Norris v Government of the United States of America and others

The House held that mere participation in a price-fixing cartel, without aggravating features such as dishonest misrepresentation or other independently criminal conduct, was not a criminal offence under the common law in the United Kingdom at the time of the alleged conduct (1989-2000). The court relied on the historical authorities (including Mogul Steamship and related decisions), the post-war statutory and regulatory landscape dealing with restrictive trade practices, and the principle of legal certainty to conclude that criminalisation of cartel activity was a matter for Parliament and not for the courts. The House therefore allowed the appeal in respect of count 1 (the Sherman Act price-fixing count) and quashed the extradition order as to that count.

The court also determined the test of double criminality under Part 2 of the Extradition Act 2003 (section 137). It held that the appropriate approach is the wider 'conduct' test: the court should assess whether the conduct relied on in the requesting state's documents (ignoring mere background narrative) would, if committed in the United Kingdom, constitute an offence of the requisite seriousness. Applying that approach, the House held that counts 2-4 (obstruction of justice, witness tampering and related offences) would, if translated and transposed appropriately, amount to extradition offences and therefore remitted those counts to a district judge for determination under section 87(1) of the 2003 Act (compatibility with Convention rights).

The appellant, a United Kingdom national, faced an extradition request from the United States on a four-count indictment returned by a grand jury in the Eastern District of Pennsylvania. Count 1 charged a Sherman Act offence (15 USC §1) for participation in a price-fixing cartel alleged to have been formed and operated outside the United States but affecting US commerce. Counts 2–4 charged obstruction of justice, witness tampering and related offences (18 USC §§371, 1512).

Procedural history:

• A district judge (Evans DJ) committed the appellant and sent the case to the Home Secretary; on 29 September 2005 the Home Secretary ordered extradition.
• The Queen's Bench Divisional Court (Auld LJ and Field J) upheld the decision ([2007] EWHC 71 (Admin)).
• The case came to the House of Lords by appeal.

Issues before the House:

1. Whether mere price-fixing, without aggravating dishonest conduct, was a criminal offence in the United Kingdom at the time of the conduct alleged (relevance to double criminality for count 1).
2. How the double criminality requirement in section 137(Part 2) of the Extradition Act 2003 should be applied — whether by reference to the foreign offence's elements ('offence test') or by reference to the conduct relied upon in the requesting state's documents ('conduct test').
3. Whether counts 2–4 satisfied the double criminality requirement and, if so, whether extradition on those counts would be barred as unjust or oppressive by reason of lapse of time under section 82 of the 2003 Act or incompatible with Convention rights under section 87(1).

Reasoning and conclusions:

• On the common law question the House reviewed Victorian and later authorities and the post-war statutory framework regulating restrictive trade practices (Restrictive Practices Acts, Resale Prices Act 1964, Restrictive Trade Practices Act 1976, Competition Act 1998) and subsequent criminalisation in the Enterprise Act 2002 (section 188). The court concluded that, historically and until Parliament enacted the statutory cartel offence in 2002, price-fixing without aggravating misconduct had not been treated as a criminal offence in the United Kingdom. The requirements of legal certainty and the proper role of Parliament militated against recognising a previously undisclosed common law crime.
• On double criminality, the House held that section 137 may be read consistently with either the offence test or the conduct test, but that policy, precedent and practicality favour the wider conduct test. The correct inquiry is whether the totality of the conduct relied upon in the requesting documents (excluding mere background narrative) would, if committed in the United Kingdom, constitute an offence punishable by at least the statutory threshold.
• Applying transposition principles to counts 2–4, the House held that obstructing an investigation by a duly appointed authority in the United Kingdom (transposed from the grand jury investigation) would be criminal, so counts 2–4 satisfied double criminality. The House remitted the question under section 87(1) (compatibility with Convention rights and proportionality) to a district judge for determination.

Relief sought: Extradition to the United States on the four counts. The appellant sought to resist extradition principally on double criminality grounds for count 1 and on unfairness/delay and Convention rights grounds for counts 2–4.

The appeal was allowed in part. The House allowed the appeal in relation to count 1 and quashed the extradition order because mere price-fixing (absent aggravating dishonesty) was not a criminal offence under English law at the time of the conduct. The House held that section 137 of the Extradition Act 2003 should be applied by reference to the conduct relied on in the requesting documents (the 'conduct' test) and concluded that counts 2–4 met the double criminality requirement when appropriately transposed; those counts were remitted to a district judge to determine the section 87(1) Convention-rights proportionality question.

Evans DJ committed the appellant and sent the case to the Home Secretary (1 June 2005); the Home Secretary ordered extradition (29 September 2005). The decision was upheld by the Queen's Bench Divisional Court (Auld LJ and Field J) ([2007] EWHC 71 (Admin), [2007] 1 WLR 1730). The present appeal was to the House of Lords ([2008] UKHL 16).