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

The Director of the Serious Fraud Office has no duty to investigate suspected fraud to secure a domestic trial or pre-empt extradition. Judicial review of discretionary investigation decisions requires a wholly exceptional case on its legal merits. The Extradition Act 2003 implies a jurisdiction to prevent abuse of the extradition process, exercised consistently with its statutory requirements. An extradition offence may involve conduct occurring partly in the requesting territory. Properly constituted extradition for serious offences ordinarily outweighs interference with family life; disproportionality requires wholly exceptional circumstances. The possibility of domestic prosecution may nevertheless inform that assessment. Specialty protects against prosecution and punishment for other offences, while permitting consideration of related conduct when sentencing for the extradited offence. Foreign sentencing practice need not mirror domestic practice.

David Bermingham, Giles Darby and Gary Mulgrew were British citizens employed in London by Greenwich NatWest, a division of National Westminster Bank plc. United States prosecutors accused them of participating in a cross-border scheme involving Enron Corporation which defrauded their employer and yielded approximately $7.3 million for their benefit. The defendants disputed the allegation of dishonesty. They maintained that any trial should take place in England.

The defendants sought judicial review of the Director of the Serious Fraud Office's refusal to commence an investigation under section 1(3) of the Criminal Justice Act 1987. They also brought statutory appeals under the Extradition Act 2003 against the District Judge's decisions permitting the extradition process to proceed and the Secretary of State's subsequent extradition orders. The challenges concerned the location of the alleged conduct, delay, abuse of process, Convention rights and the adequacy of United States specialty arrangements. The central question was how the statutory schemes protected the defendants' rights where the alleged offences could be tried in either jurisdiction.

1. The judicial review application and both statutory appeals were dismissed unanimously. Laws LJ gave the substantive judgment, with which Ouseley J agreed.

2. Section 1(3) of the Criminal Justice Act 1987 conferred a discretionary investigative power. It imposed no duty to formulate a mechanism for choosing the trial venue or to investigate to prevent extradition. Practical questions of forum could inform the utility of an investigation. Judicial review remained available, but interference required a wholly exceptional case on its legal merits. The alleged factual errors disclosed no sustainable irrationality challenge.

3. Some relevant conduct in the requesting territory sufficed under section 137(2)(a) of the Extradition Act 2003. Armas imposed no additional requirement that conduct elsewhere target that territory where relevant acts substantially occurred there. The alleged United States conduct satisfied the provision. Delay established neither prejudice to the defence nor a passage-of-time bar.

4. The extradition judge possessed an implied abuse jurisdiction to protect the statutory scheme's integrity. Earlier authorities depended on safeguards absent from the new regime. For designated territories, abuse could not ordinarily rest on withholding evidence unnecessary to the statutory inquiry or on proceedings being governed by the new legislation. Bad faith could alter that position. Neither deliberate concealment of a fatal weakness nor tactical delay or an ulterior prosecution motive was established.

5. The Article 6 challenge required a clear risk of a flagrant denial of a fair trial, following Ullah. That risk was unproved. The District Judge's assessment of the defence expert furnished no basis for appellate interference, and the United States constitutional safeguards supported the conclusion.

6. Article 8 required a proportionality assessment which gave substantial weight to international criminal justice co-operation and extradition obligations. A properly constituted extradition for serious offences required wholly exceptional circumstances to be disproportionate. Domestic trial possibilities and nationality could inform that assessment. They required neither a comparative investigation of prosecution prospects nor identification of the dominant jurisdiction. The substantial United States connections, family circumstances and alleged conditions abroad disclosed no disproportionate interference.

7. The District Judge should have addressed the domestic trial possibility more fully. Section 104 nevertheless required dismissal: proper consideration could not have produced a different result, and directing reconsideration would have been futile.

8. Specialty fell to be assessed under section 95, including the particular facts, rather than by assuming identity with the treaty wording. United States law and the undertaking respected the limits of the extradition. The defendants could face the fraud described in the Texas indictment, including its participants and Enron's involvement, but no wider accusation.

9. Being dealt with included sentencing. The Secretary of State had to assess statutory compliance independently. Consideration of related conduct when sentencing for the extradited offence differed from punishment for another offence. Broader foreign sentencing practices and advisory guidelines established no specialty breach.

10. The existence of a separate Convention duty governing the Secretary of State's decision was left open. Later Convention-related facts appeared capable of consideration on appeal against the judge. No new facts arose, and the human rights challenge failed in any event.

• High Court (Administrative Court): In [2006] EWHC 200 (Admin) , dismissed the judicial review application and the statutory appeals against the District Judge's decisions and the Secretary of State's extradition orders. Permission for judicial review had been granted on 7 April 2005.
• Secretary of State: On 24 May 2005, concluded that specialty and human rights objections did not prevent extradition and ordered the defendants' extradition under the Extradition Act 2003.
• Bow Street Magistrates Court: In June and October 2004, District Judge Evans determined that the alleged conduct constituted extradition offences, rejected the statutory bars and human rights objections, and sent the cases to the Secretary of State.