GW v Serious Fraud Office

The speciality rule under the Extradition Act 2003 regulates the offences for which an extradited person may be dealt with. It does not regulate the evidence which the prosecution may use to prove an offence that complies with the rule.

Accordingly, relevant evidence of conduct preceding the period for which surrender was authorised may be adduced to prove participation in a continuing offence during the authorised period. Questions of admissibility, procedure and trial fairness are for the courts of the requesting state. However, the particulars of the charge must confine the offence for which the person may be convicted to the period permitted by the extraditing state.

The applicant was extradited from Sweden to face one count of conspiracy to corrupt, contrary to section 1 of the Criminal Law Act 1977. Swedish limitation law prevented prosecution for conduct before May 2007. The Serious Fraud Office nevertheless wished to rely on evidence of earlier conduct as proof of the applicant’s continued participation in a conspiracy after that date.

At a preparatory hearing, the Southwark Crown Court held that the earlier evidence could be admitted, but required the particulars of the count to begin in May 2007. The applicant sought leave to appeal against the evidential ruling. The Serious Fraud Office sought leave to cross-appeal against the amendment to the particulars. The central issue was whether speciality prevented the use of evidence relating to conduct outside the period for which surrender was authorised.

1. Both applications for leave were refused. The judge was right to permit reliance on evidence predating May 2007, and right to require the particulars of the count to be confined to the period from May 2007.

2. Speciality, as preserved by section 146 of the Extradition Act 2003, concerns the offences for which an extradited person may be dealt with. It prevents the requesting state from trying a person for an offence different in its essential nature from that for which surrender was granted. It does not restrict the evidence which may prove a compliant offence.

3. This conclusion followed the established distinction in R v Aubrey-Fletcher, Ex parte Ross-Munro [1968] 1 QB 620, Welsh v Home Secretary [2006] EWHC 156 (Admin), and Beggs v HM Advocate [2010] HCJAC 27. The rule protects the requested state’s power to refuse extradition and its international rights. It does not create a separate evidential code in the requesting state.

4. Evidence of conduct before May 2007 could therefore be relevant to prove that the applicant continued to participate in the alleged conspiracy after that date. Its admissibility and any issue of trial fairness remained for the trial judge. The use of that evidence did not mean that the applicant was being dealt with for pre-May 2007 conduct.

5. Nevertheless, the offence charged had to respect the limitation imposed by the Swedish surrender decision. Restricting the particulars to the permitted period ensured that the jury could not convict the applicant for conduct outside that period. A judicial direction and a sentencing restriction would not adequately replace that protection.

• Court of Appeal (Criminal Division): Refused the applicant’s leave to appeal and the Serious Fraud Office’s leave to cross-appeal.
• Southwark Crown Court: At a preparatory hearing under section 7 of the Criminal Justice Act 1987, held that earlier evidence could be admitted but ordered the particulars of the conspiracy count to begin in May 2007.