogul Steamship Co. v. McGregor, Gow & Co. (1888), 21 Q.B.D 544, refd to. [para. 11].

Mogul Steamship Co. v. McGregor, Gow & Co. (1889), 23 Q.B.D 598 (C.A.), refd to. [para. 12].

Mogul Steamship Co. v. McGregor, Gow & Co., [1892] A.C. 25 (H.L.), refd to. [para. 13].

Commonwealth of Australia (Attorney General) v. Adelaide Steamship Co., [1913] A.C. 781 (P.C.), refd to. [para. 14].

North Western Salt Co. v. Electrolytic Alkali Co., [1913] 3 K.B. 422 (C.A.), refd to. [para. 15].

North Western Salt Co. v. Electrolytic Alkali Co., [1914] A.C. 461 (C.A.), refd to. [para. 15].

Rawlings v. General Trading Co., [1921] 1 K.B. 635 (C.A.), refd to. [para. 16].

Rawlings v. General Trading Co., [1920] 3 K.B. 30, refd to. [para. 16].

British Airways Board v. Laker Airways Ltd., [1985] A.C. 58 (H.L.), refd to. [para. 18].

British Airways Board v. Laker Airways Ltd., [1984] Q.B. 142 (C.A.), refd to. [para. 18].

R. v. De Berenger (1814), 3 M. & S. 67 (K.B.), refd to. [para. 19].

R. v. Lewis (1869), 11 Cox C.C. 404, refd to. [para. 19].

Scott v. Brown, Doering, McNab & Co., [1892] 2 Q.B. 724, refd to. [para. 19].

OBG Ltd. et al. v. Allan et al., [2008] 1 A.C. 1; 369 N.R. 66; [2007] UKHL 21, refd to. [para. 21].

Pepper v. Hart, [1993] A.C. 593 (H.L.), refd to. [para. 45].

R. v. GG plc et al., [2008] N.R. Uned. 171; [2008] UKHL 17, refd to. [para. 49].

R. v. Rimmington, [2005] N.R. Uned. 179; [2006] 1 A.C. 459 (H.L.), refd to. [para. 53].

R. v. Jones, [2007] 1 A.C. 136; 349 N.R. 201 (H.L.), refd to. [para. 54].

Hashman and Harrup v. United Kingdom (1999), 30 E.H.R.R. 241, refd to. [para. 57].

SW v. United Kingdom (1995), 21 E.H.R.R. 363 (Strasbourg Ct.), refd to. [para. 58].

Nielsen, Re, [1984] A.C. 606 (H.L.), refd to. [para. 67].

United States of America v. McCaffery, [1984] 1 W.L.R. 867 (H.L.), refd to. [para. 67].

Canada v. Aronson, [1990] 1 A.C. 579 (H.L.), refd to. [para. 69].

R. v. United Kingdom (Secretary of State for the Home Department); Ex parte Hill, [1999] Q.B. 886 (Div. Ct.), refd to. [para. 73].

R. v. Governor of Belmarsh Prison; Ex parte Gillilgan, [2001] 1 A.C. 84 (H.L.), refd to. [para. 74].

Office of the King's Prosecutor, Brussels v. Armas et al., [2005] N.R. Uned. 170; [2006] 2 A.C. 1 (H.L.), refd to. [para. 79].

R. (Bermingham et al.) v. Director of the Serious Fraud Office, [2007] Q.B. 727, refd to. [para. 81].

Dabas v. Madrid, [2007] N.R. Uned. 100; [2007] 2 A.C. 31 (H.L.), refd to. [para. 83].

Edwards v. United States of America, [2007] E.W.H.C. 1877 (Admin.); [2007] All E.R. (D) 501 (Jul) (Div. Ct.), refd to. [para. 84].

United States of America v. McVey, [1992] 3 S.C.R. 475; 144 N.R. 81; 16 B.C.A.C. 241; 28 W.A.C. 241, refd to. [para. 86].

Ismail, Re, [1999] 1 A.C. 320; 241 N.R. 367 (H.L.), refd to. [para. 86].

R. v. United Kingdom (Secretary of State for the Home Department); Ex parte Norgren, [2000] Q.B. 817 (Div. Ct.), refd to. [para. 93].

Al-Fawwaz et al., Re, [2002] 1 A.C. 556; 282 N.R. 139 (H.L.), refd to. [para. 95].

Collins, Re (No. 3) (1905), 10 C.C.C. 80 (B.C.S.C.), refd to. [para. 96].

Germany (Federal Republic) et al. v. Schreiber (2006), 207 O.A.C. 306; 206 C.C.C.(3d) 339 (C.A.), refd to. [para. 97].

Riley v. Commonwealth of Australia (1985), 159 C.L.R. 1 (Aust.), refd to. [para. 98].

Kakis v. Republic of Cyprus, [1978] 1 W.L.R. 779, refd to. [para. 104].

R. v. Governor of Pentonville Prison; Ex parte Narang, [1978] A.C. 247, refd to. [para. 104].

Wellington v. Governor of Belmarsh Prison, [2004] E.W.H.C. 418 (Admin.), refd to. [para. 107].

Jenkins v. United States of America; Benbow v. United States of America, [2005] E.W.H.C. 1051 (Admin.), refd to. [para. 107].

R. (United States of America) v. Bow Street Magistrates' Court, [2006] E.W.H.C. 2256 (Admin.); [2007] 1 W.L.R. 1157 (Div. Ct.), refd to. [para. 107].

Statutes Noticed:

Competition Act, 2000 (U.K.), generally [para. 37].

Enterprise Act, 2002 (U.K.), generally [para. 38].

Extradition Act, 2003 (U.K.), generally [para. 6]; sect. 82 [para. 103]; sect. 87(1) [para. 110]; sect. 137 [para. 75].

Restrictive Trade Practices Act, 1976 (U.K.), generally [para. 33].

Authors and Works Noticed:

Holdsworth, William Searle, A History of English Law (2nd Ed. 1937), vol. 8, pp. 56 to 62 [para. 7].

Holdsworth, William Searle, A History of English Law (3rd Ed. 1945), vol. 4, pp. 340 to 362 [para. 7].

Lever, Jeremy, and Pike, John, Cartel Agreements, Criminal Conspiracy and the Statutory "Cartel Offence", [2005] E.C.L.R. 90, p. 95 [para. 59].

United Kingdom, Monopolies Commission, Cairns Committee Report (Cmd. 9504), Collective Discrimination: A Report on Exclusive Dealing, Collective Boycotts, Aggregated Rebates and Other Discriminatory Trade Practices (1955), paras. 242 to 247, 255 to 259 [para. 25].

United Kingdom, Department of Trade and Industry, A World Class Competition Regime (White Paper) (Cm. 5233), generally [para. 38].

United Kingdom, Treasury and Department of Trade and Industry, Productivity in the UK: Enterprise and Productivity Challenge (2001), para. 3.23 [para. 38].

Wilberforce, R.O., Campbell, Alan, and Elles, Neil P.M., The Law of Restrictive Trade Practices and Monopolies (2nd Ed. 1966), p. 148 [para. 29].

Counsel:

Jonathan Sumption, Q.C., Richard Gordon, Q.C., and Martin Chamberlain (Instructed by White & Case LLP), for the appellant;

David Perry, Q.C., Adina Ezekiel and Louis Mably (Instructed by Crown Prosecution Service), for the respondent;

Tim Owen, Q.C., Duncan Penny and Kieron Beal (Instructed by Dechert LLP), for the intervenors.

Agents:

[Not disclosed.]

This appeal was heard on January 24, 28 and 29, 2008, by the Committee (Lord Bingham of Cornhill, Lord Rodger of Earlsferry, Lord Carswell, Lord Brown of Eaton-under-Heywood and Lord Neuberger of Abbotsbury) of the House of Lords, who delivered the following decision for the House on March 12, 2008.