Case No: C0-4530-97
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION (DIVISIONAL COURT)
In the matter of an application for judicial review
Royal Courts of Justice
Strand, London, WC2A 2LL

Friday,  18 February 2000

B e f o r e :

LORD CHIEF JUSTICE OF ENGLAND AND WALES
(LORD BINGHAM OF CORNHILL)

Mr JUSTICE KLEVAN

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	r.		
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	THE SECRETARY OF STATE FOR THE HOME DEPARTMENT, EX PARTE CHRISTIAN NORGREN		

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040,  Fax No:  0171 831 8838
Official Shorthand Writers to the Court)
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Clare Montgomery QC & James Lewis (instructed by Kingsley Napley)
for the applicant
James Turner QC (instructed by  the Treasury Solicitor) for the Secretary of State
Paul Garlick QC (instructed by the Crown Prosecution Service) for the 
United States Government

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Judgment

LORD CHIEF JUSTICE OF ENGLAND AND WALES:
	 The applicant Mr Christian Norgren, seeks judicial review of an order to proceed made by the Home Secretary on 30 September 1997 under paragraph 4(2) of Schedule 1 to the Extradition Act 1989.  

	The applicant is a Swedish citizen.  In 1989 he was a director of Asea Brown Boveri Ltd, a multinational corporation.  In his capacity as director he became aware of a proposed merger between an Asea Brown Boveri subsidiary and a Delaware corporation, Combustion Engineering Inc.  It is alleged that with that knowledge, and in expectation that the merger would cause a rise in the value of the stock in Combustion Engineering, the applicant procured the purchase of Combustion Engineering stock on his own behalf on the New York and Pacific Stock Exchanges.  

	These purchases became known to the Securities and Exchange Commission which made a claim against the applicant, settled in January 1991 by a payment of US $3,614,500 by the applicant.  On 25 May 1994 a federal grand jury sitting in the Southern District of New York issued an indictment against the applicant charging him with committing “insider trading” securities frauds, and other offences.  The applicant was not then physically present in the United States, and in early 1995 the United States sought his extradition from Germany.  This request was ultimately denied because the extradition treaty between the United States and Germany required that the offence charged should be a crime in both countries, and insider dealing did not become an offence in Germany until 1994.

	Pursuant to an application made by the United States to the United Kingdom, the applicant was arrested on a provisional warrant on 24 June 1997.  He was remanded in custody and then released on conditional bail.  In August 1997 the applicant was supplied with copies of the formal extradition request made by the United States and received (after the applicant’s arrest) by the United Kingdom, with all the supporting documents.

	On 20 August 1997 solicitors then as now representing the applicant wrote at length to the Home Office setting out reasons why the conduct charged against the applicant was neither an extradition crime nor an extraditable offence and submitting that the Home Secretary had no power to issue an order to proceed.  On 26 August 1997 the solicitors wrote to the Home Office again, informing them of the settlement by the applicant of the claim made against him by the Securities and Exchange Commission and of the United States’ unsuccessful attempt to extradite the applicant from Germany.

	On 4 September 1997 the Home Secretary indicated that he would not issue an order to proceed, and the Bow Street Magistrates’ Court was so informed on the following day.  The applicant was discharged.  On 11 September 1997 the applicant’s solicitors wrote to the Home Office again, referring to the decision not to issue an order to proceed and adding:

“In the unlikely event of the US Government renewing its application for Mr Norgren’s extradition, we would wish to make further representations to the Secretary of State before any decision were made by him.  Please confirm that in those circumstances you would notify us of any such renewed application in sufficient time to permit us to make such representations.”

This letter was not acknowledged and the confirmation sought accordingly not given.  

	Unknown to the applicant, the United Kingdom received a further request from the United States with further supporting material.  In the light of that material, and having taken advice, the Secretary of State, without reference to the applicant or his solicitors, issued his order to proceed on 30 September 1997.  This recited that the applicant 

“is accused of conduct within the jurisdiction of the United States of America, which had it occurred in the United Kingdom, would have constituted offences contrary to sub-sections 1(2), 1(4), 1(6) and section 8 of the Company Securities (Insider Dealing) Act 1985”.

	On receipt of that order, the Bow Street Magistrate on 24 October 1997 issued a warrant for the arrest of the applicant, backed for bail.  The warrant described the applicant as 

“an individual who was knowingly connected with a company, namely Asea Brown Boveri Ltd (“ABB”), [who] dealt on a recognised stock exchange in securities of another company, namely Combustion Engineering Inc. (“Combustion Engineering”) when he had information which (a) he held by virtue of being connected with ABB …”.

Succeeding paragraphs of the warrant described the applicant as “an individual who was then prohibited by the provisions of section 1 of the Company Securities (Insider Dealing) Act 1985 from dealing on a recognised stock exchange …”.  On 5 November 1997 the applicant’s solicitors were informed of the issue of an order to proceed on 30 September.  The applicant was then out of this country on business, and the warrant had not been executed.  He has remained out of the country and the warrant has still not been executed.  

	The applicant applied for leave to move for judicial review and this was granted on the papers in January 1998.  Meanwhile, the applicant had been arrested in Switzerland pursuant to a further United States request for his extradition.  On 12 March 1998 an interlocutory order was made here, in effect staying the present application until the outcome of the Swiss extradition proceedings was known.  This order was challenged in this court, and on 3 April 1998 the order was varied so as to permit the application to proceed

“if Mr Norgren is granted bail in Switzerland and if the terms of that bail entitle him to leave Switzerland and return to this jurisdiction or if he is discharged from custody unconditionally or if the application fails”.

	In December 1998 the applicant was discharged from custody in Switzerland on the refusal of the American extradition request, and the present application has been revived.  

The Home Secretary’s preliminary objection

The Home Secretary raises the preliminary objection that these proceedings are academic.  He points out that proceedings pursuant to the Home Secretary’s order to proceed and the magistrate’s warrant are stalled:  the applicant has remained out of the country, and shows no sign of returning; the warrant has not been executed and there is no realistic prospect of its being executed.  Therefore, he argues, this application can serve no useful purpose.

	The Home Secretary’s frustration is understandable.  If the present application is wholly successful, the order to proceed will be quashed; but if the application is unsuccessful there will still be no prospect of the order to proceed leading to a substantive hearing.  So, from his point of view, the request of the United States government is likely to be thwarted in either event.  

	This does not, however, in our judgment render the proceedings academic in the sense defined by the House of Lords in Sun Life Assurance Co of Canada v. Jervis [1944] AC 111 at 113-114 and Ainsbury v. Millington [1987] 1 WLR 379 at 381.  The United States government has not withdrawn its extradition request.  The applicant challenges the lawfulness of the Home Secretary’s order to proceed.  The Home Secretary asserts that that order is lawful.  It is of obvious importance to the applicant to be free to return to the United Kingdom without risk of arrest, and obviously advantageous to him to learn (if he can) whether he can return with impunity or not.  He is understandably keen to thwart the United States government’s request if he lawfully can.  The present proceedings cannot in our view be regarded as futile or devoid of practical consequence.

The Home Secretary has not sought to strike out these proceedings as an abuse of the process, and would face obvious difficulties were he to do so.  

In our judgment this objection must fail.  

Procedural unfairness

	The applicant complains that the Home Secretary was guilty of procedural impropriety and unfairness in denying him an opportunity which he was entitled to expect to make further representations before the Home Secretary made an order to proceed.  In making this submission the applicant relies in particular on the detailed representations which were made on 20 and 26 August, on the Home Secretary’s initial decision (communicated to the applicant and the magistrates’ court) not to issue an order to proceed and on the applicant’s solicitors’ letter of 11 September expressing the wish to make further representations, if the United States government renewed its extradition request, before the Home Secretary made any decision.  

	The statutory scheme makes no provision for representations to be made by the object of an extradition request before an order to proceed is issued.  R. v. Secretary of State for the Home Department, ex parte McQuire (1995) 10 Admin. LR 534 at 537 highlights the general undesirability of prolonged representations and counter-representations at this stage.  There was, so far as we know, no contact between the Home Secretary and the applicant or his solicitors before the provisional warrant was issued and executed, and such contact would not be normal.  After the arrest of the applicant and service of the relevant documents upon him, the Home Secretary did not invite representations.  Such representations were volunteered on behalf of the applicant and were considered.  The applicant’s solicitors shrewdly sought reassurance that the Home Secretary would grant them an opportunity to make further representations if a renewed request were made by the United States government, but no reassurance was forthcoming and the situation was not one in which silence could be taken to indicate assent.  It is not standard practice in an ordinary domestic context to warn a person of his impending arrest.  Where the extradition of the party in question is sought on the grounds that he is a fugitive criminal there are obvious practical reasons for not giving such notice.  The Home Secretary never led the applicant or his solicitors to think that an opportunity to make further representations would be granted.  They were entitled to hope that such an opportunity would be granted, but not to expect it.  In our view the Home Secretary was not guilty of procedural unfairness in acting as he did.

The lawfulness of the Home Secretary’s order to proceed

	In a compelling and lucid submission Miss Clare Montgomery QC for the applicant argues that an order to proceed may only be lawfully made by the Home Secretary where the conduct of which a person whose extradition is sought is accused constitutes an extradition crime; that the accusation of what is in law an extradition crime is a jurisdictional fact, the establishment of which alone gives the Home Secretary authority to make the order; that it is for the Home Secretary to decide whether the conduct of which the person is accused is an extradition crime; that this is an issue to be decided by the Home Secretary, and one which the magistrate is not permitted to decide following the making of an order to proceed; that the conduct of which the applicant is accused is not in law an extradition crime; and that it is accordingly appropriate to apply to the court to quash the Home Secretary’s order to proceed at this stage. 

	Mr James Turner QC, on behalf of the Home Secretary, takes issue with almost every step of this argument.  The Home Secretary must, he accepts, form the bona fide opinion that the conduct of which the person whose extradition is sought is accused constitutes an extradition crime.  But the Home Secretary’s role is not that of legal arbiter.  Provided he is satisfied that the conduct appears to constitute an extradition crime he is entitled to make an order to proceed.  It is for the magistrate, following the arrest of the person whose extradition is sought, to decide whether there is prima facie evidence that the subject of the request did what he is said to have done and, if so, whether such conduct (if done in England) would constitute an extraditable offence within the relevant statute or treaty.  The Home Secretary submits that those tests are here satisfied.  But he contends that this is a matter for decision in the first instance by the magistrate, whose decision is open to legal challenge by either party, and not by this court in advance of any decision by the magistrate.  He highlights the danger of satellite litigation if issues of this kind are litigated, perhaps to the House of Lords, before any effective hearing in the magistrates’ court has even begun.  

	In choosing between these submissions we must first remind ourselves of the relevant provisions of statute and subordinate legislation.  Section 1(3) of the Extradition Act 1989 provides:

“Where an Order in Council under section 2 of the Extradition Act 1870 is in force in relation to a foreign state, Schedule 1 to this Act (the provisions of which derive from that Act and certain associated enactments) shall have effect in relation to that state, but subject to the limitations, restrictions, conditions, exceptions and qualifications, if any, contained in the Order.”

An Order in Council under section 2 of the 1870 Act is in force in relation to the United States.  It is the United States of America (Extradition) Order 1976 (SI 1976 No. 2144).  It came into force in January 1977, well before the events with which this case is concerned.

	For purposes of this case it is accordingly Schedule 1 to the 1989 Act and not Part III of that Act which has effect.  Paragraph 3 of Schedule 1 provides:

“Where this Schedule has effect in the case of any foreign state, every fugitive criminal of that state who is in or suspected of being in any part of Her Majesty’s dominions, or that part which is specified in the Order in Council relating to that state (as the case may be), shall be liable to be apprehended and surrendered in manner provided by this Schedule, whether the crime in respect of which the surrender is sought was committed before or after the date of the Order, and whether there is or is not any concurrent jurisdiction in any court of Her Majesty’s dominions over that crime.”

The expression “fugitive criminal” used in paragraph 3 is defined in paragraph 20 to mean

“any person accused or convicted of an extradition crime committed within the jurisdiction of any foreign state who is in or is suspected of being in some part of Her Majesty’s dominions”.  

In the same paragraph it is provided that “extradition crime”

“in relation to any foreign state, is to be construed by reference to the Order in Council under section 2 of the Extradition Act 1870 applying to that state as it had effect immediately before the coming into force of this Act and to any amendments thereafter made to that Order”.

	It seems plain that an Order made under section 2 of the 1870 Act must be subject to and governed by the provisions of that Act.  Paragraph 4 of Schedule 1 to the 1989 Act provides:

“(1)	A requisition for the surrender of a fugitive criminal of any foreign state, who is in or suspected of being in the United Kingdom, shall be made to the Secretary of State by some person recognised by the Secretary of State as a diplomatic or consular representative of that foreign state.  

(2)	The Secretary of State may by order signify to a metropolitan magistrate that such a requisition has been made, and require him to issue his warrant for the apprehension of the fugitive criminal.  

(3)	If the Secretary of State is of opinion that the offence is one of a political character, he may, if he thinks fit, refuse to send any such order as is mentioned in sub-paragraph (2) above, and may also at any time order a fugitive criminal accused or convicted of such offence to be discharged from custody.”

There is an obvious contrast between the language of paragraph 4(2) of Schedule 1 and section 7(4) in Part III of the Act.  Paragraph 6 of Schedule 1 provides:

“(1)	When a fugitive criminal is brought before the metropolitan magistrate, the metropolitan magistrate shall hear the case in the same manner, and have the same jurisdiction and powers, as near as may be, as if the prisoner were brought before him charged with an indictable offence committed in England or Wales.  

(2)	The metropolitan magistrate shall receive any evidence which may be tendered to show that the crime of which the prisoner is accused or alleged to have been convicted is an offence of a political character or is not an extradition crime. “

Paragraph 7 deals with the committal or discharge of a prisoner following a hearing:

“(1)	In the case of a fugitive criminal accused of an extradition crime, if the foreign warrant authorising the arrest of such criminal is duly authenticated, and such evidence is produced as (subject to the provisions of this Schedule) would, according to the law of England and Wales, justify the committal for trial of the prisoner if the crime of which he is accused had been committed in England or Wales, the metropolitan magistrate shall commit him to prison, but otherwise shall order him to be discharged.

(2)	In the case of a fugitive criminal alleged to have been convicted of an extradition crime, if such evidence is produced as (subject to the provisions of this Schedule) would, according to the law of England and Wales, prove that the prisoner was convicted of such crime, the metropolitan magistrate shall commit him to prison, but otherwise shall order him to be discharged.  

(3)	If he commits such criminal to prison, he shall commit him there to await the warrant of the Secretary of State for his surrender, and shall forthwith send to the Secretary of State a certificate of the committal, and such report upon the case as he may think fit.”

The Criminal Justice and Public Order Act 1994 substituted in (1), for the words from “justify the committal” to “committed in England or Wales” the words “make a case requiring an answer by the prisoner if the proceedings were for the trial in England and Wales of an information for the crime", but neither party attaches significance to this change of language in the argument before us.  

The 1870 Act provided, in section 2, 

“Where an arrangement has been made with any foreign state with respect to the surrender to such state of any fugitive criminals, Her Majesty may, by Order in Council, direct that this Act shall apply in the case of such foreign state …”.

Section 5 provided:

“When an order applying this Act in the case of any foreign state has been published in the London Gazette, this Act … shall, so long as the order remains in force, but subject to the limitations, restrictions, conditions, exceptions, and qualifications, if any, contained in the order, apply in the case of such foreign state …”.

Reference must be made to sections 9 and 10 of the Act, from which paragraphs 6 and 7(1) of Schedule 1 to the 1989 Act are taken:

“9.	When a fugitive criminal is brought before the police magistrate, the police magistrate shall hear the case in the same manner, and have the same jurisdiction and powers, as near as may be, as if the prisoner were brought before him charged with an indictable offence committed in England.  

	The police magistrate shall receive any evidence which may be tended to show that the crime of which the prisoner is accused or alleged to have been convicted is an offence of a political character or is not an extradition crime.

10.	In the case of a fugitive criminal accused of an extradition crime, if the foreign warrant authorising the arrest of such criminal is duly authenticated, and such evidence is produced as (subject to the provisions of this Act), would, according to the law of England, justify the committal for trial of the prisoner if the crime of which he is accused had been committed in England, the police magistrate shall commit him to prison, but otherwise shall order him to be discharged. …”.

In section 26 of the 1870 Act the term “extradition crime” is defined to mean

“a crime which, if committed in England or within English jurisdiction, would be one of the crimes described in the first schedule to this Act.”

	The first schedule to the Act set out a list of crimes which were “to be construed according to the law existing in England, … at the date of the alleged crime, whether by common law or by statute made before or after the passing of this Act”.  No reliance has been placed in argument before us on any crime listed in the first schedule as originally enacted.  It is however pertinent to note that by section 38(4) of the 1989 Act any offence under the Company Securities (Insider Dealing) Act 1985 was deemed to be included in the list of extradition crimes contained in Schedule 1 to the 1870 Act with effect from a date immediately before the coming into force of the 1989 Act which came into force in September 1989, and was thus in force at all times relevant to this application.  

	The 1976 Order in Council, already referred to, gives effect to a treaty concluded between the United Kingdom and the United States in June 1972.  It is provided that the Extradition Acts 1870 to 1935, as amended or extended by any subsequent enactment, shall apply in the case of the United States in accordance with that treaty.  Relevant for present purposes is Article III of the Treaty which provides:

“(1)	Extradition shall be granted for an act or omission the facts of which disclose an offence within any of the descriptions listed in the Schedule annexed to this Treaty, which is an integral part of the Treaty, or any other offence, if:

(a)	the offence is punishable under the laws of both Parties by imprisonment or other form of detention for more than one year or by the death penalty;

(b)	the offence is extraditable under the relevant law, being the law of the United Kingdom or other territory to which this Treaty applies by virtue of sub-paragraph (1)(a) of Article II; and

(c)	the offence constitutes a felony under the law of the United States of America.”

Scheduled to this Treaty is a list of offences:  the only offence to which our attention has been drawn is 

“20.  Fraud or false statements by company directors and other officers”.

	These and related provisions have been the subject of consideration in many decided cases.  Particularly illuminating is the judgment of the Divisional Court, given by Robert Goff LJ, in R. v. Chief Metropolitan Magistrate, ex parte the Government of Denmark (1984) 79 Cr. App. R. 1.  The central issue in that case was whether the magistrate could properly receive evidence of foreign law and whether it was appropriate for him to consider whether offences in English and any foreign law were substantially similar in concept.  In the course of the judgment, at page 11, the court said:

“Now it is important to observe that the legal proceedings in this country depend entirely upon the Secretary of State issuing his order to proceed. … The Secretary of State has a discretion whether to issue an order to proceed, and the question whether the offence is of a political character is only one of the matters which he may take into account in considering the exercise of his discretion.  But since, as we have already observed, the Act which confers his powers upon the Secretary of State only applies subject to the limitations, etc, if any, contained in the Order in Council (which incorporates the Treaty), he can only act within that framework.  Accordingly he has to consider, before issuing an order to proceed, whether the requisition and the documents presented with it comply with the terms of the Treaty.  If he satisfies himself that this is so, then (subject to any question of the offence being of a political character) he issues his order to proceed.”

Having considered the issue of a warrant, the court continued (at page 11):

“So also with the hearing before the magistrate, if the warrant for the fugitive’s apprehension is issued and he is apprehended.  The same English procedure is still continuing, launched pursuant to the order to proceed.  The evidence which the magistrate shall receive is, in the case of an accused person, that which may be tendered to show that the crime of which the prisoner is (1) an offence of a political character, or (2) is not an extradition crime.  The definition of extradition crime in section 26 is “a crime which, if committed in England or within English jurisdiction, would be one of the crimes described in the first schedule to the Act”, which are of course all offences by English law.  In our judgment, it is plain from this definition that the word “crime” in it must refer to conduct of the fugitive which is complained of, and cannot relate to the foreign offence.  So all that the magistrate is concerned with (apart from the question of a political offence) is evidence tended to show that the conduct complained of is not an offence by English law.  In practice, the relevant offence or offences are those specified in the order to proceed.  He is not authorised to receive any evidence of foreign law, unless such evidence is relevant to the question whether the offence is one of a political character.  Exactly the same construction must, we consider, be placed on the words of the opening paragraph of section 10, which we have already quoted.  Under that paragraph, in the case of an accused person, apart from considering whether the foreign warrant is duly authenticated, the magistrate has only to consider whether the evidence would justify the committal for trial of the prisoner if the crime of which he is accused, i.e. the conduct complained of, had been committed in England.  There is, in our judgment, no warrant in section 10 of the Act for the magistrate to consider any question of foreign law.  Indeed if the magistrate decides to commit the fugitive to prison, the form of committal warrant authorised by the Act refers only to the fugitive having been accused of the commission of crime by recital of the crime or crimes specified by the Secretary of State in his order to proceed.  

If, however, the fugitive is committed to prison, the Act contemplates that he may seek to challenge that warrant by habeas corpus proceedings.  In such proceedings, the prisoner may challenge the lawfulness of his committal to prison on any ground open to him.  Those grounds are not restricted to matters arising out of the proceedings before the magistrate.  For the lawfulness of his committal to prison depends not only upon the magistrate having acted lawfully, but also upon the Secretary of State having done so in issuing his order to proceed.  Accordingly, at that stage, the prisoner may contend that the Secretary of State has not acted lawfully in issuing his order to proceed, for example, by not paying due regard to the provision of the relevant Order in Council (including the terms of the Treaty incorporated into it).  

This, as we read it, is the statutory scheme for extradition of an accused person from this country, as set out in the Extradition Act 1870.  The scheme is entirely sensible in that it leaves the question of compliance with the Treaty to the Secretary of State, subject only to consideration (so far as permissible) by the High Court in habeas corpus proceedings; and leaves to the magistrate matters appropriate to his consideration in accordance with ordinary English law and procedure. …  Before issuing his order to proceed in the case of an accused person, the Secretary of State has, of course, to consider whether the fugitive is accused of an offence which is an offence against the law of the foreign country.  He next has to consider whether the fugitive is accused of a crime specified in the Treaty.  Since the Treaty, in specifying the crimes to which it applies, does so by listing crimes in two languages which may not be identical, the Treaty can only be complied with if the conduct complained of constitutes an offence under both lists of crimes in the Treaty.  Finally, the statutory procedure under the Act only applies in respect of what is defined as an “extradition crime” by the Act …”.

	The decision of the Divisional Court was upheld by the House of Lords [1984] AC 606.  At page 614 Lord Diplock, giving the leading speech, observed:

“It is, however, appropriate at this juncture to draw attention to the fact that when one is describing crimes committed in a foreign state that are regarded in the United Kingdom as serious enough to warrant extradition of an offender by whom they have been committed, one is describing the way in which human beings have conducted themselves and their state of mind at the time of such conduct.  Since conduct of those kinds consists of wicked things that people do in real life it is possible to describe them either in broad generic terms and using popular language, or in varying degrees of specificity, as had been done in minute detail, nine years before the Act of 1870 itself was passed …”.

Thus clear support was given to the ruling of the Divisional Court that it is the actual conduct of the subject of the extradition request which the magistrate is required to scrutinise.

	R. v. Governor of Pentonville Prison, ex parte Sinclair [1991] 2 AC 64 concerned an extradition request made by the United States.  The case arose before the passing of the 1989 Act, but was subject to the same Treaty which we are considering.  The respondents were the Director of Public Prosecutions, on behalf of the United States government, and the Governor of Pentonville Prison.  With reference to the Treaty and the 1870 Act, counsel for the respondents, as we understand, submitted (see page 82):

“It will thus be seen that article VII(2) envisages that the request should contain sufficient information for the Secretary of State to decide whether articles III and V are satisfied … 

Following the receipt of the Secretary of State’s order to proceed under section 7 of the Act of 1870 the magistrate, except in an allegedly “political” case (see section 3(1)) has important but very limited functions to perform as provided for in sections 9 and 10.  This case being a conviction and not an accusation case he had to determine only three matters:

(1)	whether the conviction had been properly proved;

(2)	whether the conviction is of an “extradition crime” as defined in section 26 of the Act;

(3)	whether the defendant is identified as the person convicted.”

It appears that this submission was accepted, since at page 91 Lord Ackner, giving the leading speech in the House of Lords, said:

“Certainly for the future, if your Lordships concur that the magistrate has no jurisdiction to decide either whether there has been an abuse of the process of the court, or whether the requirements of the Treaty have been satisfied, his powers being limited to those specified in sections 3(1), 8, 9 and 10, much time should be saved both in the magistrates’ and in the Divisional Court.”

	This passage is, we think, consistent with a passage in the speech of Lord Diplock in R. v. Governor of Pentonville Prison, ex parte Sotiriadis [1975] AC 1 at 24 where he said:

“The core of this procedure is a judicial hearing before a metropolitan magistrate at Bow Street, whose function is to determine whether the evidence adduced against the accused on behalf of the foreign state requiring his surrender would have been sufficient to justify his committal for trial in England if the crime in respect of which the requisition has been made had been committed there.”  

If in his order to proceed the Home Secretary specifies an offence or offences which are not included within the relevant statutory provision or Treaty, the order is on its face unlawful and we do not doubt that the subject of such an order may apply to the court forthwith to quash it.  Such was the case in R. v. Secretary of State for the Home Department, ex parte Gilmore [1999] QB 611: certiorari was granted and it does not appear to have been argued on behalf of the Home Secretary that such relief was inappropriate or premature.  It would indeed seem wrong for anyone to be subjected to arrest and possible confinement, and to be obliged to contest proceedings, where the initiating document shows on its face a clear excess of jurisdiction.

That, however, is not this case.  The Home Secretary in his order specified offences against the Company Securities (Insider Dealing) Act 1985 and such offences were deemed to be added to the first schedule to the 1870 Act with effect from a date immediately before the 1989 Act came into force, that being a relevant date for purposes of the definition of “extradition crime” in paragraph 20 of Schedule 1 to the 1989 Act.  It is suggested to us that the offences of which the applicant is accused fall within number 20 in the list scheduled to the UK/US Treaty.  But whether they do or do not is, as the parties agree, unimportant, since it is in any event necessary for the offences charged to meet the conditions in Article III(1)(a), (b) and (c) of the Treaty:  see R. v. Governor of Holloway Prison, ex parte Jennings [1983] 1 AC 624.  It is not in our view possible, simply by looking at the Home Secretary’s order and the schedule to the treaty and the first schedule to the 1870 Act as amended, to form any conclusion whether the conduct of which the applicant is accused satisfies Article III(1)(a), (b) and (c) or not.

If the outstanding warrant were executed and the extradition proceedings heard, the magistrate would have to consider the evidence tendered to him of what the applicant is said to have done.  Provided he was satisfied of the sufficiency of that evidence, he would next have to ask himself:  if the applicant had done in England and Wales and not (as alleged) in the United States what he is shown to have done, would that conduct constitute the crime specified in the order to proceed and be punishable here by imprisonment for a year or more and would it constitute an offence for which the magistrate would commit the applicant for trial?  The magistrate has no jurisdiction to issue his warrant for committal of the fugitive criminal for any crime other than one specified in the order to proceed (In re Nielson [1984] AC 606, 619) and it is with reference to that crime or those crimes alone that the magistrate must make his decision.  

Having heard the competing contentions of the parties, and helpful submissions on behalf of the United States Government, we have inevitably formed tentative views on the likely outcome if the matter were to proceed before the magistrate.  Since the 1985 Act proscribes only insider dealing in listed securities on the London Stock Exchange, it would appear doubtful whether the applicant’s dealing on the New York and Pacific Stock Exchanges, even if conducted in England and Wales, would constitute a crime punishable under the law of this country.  But it may be that for present purposes the 1985 Act is to be read as having a broader and less domestic application.  This was not in our view a matter on which the Home Secretary was required to form a correct legal judgment before issuing his order to proceed.  Nor, in our judgment, is it a matter on which we should at this stage, before there is any ruling by the magistrate, make any decision.  The statutory scheme envisages that a challenge of this kind should follow and not precede a decision by the magistrate, and it would in our view distort that scheme if we were now to rule.  

We accordingly refuse this application.  This is the judgment of the court.