Bermingham & Ors v Director of the Serious Fraud Office & Anor

A decision by the Director of the Serious Fraud Office whether to investigate under Criminal Justice Act 1987, s 1(3), is subject to judicial review only in wholly exceptional circumstances. The power does not require the Director to select the appropriate forum for trial, or to pre-empt the statutory extradition process in order to protect Convention rights.

Under Extradition Act 2003, conduct need only partly occur in the requesting category 2 territory to satisfy s 137(2)(a). The statutory scheme implies a residual abuse jurisdiction, but extradition is not abusive merely because the requesting state need not disclose merits evidence or establish a prima facie case. Extradition of United Kingdom nationals may interfere with article 8, but a properly constituted request for serious cross-border crime will be disproportionate only in wholly exceptional circumstances.

The claimants, three United Kingdom bankers, faced a United States indictment alleging wire fraud arising from the sale of their employer’s interest in a partnership connected with Enron. The alleged scheme involved conduct and witnesses in England, the United States and the Cayman Islands.

They sought judicial review of the Director’s refusal to investigate under s 1(3) of the Criminal Justice Act 1987. They also appealed under the Extradition Act 2003 against rulings of District Judge Evans and against the Secretary of State’s extradition order. The appeals raised extradition-offence, delay, abuse, Convention-rights and specialty issues.

The central question was whether the statutory regime or Convention rights required the defendants to be investigated or tried in the United Kingdom rather than extradited to the United States.

1. Judicial review dismissed; statutory appeals dismissed. Laws LJ gave the court’s composite judgment, with which Ouseley J agreed.

2. The Director’s discretion whether to investigate under s 1(3) of the Criminal Justice Act 1987 was especially broad. Judicial review of a refusal to investigate would require wholly exceptional legal circumstances. The Director was entitled to take account of evidential availability, delay, and the utility of a United States prosecution. Section 1(3) did not require him to decide the appropriate forum for trial or to use an investigation to interrupt extradition.

3. The District Judge correctly held that the alleged wire fraud was an extradition offence. Applying Armas [2005] 3 WLR 1079, s 137(2)(a) of the Extradition Act 2003 required only that some relevant conduct occurred in the category 2 territory. It did not require all conduct to occur there, nor that conduct outside the United States be targeted so as to cause harm there.

4. There was no bar under s 82. The defendants had not shown that delay caused trial prejudice through unavailable defence witnesses. Nor was the prosecution abusive. Although the Extradition Act 2003 implied an abuse jurisdiction because it removed the former ministerial discretion and, in this case, the prima facie evidential test, the requesting prosecutor acted in good faith. Non-disclosure of further evidential material and the timing of the request did not demonstrate an ulterior purpose or deliberate manipulation of the statutory transition.

5. Article 6 required a clear risk of a flagrant denial of a fair trial in the non-Convention receiving state. That stringent threshold was not met. Article 8 was engaged by separation from the defendants’ families, but extradition pursued the legitimate aim of preventing crime and was proportionate. The possibility of a United Kingdom trial could in principle matter, but the United States connections, critical American witnesses and strong public interest in honouring extradition arrangements meant that no exceptional circumstances were established.

6. There were effective specialty arrangements under s 95. United States law would respect the limit that the defendants could be tried only for the offences and facts for which extradition was granted. A superseding indictment could not impermissibly enlarge that case. The possibility that related conduct might inform sentencing did not itself mean that the defendants would be dealt with for a different offence contrary to s 95.

• High Court (Administrative Court): Dismissed the judicial-review claim and the defendants’ statutory appeals under the Extradition Act 2003.
• District Judge, Bow Street Magistrates’ Court: On 25 June 2004 held that the requested offences were extradition offences. On 15 October 2004 rejected the delay, abuse and Convention-rights objections and sent the cases to the Secretary of State under s 87(3).
• Secretary of State: On 24 May 2005 found effective specialty arrangements and ordered extradition. That order was upheld.