R (Bermingham and others) v Director of the Serious Fraud Office

The court considered two linked proceedings brought by three defendants: a judicial review of the Director of the Serious Fraud Office's decision not to institute an investigation under s.1(3) of the Criminal Justice Act 1987 and statutory appeals under the Extradition Act 2003 against extradition decisions by a District Judge and by the Secretary of State. The court held that s.1(3) does not impose a duty on the Director to decide venue or to pre-empt the extradition process in order to protect Convention rights; the Director's decision not to investigate was within his broad discretion and not irrational.

The court concluded that (i) the extradition request satisfied s.137 of the Extradition Act 2003, (ii) there was no bar to extradition by reason of delay under s.82, (iii) there was no demonstrated abuse of process by the United States prosecutors, (iv) no clear risk of a flagrant denial of a fair trial was established under s.87 (Article 6) and extradition was not shown to be disproportionate under Article 8, and (v) the speciality rule under s.95 was satisfied on the facts and legal materials considered. The judicial review and the statutory appeals were therefore dismissed and the Secretary of State's extradition order upheld.

Background and procedural posture.

• The claimants (three former GNW employees) applied for judicial review of the Director of the Serious Fraud Office's refusal (by letter dated 24 September 2004) to open an investigation under s.1(3) of the Criminal Justice Act 1987 into alleged fraud linked to Enron-related transactions.
• The same three defendants appealed decisions arising from extradition proceedings under the Extradition Act 2003: (a) decisions of a District Judge at the Bow Street extradition hearing (rulings 25 June and 15 October 2004); and (b) the Secretary of State's decision of 24 May 2005 ordering extradition to the United States.

Nature of relief sought.

• Judicial review sought an order quashing the Director's decision not to investigate and a declaration that he should have exercised functions differently.
• Under the 2003 Act the defendants appealed the District Judge's rulings and the Secretary of State's extradition order, seeking discharge under the statutory appeal routes (ss.103–104 and ss.108–109).

Issues framed by the court.

• Whether the Director's refusal to investigate was irrational or unlawful (Wednesbury), or breached duties under the European Convention on Human Rights by failing to protect defendants' Article 8 rights through forum selection.
• Whether the District Judge erred in law or fact in finding the alleged conduct constituted an extradition offence under s.137; whether extradition was barred by the passage of time (s.82); whether the extradition proceedings were an abuse of process; and whether extradition would violate Articles 6 or 8 of the ECHR (s.87).
• Whether the Secretary of State was wrong to conclude that speciality arrangements existed under s.95 and whether he failed to protect Convention rights when deciding to order extradition.

Court's reasoning (concise).

• Judicial review: The Director possesses a broad, resource and policy-based discretion under s.1(3) to decide whether to investigate; that power does not include a duty to select forum to protect Convention rights or to pre-empt the extradition process. The Wednesbury challenges (including alleged factual errors and delay concerns) were not made out. The Director's conclusion that critical evidence and witnesses were in the United States and that prosecutorial and co-ordination considerations made an SFO investigation inappropriate was a legitimate exercise of judgment.
• Abuse and jurisdiction: The court recognised a residual abuse jurisdiction in extradition hearings under the 2003 Act (because the Secretary of State no longer has a general discretion as under earlier legislation). However, no abuse was established on the facts: delays and selective disclosure complained of did not demonstrate an ulterior motive or bad faith by the requesting authorities.
• Extradition merits: The District Judge correctly found the conduct fell within s.137; there was no sufficient prejudice arising from delay under s.82; there was no clear risk of a flagrant denial of a fair trial in the United States (Article 6) and the Article 8 proportionality inquiry did not demonstrate exceptional circumstances to refuse extradition. The Secretary of State was also entitled to conclude that speciality arrangements were in place under s.95 and that potential sentencing practice in the United States did not breach the specialty protection.

The application for judicial review is dismissed and the statutory appeals are dismissed. The Director was entitled to decline to open an investigation under s.1(3) of the Criminal Justice Act 1987; the District Judge correctly applied and interpreted the Extradition Act 2003 (including s.137, s.79/s.82 and s.87); there was no abuse of process and no demonstrated violation of Article 6 or Article 8 ECHR; and the Secretary of State correctly concluded that speciality arrangements under s.95 were satisfied. The Secretary of State's decision to order extradition is upheld.

Permission to apply for judicial review granted by the Divisional Court on 7 April 2005. Extradition proceedings commenced at Bow Street Magistrates' Court (warrants issued 16 April 2004); District Judge Evans made key rulings on 25 June 2004 and 15 October 2004 and sent the case to the Secretary of State. The Secretary of State decided to order extradition on 24 May 2005. The defendants appealed the District Judge's rulings (s.103 appeal) and the Secretary of State's order (s.108 appeal) to the High Court (this judgment).