Neutral Citation Number: [2009] EWHC 1395 (Admin)

CO/6874/2008 
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Friday, 5 June 2009
 
B e f o r e:

LORD JUSTICE MAURICE KAY 

MR JUSTICE COLLINS 
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Between: 
EMMANUEL ONWUZULIKE 
Claimant

v 

THE GOVERNMENT OF THE UNITED STATES OF AMERICA 
Defendant 
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Computer‑Aided Transcript of the Stenograph Notes of  
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Mr J Bennathan QC and Mr B Cooper (instructed by EBR Attridge) appeared on behalf of the Claimant
Miss G Linfield and Mr R Harland (instructed by CPS) appeared on behalf of the Defendant
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J U D G M E N T
1.	LORD JUSTICE MAURICE KAY:  This is a statutory appeal under Part 2 of the Extradition Act 2003.  The Government of the United States of America has made an extradition request in respect of the appellant in relation to alleged offences known colloquially as mail fraud and wire fraud.  The alleged modus operandi is in the form of an advance fee fraud whereby selected persons are informed that they have won large sums of money which will be sent to them once they have themselves sent specified sums of money to the organisers.  Although some of the selected persons sent the specified sums, the promised prizes never arrived.  It is said that up to £2 million was fraudulently obtained.  
2.	There is cogent evidence against the appellant.  His case is that he should face prosecution in this country and not be extradited to the United States.  He is a British citizen having come here from Nigeria in 1990.  He was granted British citizenship in 2000.  He lives with his wife and three children in south London, where his children attend local schools.  He asserts that the substantial sums of money in his several bank accounts were derived from a legitimate business in which he sells car parts.  To the extent that incriminating material has been recovered from his premises, his computer and his car, he attributes it to his cousin who was in London at the material time but who has since been deported to Nigeria.  
3.	It is important to set out the relevant chronology.  The fraud is alleged to have been perpetrated between 2004 and 2006.  The Metropolitan Police became involved on the basis of information provided by British banks pursuant to their statutory duty to alert the authorities to suspicious accounts.  On 21 August 2006, the appellant was arrested when leaving a bank in Woolwich from which he had just withdrawn £19,000 in cash.  The money was seized.  The appellant was interviewed on 22 August 2006, 31 January 2007 and on a date in March 2007.  He was asked about a number of bank accounts and about the incriminating material to which I have referred, and he proffered the explanations to which I have also referred.  
4.	In anticipation of a prosecution in this country, the Crown Prosecution Service applied for and obtained a restraint order against the appellant in Southwark Crown Court on 13 March 2007.  The factual basis was substantially the same allegation of advance fee fraud.  The appellant remained on police bail.
5.	In the meantime, the federal authorities in the United States had began to investigate.  Between 7 January and 6 April 2007, five American complainants were interviewed in California, New Jersey and Massachusetts.  On 25 May 2007, a judge in Los Angeles formally instituted a prosecution in California and issued a warrant for the arrest of the appellant.  It is clear that the federal investigators had received documentation from the Metropolitan Police, although at that stage the Crown Prosecution Service remained unaware of the American investigation and prosecution.  They became aware in the late summer of 2007.  
6.	On 3 October 2007, representatives of the Crown Prosecution Service and their opposite numbers in the United States discussed the concurrent proceedings and reached agreement that the federal prosecution should take precedence.  On 22 October, the America authorities made a formal extradition request.  On 17 December, the Secretary of State issued a certificate under section 70 of the 2003 Act.  On 24 February 2008, the appellant attended the police station to answer his police bail in the course of the local investigation.  He was told that he would not be prosecuted here, but he was immediately arrested by reference to an extradition warrant.  
7.	The extradition hearing took place on 15 May 2008, when District Judge Nicholas Evans rejected submissions made on behalf of the appellant and sent the case to the Secretary of State.  On 9 July 2008, the Secretary of State ordered the appellant's extradition.  On 22 July, the appellant lodged this statutory appeal.  
8.	I ought also refer to two other matters.  Having decided not to prosecute here, the Crown Prosecution Service nevertheless issued civil proceedings in the Magistrates' Court under the Proceeds of Crime Act 2002.  The substantive hearing took place on 25 July 2008, when a forfeiture order was made in the sum of £20,010 plus interest.  It was based substantially on the cash seized from the appellant outside the bank on 21 August 2006.  The appellant now has permission to apply for judicial review of the forfeiture order.  We granted permission following the hearing of the extradition appeal.  
9.	Secondly, the appellant also issued an application for permission to apply for judicial review of the decision by Crown Prosecution Service not to prosecute him in this country.  It had been envisaged that we would hear that application on a rolled‑up basis at the same time as the statutory appeal, but on 21 February 2009, the appellant discontinued it, the view having been taken by his advisers that substantially the same issues fell within the statutory appeal.
10.	The first thing to observe and to keep in mind is that this is a statutory appeal pursuant to section 103 of the Extradition Act 2003.  This court may only allow such an appeal "if the conditions in sub‑section (3) or the conditions in sub‑section (4) are satisfied": see section 104(2).  Section 104(4) does not arise in the present case.  We are tied to section 104(3).  It provides: 
"The conditions are that— 
 (a) the judge ought to have decided a question before him at the extradition hearing differently; 
 (b) if he had decided the question in the way he ought to have done, he would have been required to order the person’s discharge." 
11.	I emphasise this provision because at times the submissions on behalf of the appellant were expressed in a manner which implied a wider judicial review jurisdiction.  Section 104(3) is narrower than traditional judicial review in that it requires the identification of an error by the District Judge "but for which he would have been required to order the person's discharge".  With this in mind I turn to the complaints about the decision of the District Judge. 
12.	In their skeleton argument, Mr Bennathan QC and Mr Cooper state that their primary submission is that: 
"... the court should allow his appeal against the decision of the District Judge because inadequate and procedurally flawed consideration was given by the CPS to a continuation of the prosecution in the UK where the domestic criminal investigation was already at an advanced stage and the District Judge failed to engage with the forum conveniens submissions." 
13.	A connected submission is that the CPS and the District Judge did not give effect to the appellant's rights under Article 8 of the ECHR.  There has been a debate before us as to whether or not, in reaching its own decision not to prosecute here but to defer to a prosecution in the United States, the CPS was respectful of the appellant's Article 8 rights.  However, in my judgment, that is not the correct focus.  The guardian of the appellant's human rights in relation to a request for extradition is the District Judge.  By section 87(1) he "must decide whether the person's extradition would be compatible with the Convention rights". If he decides that it would not be, he must order the person's discharge: see section 87(2). 
14.	We do not have transcript of the District Judge's judgment, only a note agreed by counsel.  The relevant part reads as follows: 
"As to Article 8 I accept that the defendant is a UK citizen who is married with his family and children in the UK.  It is submitted that to uproot him and incarcerate him for a long time in the US would be disproportionate to his Article 8 rights.  
I have no doubt that Article 8 applies to this case.  
There are no striking and unusual facts to suggest his extradition would be disproportionate.  He is accused of a serious crime and in the ordinary course of events there is no reason that he should not stand trial in the US." 
15.	Laconic though it may be, that certainly does not seem to show an approach to Article 8 that was legally erroneous.  On what basis then is it said that the District Judge "ought to have decided the question differently"?  The submission is that he ought to have decided that the argument for prosecution here rather than in the United States is so overwhelming that it tips the balance on the issue of proportionality.  In this regard, reliance is placed on the judgment of Laws LJ in R(Bermingham and others) v Director of the Serious Fraud Office [2006] EWHC 200 Admin; [2007] 2 WLR 635 at paragraph 121 where he said: 
"I do not accept ... that the possibility of trial in the United Kingdom is legally irrelevant in a case like this.  There might be an instance in which such a possibility could tip the balance of judgment in favour of a conclusion that the defendant's extradition would amount to a disproportionate interference with his Article 8 rights.  That, I think, has to be accepted if s.87 is to constitute effective judicial protection of the Convention guarantees.  What it would take to make such a case is a very different question." 
16.	In the first instance it was for the prosecuting authorities to consider and decide upon the appropriate forum.  It is in this context that it is necessary to consider the criticisms of the prosecutorial decision to give precedence to the United States.  The main criticisms advanced on behalf of the appellant are as follows. 
 (1) The decision was taken on the erroneous assumption that the appellant is a Nigerian citizen, whereas he has had British citizenship for some years.  
 (2) The material disclosed by the CPS makes no reference to the appellant's Article 8 rights.  He has lived in this country since 1990, is married with three children aged 13, 10 and 8, who attend schools in London.  
 (3) The allegations against him relate to acts done by him in London.  The main evidence has been obtained here.  He was arrested here before the American authorities showed any interest in him.  He was interviewed by the Metropolitan Police.  Although the extradition request details five alleged victims who live in America and refer to others in Canada, Dubai, Indonesia and elsewhere, the victims are unlikely to be required to give live evidence at any trial.  
 (4) On the other hand, the case for the appellant in any trial as disclosed in his police interviews is that the money in his various bank accounts came from legitimate trading in car parts from premises in London, and that any incriminating evidence found in his property was left there by his cousin, a Nigerian citizen who has been deported to that country.  If witnesses are to be called to support this case, they will be people who live in London.  
 (5) This is not a case in which the police investigation in this country was simply by way of assistance to the American authorities; it preceded the America investigation and had reached an advanced stage before the first approach from the American authorities.  
 (6) If the CPS had followed the relevant guidance it would not have given precedence to an American prosecution. 
17.	I shall deal first with points (1) and (6).  As to point (1), I accept that the CPS made the erroneous assumption about British nationality.  I also accept that a person's nationality is an aspect of his private life for the purposes of Article 8.  However, I do not accept that, by itself, it can carry much weight in an extradition case.  In any event, although the CPS was mistaken about it, the District Judge was not.  
18.	I turn to point (6), the Guidance.  It is contained in a document "Guidance for handling criminal cases with concurrent jurisdiction between the United Kingdom and the United States of America".  It dates from January 2007, and is a document agreed between Her Majesty's Attorney General, the Attorney General of the United States and Her Majesty's Advocate.  There is also a document "Attorney General's domestic guidance for handling criminal cases affecting both England, Wales or Northern Ireland and the United States of America", dated 18 January 2007.  
19.	The guidance contained in the first of those documents provides, amongst other things: 
"Early contact between prosecutors, after discussing the cases with investigators, is intended to enable them to agree on strategies for the handling of criminal investigations and proceedings in particular cases ... In particular, early contact will be valuable in cases which are already the subject of proceedings in the other jurisdiction.
This document provides guidance for addressing the most serious, sensitive or complex criminal cases where it is apparent to prosecutors that there are issues to be decided that arise from concurrent jurisdiction."
20.	It later provides: 
"In the most serious, sensitive or complex cases where issues of concurrent jurisdiction arise, investigators and prosecutors, in the UK and US should consult closely together from the outset of investigations, consistent with the procedures established by their agencies."
The domestic guidance is to like effect.  
21.	The District Judge stated: 
"The guidance is only for serious and complex cases.  I am not satisfied that this is a serious or complex case.  
If this is a serious or complex case the Guidance was followed." 
22.	We have the benefit of a statement from William Sampson, a barrister and special case work lawyer in the CPS.  It was not before the District Judge.  It tends to show that if the Guidance was followed, that was more by accident than by design.  In his statement Mr Sampson says: 
"I should make clear that I did not hold the discussion with Ms Lindsay of the Justice Department because that is what is required by the Guidance (which had not long been in force), but because this sort of discussion is standard practice and has been standard practice for many years.  Nor did I specifically consider the procedural steps set out in the Guidance as to the deliberations which may be necessary before such a discussion takes place." 
23.	The document before the District Judge was from Mr Welch of the CPS Policy Directorate.  Whilst it recorded the conference of 3 October 2007, it did not refer in terms to the Guidance.  I do not agree with the view of the District Judge that the Guidance does not apply because this is not a sufficiently "serious or complex case".  In my view, it probably does reach that threshold.  However, I do consider that, at the very least, the spirit of the Guidance was observed in that once it was discovered that there was prosecutorial interest in both countries, reasonably prompt discussions took place between the authorities.  Mr Bennathan submits that matters were allowed to drift, but I do not think that that is a fair criticism.  The evidence of Mr Sampson is that it was only in "the late summer of 2007" that the relevant part of the CPS first learned of the American interest, although the British Police had been providing documents to the American investigators since about April 2007 pursuant to mutual legal assistance.  
24.	It seems to me that there was no undue tardiness once the relevant part of the Crown Prosecution Service became aware of the interest in an American prosecution.  "Late summer" is consistent with, say, early September, and on 3 October the matter was jointly considered by the American and British prosecuting authorities who agreed upon precedence for the American proceedings whereupon the American extradition request was formally made on 22 October.  
25.	One of the reasons given for the decision of 3 October was "The case ... in the USA was ready, although, no doubt, it would benefit from the addition of any evidence obtained in the United Kingdom".  I take that from paragraph 9 of Mr Sampson's statement.  Mr Bennathan submits that that conceals just how far advanced the case here was.  The arrest of the appellant in August 2006 led to the recovery of significant evidence.  Bank records showed some £2 million passing through his various accounts, including money wired from the American complainants, other documents related to the alleged telemarketing fraud, including notes relating to specific victims, letters regarding an Australian lottery and e‑mails relating to a fraudulent lottery.  The Metropolitan Police procured an analysis of the data stored in the appellant's computers, which was completed in early 2007, and of course by then the appellant had been interviewed on three occasions.  The restraint order was obtained on the basis of this evidence in March 2007.  
26.	Against this background Mr Bennathan submits that the forum issue overwhelmingly favoured presentation in this country.  These are points (3), (4) and (5) as I summarised them earlier.
27.	In support of this submission, he refers to the Canadian authority of United States of America v Cotroni [1989] 1 SCR 1469 in which La Forest J identified the following as relevant factors in a consideration of whether the more appropriate forum for prosecution is the requesting or the requested state where the offence is of a cross‑border character.  They are set out against a serious of bullet points as follows: 
"‑ where was the impact of the offence felt or likely to have been felt 
‑ which jurisdiction has the greater interest in prosecuting the offence 
‑ which police force played the major role in the development of the case 
‑ which jurisdiction has laid charges 
‑ which jurisdiction has the most comprehensive case 
‑ which jurisdiction is ready to proceed to trial 
‑ where is the evidence located 
‑ whether the evidence is mobile 
‑ the number of accused involved and whether they can be gathered together in one place for trial 
‑ in what jurisdiction were most of the acts in furtherance of the crime committed 
‑ the nationality and residence of the accused 
‑ the severity of the sentence the accused is likely to receive in each jurisdiction."
28.	That is expressly proffered as a non‑exhaustive list, and immediately after it there is an adoption of an earlier judgment in United States of America v Swystun, in which Hanssen J observed: 
"... it is apparent from an examination of the factors listed above that although a fugitive may not have personally performed any act in the foreign 
jurisdiction in furtherance of the crime with which he is charged, that jurisdiction, for a variety 
of reasons may still be the most effective place for him to be prosecuted."
29.	We are told that this is the first occasion on which this court has been invited to derive assistance from Cotroni.  For my part, I consider it to be helpful.  However, I do not think that it points inexorably to giving precedence to a prosecution in this country in the present case.  The impact of the offences was substantially extraterritorial, and it seems more in the United States than in any other single country.  That in itself justifies the greater interest of an American prosecution.  Although, apart from the interviews of the complainants, the Metropolitan Police has played a major part in the investigation and the gathering of the evidence derived from the appellant's activities in this country, the evidence so gathered is highly mobile.  Moreover, as the defence is of a "confess and avoid" nature, it is totally unclear whether there are British witnesses who could be called to give significant evidence on behalf of the appellant.  Plainly his cousin, who has been deported in any event, could not be seen as a useful defence witness.  As in any similar case, the principal defence witness would be likely to be the appellant himself.  If there would be others, we simply do not know who they are, or to what extent their testimony would necessitate presence in the United States, as opposed, for example, to being in documentary or videolink form.  
30.	As I have said, the appellant's British nationality and residence are factors, but not in themselves of great weight.  Moreover, although the statutory maximum sentence is higher in the United States, we have no evidence as to the likely sentence.  Taking all these matters into consideration, I do not consider that the District Judge fell into error in his decision to give precedence to prosecution in the United States. 
31.	I ought to refer to a related submission by Mr Bennathan regarding the appropriate forum.  Although the 2003 Act does not specifically address the question of concurrent jurisdictions, the contention that particular individuals ought to be prosecuted here rather than be extradited in respect of substantially the same alleged criminality has attracted publicity in a number of recent high profile cases, mainly concerning extradition requests from the United States in respect of British citizens.  In July 2006 during consideration of a bill then before Parliament, the opposition sought to move an amendment to include a clause which would have had the effect of omitting the United States from the designation of Part 2 territories under the 2003 Act.  One of the drivers was concern about extradition to the United States of British citizens who could be prosecuted here.  The proposed amendment did not reach the statute book.  However, in the course of the debate in the House of Lords, the Attorney General, referring to the case of Bermingham, said: 
"The issue of forum was dealt with comprehensively and looked at, and it was a proper matter to be dealt with by the courts here." 
32.	Mr Bennathan points to this as Parliamentary confirmation that consideration of the more appropriate forum is a proper matter for consideration on an extradition hearing or on appeal.  That is not in dispute, as Bermingham itself illustrates.  What it does not and could not do is to raise any presumption or give any steer in relation to a particular case.  I do not consider that it sheds any new light on what we have to decide.   
33.	I turn to Mr Bennathan's point (2), the appellant's family and personal circumstances, and the suggested linkage between the forum issue and the appellant's Article 8 rights.  Whilst I agree with the observation of Laws LJ in Bermingham that "the possibility of trial in the United Kingdom ... could tip the balance of judgment in favour of a conclusion that the defendant's extradition would amount to a disproportionate interference with his Article 8 rights", I do not consider that it does so in this case.  The fact is that the appellant's family and private life is wholly unremarkable.  It exhibits no features such as might call for priority over the state's interest in the mutual application of extradition arrangements.  Although the language of exceptionality is now considered inappropriate when used in the context of prescription rather than prediction, it is noticeable that in Launder v the United Kingdom [1997] 25 EHRR CD 67, the Strasbourg Commission said at paragraph 3: 
"... it is only in exceptional circumstances that the extradition of a person to face trial on 
charges of serious offences committed in the requesting State would be held to be an unjustified or disproportionate interference with the right to respect for family life." 
34.	Suffice it to say that an appellant with a real but unremarkable family and private life has little prospect of resisting extradition by reference to Article 8.  Moreover, there is the possibility of repatriation for the serving of any prison sentence imposed by the American courts in relation to which there are international arrangements. 
35.	I have dealt with what I identified as six principal criticisms of the decision of the District Judge.  It remains to address two other points.  The first is that Mr Bennathan also seeks to put the case for the appellant by reference to   abuse of process.  It is established that an abuse of process may require a decision not to extradite: see for example R(Government of the United States of America) v Bow Street Magistrates' Court [2006] EWHC 2256 Admin; [2007] 1 WLR 1157.  In the present case, the abuse is said to relate to failure to follow the Guidance.  As I have already said, I consider that there was substantial, if unconscious, compliance with the Guidance because there was reasonably prompt joint consideration of the forum issue once the appropriate officials were aware of each other's prosecutorial intentions.  Moreover, in R(Ahsan) v Director of Public Prosecutions [2008] EWHC 666 Admin, the District Judge had considered that "no basis has been established for a finding that non‑consideration of the guidance ... at this stage is capable of being a deliberate manipulation and abuse of the process of this court", which led to Richards LJ saying in judgment on the appeal in that case (at paragraph 128): 
"Even if the guidance had applied and there had been a failure to consider it, the failure would not be capable of rendering the extradition proceedings an abuse of process." 
36.	In the present case, Mr Bennathan makes no suggestion of manipulation or bad faith.  I am satisfied that this is not a case of abuse of process.
37.	The second ancillary submission on behalf of the appellant is that before the District Judge and in this court the appellant has been handicapped in putting his case on, for example, forum and Article 8 by the paucity of the material disclosed by the American authorities and the Crown Prosecution Service as their agent.  This is a difficult submission in the context of extradition where there is no general obligation of disclosure: see Lodhi v Governor of HMP Brixton [2001] EWHC 178 Admin at paragraphs 109 to 115 per Brooke LJ.  The approach is that it is for the requesting state to decide what to disclose, and it takes the risk of failure if it decides to disclose too little to establish its case.  
38.	As it happens I do not consider that the material before the District Judge in this court is deficient in this case.  There is no reason to suppose that the appellant has been prejudiced in the proceedings by any such deficiency.
39.	In conclusion I revert to the words of section 104(3).  Save for the matter of the applicability of the Guidance, I do not find that the District Judge ought to have decided a question before him at the extradition hearing differently.  If he had decided the question of the applicability of the Guidance in the way that he ought to have done, that would not have required him to order the appellant's discharge.  For all these reasons, I would dismiss the appeal.  
40.	MR JUSTICE COLLINS:  I agree. 
41.	MR COOPER:  I am grateful, my Lord.  Could I ask for an order for detailed legal aid assessment?  No order for costs, I believe, is agreed.
42.	LORD JUSTICE MAURICE KAY:  Is that agreed?
43.	MR HARLAND:  It is agreed, my Lord. 
44.	LORD JUSTICE MAURICE KAY:  Certainly.
45.	MR HARLAND:  There is one further point that I would raise, and that is under section 111.  In addition to quashing the appeal, I would ask that the court order the appellant's extradition.
46.	LORD JUSTICE MAURICE KAY:  Because time has to run, does it not? 
47.	MR HARLAND:  It does.
48.	LORD JUSTICE MAURICE KAY:  Yes, we direct the extradition.  Give me the section number again. 
49.	MR HARLAND:  It is 111(5)(b).  I am sorry, my Lord, that is if the appeal is allowed.  Does extradition need to be reordered? 
50.	MR JUSTICE COLLINS:  Is there a time?  It is ten days, is it?
51.	MR HARLAND:  There is a time which runs from this point.  It may be, my Lord, that section 111(5) only applies when the appeal has been allowed, in which case I believe that no order need be made at this point.
52.	LORD JUSTICE MAURICE KAY:  So it is where there is a prosecution appeal and there is no pre‑existing order.  
53.	MR JUSTICE COLLINS:  Yes, that would figure.
54.	LORD JUSTICE MAURICE KAY:  Well, if you need an order you may have it.  Can you double check in the next few minutes?  We are agreed you may have one if you need one.
55.	MR JUSTICE COLLINS:  Yes, but it sounds to me as if you do not because we simply uphold the order that was made by the District Judge, do we not? 
56.	LORD JUSTICE MAURICE KAY:  Yes, and the Secretary of State, of course, has ordered in the meantime.
57.	MR COOPER:  May I raise one final matter?  Mr Bennathan wished to give consideration to the issue of certification of a point of law of public importance having had the opportunity to consider the judgment, of which I have taken a note.  Were it to be possible for the court to order the transcript of this judgment be expedited, that may be of assistance.  There is a 14‑day deadline to formulate such a question on a point of law of public importance. 
58.	LORD JUSTICE MAURICE KAY:  Yes.
59.	MR JUSTICE COLLINS:  Can you indicate broadly what point you think is possibly of public importance?
60.	MR COOPER:  At present there is no point that I would ‑‑ 
61.	MR JUSTICE COLLINS:  The answer is you cannot.
62.	LORD JUSTICE MAURICE KAY:  You are relying on Mr Bennathan's ingenuity, are you?  We will order expedition and the matter would have to be brought back before us next week or the week after.  Thank you both very much.