Norris (Appellant) v Judgments - Government of the United States of America and others (Respondent) (Criminal Appeal from Her Majesty's High Court of Justice)

Mere price-fixing, without aggravating conduct such as fraud, misrepresentation, intimidation or interference with legal rights, was not a criminal offence at common law or under the legislation preceding the statutory cartel offence. Secrecy or the charging of higher prices did not alone convert participation in a cartel into conspiracy to defraud. Independent dishonest representations could, however, be criminal.

For double criminality under section 137 of the Extradition Act 2003, the conduct test applies. The court examines the conduct described in the extradition request, disregarding narrative background. When transposing foreign conduct, it changes the requesting-state institutions and circumstances only so far as necessary. Obstructing an equivalent domestic criminal investigation may therefore be an extradition offence even if the resulting foreign charge has no domestic counterpart.

The United States sought the extradition of Mr Ian Norris on four counts. Count 1 alleged participation in an international price-fixing cartel. Counts 2–4 alleged obstruction of the American investigation through conspiracy, witness tampering and interference with evidence.

A district judge sent the case to the Home Secretary, who ordered extradition. The Queen's Bench Divisional Court upheld that decision in [2007] EWHC 71 (Admin), [2007] 1 WLR 1730. Mr Norris appealed to the House of Lords.

The principal questions were whether mere price-fixing was criminal in the United Kingdom during the alleged period; how double criminality and transposition operated under section 137 of the Extradition Act 2003; whether counts 2–4 were extradition offences; and whether passage of time required further evidential information.

1. Count 1—appeal allowed. In the unanimous composite opinion of Lord Bingham of Cornhill, Lord Rodger of Earlsferry, Lord Carswell, Lord Brown of Eaton-under-Heywood and Lord Neuberger of Abbotsbury, mere price-fixing was not a criminal offence in the United Kingdom during the period alleged. The order relating to count 1 was quashed.

2. The common law treated an unreasonable restraint of trade as void and unenforceable. Without aggravating features such as fraud, misrepresentation, violence, intimidation or inducement of breach of contract, it was neither actionable nor indictable. The Divisional Court had wrongly treated the secrecy and economic consequences inherent in a cartel as sufficient dishonesty. A separately agreed false representation to customers could support conspiracy to defraud, but no such conduct was alleged.

3. The legislative history confirmed that conclusion. Parliament had regulated restrictive practices through civil registration, investigation, injunctions and penalties while repeatedly excluding criminal proceedings. Section 188 of the Enterprise Act 2002 created a new cartel offence. Legal certainty and the constitutional responsibility of Parliament for criminalisation also prevented the courts from retrospectively recognising a common-law offence of bare price-fixing.

4. Double criminality. Although unnecessary to the disposition of count 1, the committee decided the point because of its general importance. Section 137 of the Extradition Act 2003 adopts the conduct test, not a comparison between the legal ingredients of the foreign and domestic offences. For Part 2, the relevant conduct is that described in the documents constituting the request. Narrative background is disregarded, but allegations relevant to the corresponding United Kingdom offence are considered.

5. Counts 2–4. Transposition requires the court to replace the requesting state and its connected institutions with their domestic equivalents, changing no more than necessary. The substance of the allegations was obstruction of a criminal investigation by the duly appointed authority. An equivalent domestic investigation could have concerned possible fraud associated with price-fixing, even though bare price-fixing was not itself criminal. Counts 2–4 were therefore extradition offences under section 137(2)(b).

6. The passage of time did not establish a real risk of trial prejudice under section 82. Part 2 ordinarily requires neither disclosure of the prosecution evidence nor judicial inquiry into it. Requests for further information are exceptional, and Mr Norris had identified no concrete prejudice beyond speculation.

7. The district judge's assessment under section 87(1) had assumed extradition on the principal price-fixing count. The House therefore remitted the case to a district judge for a fresh Convention-rights and proportionality decision concerning counts 2–4 alone.

1. House of Lords: In Norris v Government of the United States of America and others [2008] UKHL 16, allowed the appeal on count 1, upheld the conclusion that counts 2–4 were extradition offences, and remitted the section 87(1) issue to a district judge.
2. High Court, Queen's Bench Divisional Court: Auld LJ and Field J dismissed the challenge to the extradition decision: [2007] EWHC 71 (Admin), [2007] 1 WLR 1730.
3. District judge and Home Secretary: Evans DJ sent the case to the Home Secretary on 1 June 2005, reported at [2005] UKCLR 1205. The Home Secretary ordered extradition on 29 September 2005.