Welsh & Anor v Secretary of State for the Home Department & Anor

Howard Welsh is a UK citizen aged 62, who lived for many years in the USA with permanent residency status. Lee Hope Thrasher is a US citizen, aged 51. The US Government seeks their extradition from the UK on a variety of conspiracy and substantive charges arising out of a complex advanced fee fraud involving over $31m, committed largely but not wholly in the US on US residents. It is alleged that over $20m of its proceeds have not been traced. Welsh and Thrasher contest the allegations.

They appeal against the decisions of District Judge Pratt given on 22^nd March 2005, which dealt with the initial stages of extradition under s78 of the Extradition Act 2003, and on 19^th April 2005 which dealt with the compatibility of extradition with their human rights under s87(3), and sent their cases to the Home Secretary. They appeal under s103 and seek orders for their discharge under s104 of the 2003 Act. These appeals raise issues as to form and procedure.

They also appeal under s108 against the decisions of the Home Secretary of 17^th and 19^th October 2005 to order their extradition. These appeals seek orders under s109 for their discharge by this Court, and raise issues as to specialty protection, broadly the protection for those extradited against trial or punishment for offences other than those for which they have been extradited.

Their extradition is governed by the Extradition Act 2003, pursuant to which the USA has been designated as a Category 2 country, but the relevant Treaty between the UK and the USA for the purposes of specialty protection remains the 1972 Treaty, as the 2003 Treaty has not been ratified by the US Senate.

The alleged and disputed criminal conduct underlying the extradition request can be summarised as follows. Between 1999 and 2004 the Appellants induced a number of US residents to pay substantial sums of money to various investment schemes by promises of high returns and security. These promises were disseminated in person, through seminars and the like, “missionaries” and promotional literature. The whole was cloaked in a quasi-religious or mystic garb. The mechanism which the alleged fraudsters used was the “corporation sole”, which it was claimed had particular powers enjoyed by an elite, the details of which had to be kept secret as they were proprietary interests. The individual investors became corporations sole, receiving from Washington State certificates of incorporation signed by its Secretary of State. The investment funds and registration fees were paid by the individuals into accounts maintained by the Appellants with corporate addresses in the Bahamas. The investors thought that their funds would be invested in the Turks and Caicos Islands. But the documents were fictitious and the monies were laundered via wire-transfers to US and off-shore accounts in various countries around the world, and into the hands of unknown conspirators. The early investments received the promised high rates of return. These were paid from the monies sent by the later investors so as to create the illusion that the promised returns were real and the investments safe, in order to induce others to send in their money. Excuses relating to changes in banking practice induced by terrorist attacks and an unjustified federal investigation were used to explain the later non-payment of the promised returns.

It is alleged that the Appellants left their property in Virginia Beach, Virginia not long before it was searched by investigators in August 2002, and thereafter concealed their whereabouts. They came to the UK. In August 2004, a Federal Grand Jury in the US District Court for the Eastern District of Virginia, returned a 63 count indictment against the Appellants. Warrants for their arrest were signed that same day. In November 2004 both Appellants were arrested in England upon provisional warrants of arrest issued by Bow Street Magistrates’ Court pursuant to s73 of the 2003 Act. They have been remanded in custody ever since.

The 63 counts included one count of conspiracy to commit mail and wire fraud, eighteen counts of wire fraud, seven counts of using a fictitious name, twenty-three counts of mail fraud, and fourteen conspiracy and substantive counts, variously described, relating to money laundering the proceeds of the other offences.

The indictment, consistently with US practice, identified the features of the offences which it would be alleged justified enhancements or increases in the sentence which would otherwise follow from the application of the Federal Sentencing Guidelines. These included the scale of actual and intended loss, the large number of victims who also included vulnerable persons, the misrepresentation that religious or charitable organisations were involved in the scheme, the relocation of the fraudulent scheme to another jurisdiction to impede law enforcement, the Appellants’ leadership role in the enterprise, the use of sophisticated money laundering techniques, and their attempts to impede the administration of justice. The last two factors were of some controversy in the application of the specialty rule.

The conduct underlying the counts was translated into eighty eight charges under English law for the extradition proceedings.

The US Government did not seek the extradition of the Appellants for the money laundering offences because they related to the laundering of the proceeds of what were alleged to be their own crimes. The Criminal Justice Act 1988, which was the applicable English statute, applied only to the laundering of the proceeds of the crimes of others. This was altered by the Proceeds of Crime Act 2002, but it was not in force at the relevant time.

The District Judge discharged half the charges as not disclosing an offence known to English law because of R v Preddy [1996] AC 815, HL. They concerned the alleged obtaining of money by deception, as opposed to procuring dishonestly the execution of a valuable security.

The Appellants raised six issues as to form or procedure which I shall deal with first. None of them are complex or sound. Mr Summers for the Appellants supported his submissions by reference to what Lord Hope of Craighead said in R (Guisto) v Governor of Brixton Prison [2004] 1 AC 101 at paragraph 41, that extradition procedures are to be strictly observed, and to what Sedley LJ said in Bentley v The Government of the USA [2005] EWHC 1078 Admin at paragraph 17, that the need for rigour was far more than merely technical, with the new streamlined extradition procedures.

I do not find difficulty in accepting those general propositions, but their application as support for the arguments addressed by Mr Summers is less clearly justified. The former case was concerned not with a mere formality but with whether or not the Court had jurisdiction to treat the extradition request before it for an accused person, as a request for a convicted person. The latter was concerned with the fact that the US had set out to show by reference to its statutes that MDMA was a prohibited drug; those which it submitted did not show that. It was for evidence to prove that US law did prohibit MDMA, counter-intuitive though it was recognised to be to contemplate that it did not. The context for those comments is not therefore one of support for technical and formal points as impediments to extradition, but one of recognition of the requirements of jurisdiction and for the proof of that which needs to be proved and cannot simply be assumed.

Mr Summers first contended that the procedure adopted did not comply with s78 (2)(d) of the 2003 Act because what purported to be arrest warrants were not arrest warrants at all. They had not been signed by a Clerk to the Court, nor by a Deputy Clerk empowered to sign on behalf of the Clerk. There was no evidence as to the status of the individual whose signature appeared on the warrants, save that she was not the Clerk. For an arrest warrant to be valid under the Federal Rules of Criminal Procedure, it had to be “signed by the Clerk”. Mr Summers accepted, as the US Government’s evidence made clear, that a Deputy Clerk could sign a valid warrant.

I do not accept this first contention. The task of the District Judge under s78 is to decide whether he has been sent warrants for the arrest of the Appellants. Although Mr Summers takes two other points about the content of the warrants, the documents in question are plainly warrants in all respects except for the signature issue. As to that, they bear the typed name of the Clerk and below that the signature and name of the signatory. No position is given for the signatory.

I regard it as clear from the position of the signature on the warrants that the signatory is signing on behalf of the Clerk. I would be prepared to infer that she is a Deputy Clerk in the absence of evidence to the contrary and I would not regard such an inference as conflicting with the approach in either of the cases cited above. Indeed, I regard it as obvious. But there is direct evidence that she is a Clerk to the Court, and by inference a Deputy Clerk, in the Affidavit in Support of the Request sworn by the Assistant US Attorney dealing with the case. He states in paragraph 78 that a Clerk of the Court signed the warrants. It is not necessary for the validity of a warrant that the position of the signatory be stated on its face, if it is provable by other material that the requisite signature is in fact on it.

Mr Summers’ second contention was that the warrants were invalid and hence not warrants for the purpose of s78, because they did not comply with another rule of the Federal Rules of Criminal Procedure. This requires a warrant to “describe the offense charged in the indictment”. Each warrant here, under the heading “brief description of offense” said “Conspiracy to commit mail fraud and wire fraud, et al.” The description of the statutory provision said to have been offended against also finished with the words “et al.” That was neither an adequate description of the offences, contrary to what the District Judge found, nor was there any basis for the assertion by the US Government that only one offence had to be shown on the warrant.

This is a wholly technical contention because it is not suggested that there is any lack of particularity about the request in general; the indictments and the warrants were served on the Appellants at the same time and they can never have been in doubt as to the scope of the words “et al” in this case. The difference between the service of a document with the list of counts attached by a staple, since there is no room for them all on the face of the warrant form, and the service of a warrant together with the indictment is not one to engage a requirement for rigour but rather distaste for meritless technicality. The two can be read together just as readily and be seen as part of each other. The purpose of the inclusion of the offences in the warrant is satisfied by the procedure adopted in this case. Mr Summers rightly did not press these two arguments.

His third submission was that the warrant in respect of Ms Thrasher was defective because in two places it referred to “him” and not “her”. There is nothing in this point. It was accepted that the argument did not go to the identity of this Appellant. She was identified by date of birth and gender on the reverse of the warrant. It is plain that the references to “him” on the warrant are typographical errors and that it does not require evidence from a witness to prove that. The argument is that it is an error which goes to the validity of the warrant in some other respect. I cannot see how this error can affect the validity of the warrant in any respect once it is accepted, as it inevitably was, that there was no doubt about the identity of the Lee Hope Thrasher in the warrant. This was an argument also but faintly pressed by Mr Summers.

The fourth submission was that the first count in the indictment, the conspiracy count, was not an offence known to US law and so fell foul of s137(2)(c ) of the 2003 Act. That provision defines an extradition offence. One of the requirements of an extradition offence is that the conduct which constitutes it must be punishable under the law of the requesting state. Count One alleged a conspiracy to defraud private individuals, whereas Title 18 of the US Code s371 only made it an offence to conspire to commit “any offence against the United States, or to defraud the United States…”. In other words under Count One it was not an offence against US law to conspire to defraud private individuals, and that was the allegation against the Appellants. Thus the offence alleged was not an extradition offence within s78 (4)(b). Other counts alleged frauds against individuals.

I do not accept this submission.It is contrary to the facts. CountOne alleges that the Appellants conspired to commit mail and wire fraud ie they conspired to defraud individuals through dishonest representations sent through interstate post or by means of interstate or foreign wire communications contrary to Title 18 USC s1343. This is an offence against the United States. The purpose behind the creation of such an offence is to found a Federal jurisdiction for offences committed within the US and indeed for those with a foreign component. The conduct alleged obviously falls within the scope of this section of the US Code.

The fifth submission also relied on s137(2)(c) and s78(4)(b) of the 2003 Act. Charge 88 alleged that the Appellants had forged an Article of Incorporation for a Corporation Sole with the intent that it should accepted as genuine by someone who would act to his prejudice upon it. There was evidence to support that allegation. That conduct was admittedly an offence under English law. It was submitted by Mr Summers that there was no evidence that that conduct constituted an offence under US law, there was no parallel US charge and no offence of forgery in US law. Hence, the requirement for dual criminality was not satisfied.

It was accepted by Mr Irwin for the US Government that there was no precise equivalent in US law to the offence of forgery in English law. The District Judge had relied on Title 18 USC Section 1343 which creates the offence of wire fraud, transmitting material in pursuit of a scheme devised for fraud. Mr Irwin relied on Section 1341 which makes it an offence to use the mail for the purpose of a fraudulent scheme which can involve, amongst other things, furnishing or procuring for unlawful use any counterfeit “obligation, security, or other article , or anything represented or intimated or held out to be” such a counterfeit article.

The US offences include the use of the mail in using the counterfeit article for the purposes of fraud. The US focuses on the use of the article. The English offence focuses on the forgery itself with the intent to use it for fraud. However it is clear that the conduct which constitutes the US offence of mail fraud in relation to forged instruments would constitute the offence of forgery in England. Accordingly the requirements of dual criminality in s137(2) are satisfied and I reject the fifth submission.

The sixth submission related to the need for precise equivalence between the US and UK offences, in the sense of requiring the ingredients of the foreign offence to constitute an offence in UK law. It is clear that there is no precise equivalence between wire and mail fraud in the US and UK offences. The question is whether that matters. That depends on the true interpretation of s137(1) and (2) of the 2003 Act. Mr Summers accepted that the Extradition Acts of 1870 and 1989 had not required any such precise equivalence. He said that the Fugitive Offenders Act 1967 had required such equivalence, as held in Government of Canada v Aronson [1990] 1 AC 579 HL. He submitted that the language adopted in the 2003 Act reflected that of the 1967 Act rather than that of the earlier Extradition Acts. It focused on the offence rather than upon whether the conduct constituted an offence under both countries' laws.

I do not accept this submission. It would be surprising indeed if, in an Act which was intended to simplify and streamline extradition procedures to EU and Category 2 countries, Parliament had introduced for the first time for extradition to those countries the language which led to what could be regarded as the somewhat technical approach in Aronson. It seems to me that the language of the Act focuses on whether the conduct which is said to constitute the foreign offence would also constitute an offence in UK law, rather than upon the legal ingredients of the offence. In any event, shortly after the conclusion of the arguments in this case, and in another US extradition appeal relating to wire fraud in which Mr Summers also appeared, and in which the same point was to be argued on behalf of the Appellants, it was accepted by Mr Alan Jones QC on their behalf that the point was no longer arguable in the light of a very recent decision of the House of Lords, Office of the King's Prosecutor, Brussels v Armas [2005] UKHL 67. This case concerned an extradition to Belgium under the 2003 Act. Although this precise issue was not directly raised, the House of Lords did have to consider Part 1 of the Act and the EC Framework Decision. Paragraph 16 in the speech of Lord Bingham, with which all their Lordships agreed, is of particular relevance in highlighting the continuation of the Extradition Act approach and the avoidance of technicality.

I turn from those submissions to the question of specialty. S95 of the 2003 Act prohibits the SSHD from ordering the extradition of a person to a category 2 country if there are no "specialty arrangements” with that country. Subsections (3) and (4) describe "specialty arrangements" as follows:

“(3)

There are specialty arrangements with a category 2 territory if (and only if) under the law of that territory or arrangements made between it and the United Kingdom a person who is extradited to the territory from the United Kingdom may be dealt with in the territory for an offence committed before his extradition only if-

(a)

the offence is one falling within subsection (4), or

(b)

he is first given an opportunity to leave the territory.

(4)

The offences are –

(a)

the offence in respect of which the person is extradited;

(b)

an extradition offence disclosed by the same facts as that offence, other than one in respect of which a sentence of death could be imposed;

(c)

an extradition offence in respect of which the Secretary of State consents to the person being dealt with;

(d)

an offence in respect of which the person waives the right that he would have (but for this paragraph) not to be dealt with for the offence.”

Thus a specialty arrangement may exist simply because the law of the requesting category 2 country meets the requirements of the subsections. It may exist through treaty provision. There is an issue in this appeal as to the scope for any ad hoc undertakings to be regarded as part of the "arrangements" for any particular case and if so, whether those given after the SSHD decision under appeal can be taken into account. The key question is whether the arrangements cover the requirements of the subsections: that is to say, that the person extradited should be "dealt with" only for an offence which falls within subsection (4).The SSHD's consent under (4) (c) is a post surrender consent.

The formal and general arrangements between the UK and US in relation to specialty are to be found in the 1972 UK-US Treaty, Article XII, in domestic force through the United States of America (Extradition ) Order 1976 ; SI 2144. Article XII provides:

“…(1) A person extradited shall not be detained or proceeded against in the territory of the requesting party for any offence other than an extraditable offence established by the facts in respect of which his extradition has been granted, or on account of any other matters, nor be extradited by that party to a third state –

(a)

until after he has returned to the territory of the Requested party; or

(b)

until the expiry of thirty days after he has been free to return to the territory of the Requested party

(2)

the provisions of paragraph (1) of this Article shall not apply to offenses committed, or matters arising, after the extradition…”

The as yet unratified 2003 Treaty is explicit in prohibiting punishment for a non-extraditable offence as well as the trial of a non-extraditable offence. That has long been the interpretation given by the US Supreme Court to language such as that found in the 1972 Treaty, eg Johnson v Browne 205 US 309, decided in 1907.It is not at issue but that the phrase "dealt with" in s95 of the 2003 Act covers both trial and punishment.

The US contends that it observes the specialty rule, as a rule of international law and comity, in its trial and punishment of those who are extradited to it. That is hotly contested in this appeal. In part that is an issue as to what the precise requirements of that rule are, for the US may interpret it differently from the way in which the UK does. But the true issue on an appeal under this Act on that ground is whether or not the requirements of the two subsections are met.

The essential contentions of the Appellants are that the US would act in breach of the specialty rule (1) by seeking, and on past experience obtaining, an indictment which superseded the one upon which the extradition request was based, and which in particular would contain counts relating to the money laundering offences upon which the US accepted that it could not seek extradition because of the double criminality rule, and which might also contain counts relating to other frauds not based on the facts underlying the extradition request, (2) by using the facts related to the money laundering to prove the wire and mail fraud offences, and (3) by increasing the sentences which the Appellants would otherwise face for the wire and mail fraud offences on the grounds (i) that those offences had also involved the money laundering activities upon which extradition had not been possible, (ii) that the conduct of the Appellants in the UK was also an aggravating feature of the offences, and (iii) that they had fled the jurisdiction and then contested their extradition.

The US denied that either its executive exercising its prosecutorial function or the judiciary in its judicial capacity breached or would breach the specialty rule and instead asserted its adherence to it. In part, it denied that it would act in some of the ways asserted and supported that by further undertakings, the relevance of which is disputed. In part, it denied that acting in other ways would constitute a breach of the specialty rule. However, as I have said, the key question under s95 of the 2003 Act is whether, either by law or by arrangement, the Appellants can only be tried or punished , ie "dealt with”, in the US for an offence within subsection (4).

Underlying Mr Summers' submissions was a general theme to the effect that the US habitually violated the spirit and purpose of the specialty rule. This was a comment drawn from the work of Cherif Bassiouni "International Extradition: United States Law and Practice" 4th ed 2002, p546. He was said to be a renowned expert on this topic. The Appellants' representations to the SSHD contended that US Courts "routinely ignore" the specialty rule.

I do not regard this general submission as remotely justified. First, if there had been a routine disregard of the specialty rule, I would have expected that over the decades of extradition to the US from the UK, and in particular from those countries with which the US enjoys a land frontier, the UK Courts and the Courts of other sending states would have refused extradition in decisions which would be available to us. The 1972 and 2003 Treaties would not have been agreed in the terms on which they were agreed. The issue does not arise out of the refusal thus far of the US Senate to ratify the 2003 Treaty. Second, the decision of the Supreme Court in Johnson v Browne, above, makes clear the adherence of the Supreme Court to the specialty rule; its decisions are binding on all lower Courts and upon the executive exercising its prosecutorial functions. In view of the nature of the submissions, it is useful to cite from the headnote to that case which faithfully reflects the judgment.

“While the treaty of 1842, with Great Britain, had no express limitation of the right of the demanding country to try a person only for the crime for which he was extradited, such a limitation is found in the manifest scope and object of the treaty itself and it has been so construed by this Court. United States v Rauscher, 119 U. S.407.

A person extradited under the treaty of 1899 with Great Britain cannot be punished for an offense other than that for which his extradition has been demanded even though prior to his extradition he had been convicted and sentenced therefor.

Sections 5272, 5275, Revised Statutes, clearly manifest the intention and the will of the political department of the Government, that a person extradited shall be tried only for the crime charged in the warrant of extradition, and shall be allowed a reasonable time to depart out of the United States before he can be arrested and detained for any other offense.

Repeals by implication are never favored, and a later treaty will not be regarded as repealing, by implication, an earlier statute unless the two are so absolutely incompatible that the statute cannot be enforced without antagonizing the treaty, and so held that the treaty with Great Britain of 1899 did not repeal §§ 5272, 5275, Rev.Stat.

While the escape of criminals is to be deprecated, treaties of extradition should be construed in accordance with the highest good faith, and a treaty should not be so construed as to obtain the extradition of a person for one offense and punish him for another, especially when the latter offense is one for which the surrendering government has refused to surrender him on the ground that it was not covered by the treaty.”

Third, no decision has been cited to us in which any US Court expresses itself in a way which suggests or could support an allegation of disregard for the specialty rule as they interpret it. They instead express themselves as bound by and as adhering to it faithfully. That applies to all the cases which have been cited to us in support of the proposition that the US will in various ways breach the specialty rule in respect of these Appellants. The very highest at which this submission could properly be put is that the interpretation or application of the specialty rule differs in the US from that which the UK Courts would adopt. That may be relevant to the application of s95 to this case but it does not justify the breadth of some of the academic or learned commentary and submissions addressed to us or the Secretary of State.

The US Courts treat the origin and purpose of the specialty rule as deriving from the state parties’ interests in extradition, and regard adherence to it as a matter of international comity and respecting foreign relations embodied in the treaty arrangements. The purpose is to protect the sending state against abuse of its discretionary act of extradition; Paroutian below. The US accordingly applies the rule even where there is no treaty obligation requiring it to do so. That means that the position of the sending state is regarded as of the highest importance.

It is rather less a rule which must be applied for the protection of an individual and it is clear that there is a divergence of practice or view among the various Federal Circuits as to whether a defendant has standing to raise issues of specialty or whether only the sending state can do so. Often the issue is considered without resolution of that point. But either way I can see nothing in that which would mean that the specialty doctrine is not applied or, more importantly, that the arrangements required by s95 are not in place.

The gravest of the particular charges mounted by Mr Summers was that the US Government would seek and the US Courts would uphold a conviction based on a superseding indictment which alleged offences for which extradition had actually been refused by the UK Government, and for which extradition could not be sanctioned by the UK Courts. In this case these were the money laundering offences which were not offences at the relevant time under UK law. If this submission were well-founded, it would indeed support his more general proposition. But the principal case upon which he relied, US v LeBaron 156 F.3d 621 (5th Circuit) 1998, not merely does not support his submission, it shows it to be completely wrong. It requires attention to be paid to the precise facts.

Mr Summers submitted that Mexico had agreed to the extradition of LeBaron on only one of two racketeering charges whereas he was convicted of two racketeering charges, and had refused extradition on a charge of conspiracy to obstruct religious beliefs, upon which he was tried and convicted. That is not what happened. The US indictment upon which extradition was sought contained fourteen counts relating to the murderous and criminal affairs of a sect. The Government of Mexico, with which an Extradition Treaty had been concluded in terms not materially different from those with which we are concerned, dealt with the requested extradition in a Resolution of Extradition, by reference to eight charges by which it characterised the fourteen counts of the US indictment. There was an obvious problem of aligning the charges upon which extradition was granted with the counts on the indictment. Mexico was asked by the US to send an explanatory diplomatic note which it did. By reference to the eight charges into which it had reformulated the fourteen count US indictment, it said that it authorised extradition on one racketeering "charge" and conspiracy to commit murder.

The upshot was that the US Government sought and the trial Court agreed to the dismissal of the ten counts on the indictment upon which they regarded extradition as having been refused. There was an obvious adherence to the specialty rule even before trial. Trial then proceeded on the remaining four "counts" for which it was thought that extradition had been authorised by reference to the two "charges" to be dealt with. Convictions were obtained on two racketeering counts and one of conspiracy to obstruct religious beliefs.

On appeal to the 5th Circuit Court of Appeal, the Court was concerned, p627, to see whether LeBaron had been prosecuted for additional counts or offences beyond those for which he had been extradited. That is the question raised by the specialty rule and adherence to it was the focus of the appeal. Following citations from two cases to which I shall have to return, Fiocconi v Attorney General of US 462 F.2d 475 (2nd Circuit) 1972 and US v Andonian 29 F.3d 1432 (9th Circuit) 1994, Garza, Circuit Judge, said :

“These cases suggest that the doctrine of specialty is concerned primarily with prosecution for different substantive offenses than those for which consent has been given, and not prosecution for additional or separate counts of the same offense. The appropriate test for a violation of specialty ‘is whether the extraditing country would consider the acts for which the defendant was prosecuted as independent from those for which he was extradited’. Id. at 1435 (citations omitted).

Moreover, we do not believe Mexico would consider the acts for which Aaron was prosecuted to be independent from those for which he was extradited.”

The importance of those comments is not that the US Courts second guess the attitude of foreign governments or Courts, still less do they go behind what has been authorised in the extradition. It is said in the context, as it makes plain, of the absence of any evidence that the Government of Mexico treated a US "count" as directly correlating to a "charge" upon which extradition had been granted. The numerical differences show that they were not the same. The Court, in perfectly intelligible reasoning, then explained that the language of the Mexican Resolution enabled a correlation to be made. It had clearly referred to the two racketeering "counts” in the US indictment as one "charge". The conviction on two racketeering counts thus reflected the single extradition racketeering "charge”. It is a very considerable misreading of the decision to suppose that the Appeal Court simply thought that another racketeering count could be added by reading "one " as "two", or that the Mexicans would not mind. That part of the decision shows a careful adherence to the specialty rule and to the extradition authorised.

As to the criminal conspiracy to obstruct religious beliefs, it is right that Mexico refused extradition for what was interpreted as the three substantive counts of obstruction of religious beliefs. But as the Appeal Court explained, Mexico's explanatory note had specifically authorised a prosecution under a provision of the US Code which the Court said had only appeared in relation to that offence. Accordingly it deduced that extradition had been specifically granted for that offence. It was a secondary and supporting point that there had never been an objection to that prosecution, and that the Mexicans would not regard it as a breach of faith to prosecute for conspiracy to obstruct religious beliefs on an indictment to conspire to commit murder, where the sole reason for the killing was the desire of the victims to extricate themselves from the cult.

What the decision pre-trial and on appeal shows is a concern to abide by the terms of the extradition authorisation and not to act in a way which would be regarded as a breach of faith as embodied in the Treaty obligations. For perfectly sound reasons, the Court concluded that both counts complained of, including the one said to have been refused for extradition, had been authorised as extradition offences. In so far as the submission rests on this case it is simply wrong. It illustrates the opposite position.

The second and related basis upon which Mr Summers submitted that the US routinely breached the specialty rule was that it would permit a superseding indictment to be returned against the Appellants alleging conduct which did not form part of the extradition request. The US would not permit the Appellants to leave the US before doing so and would not obtain the consent of the UK Government to such a course. This submission depends upon an understanding of decisions of the US Courts in relation to states other than the UK, with whom different treaty or diplomatic relations may exist. There is no decision which we have been shown in which this issue has arisen on an extradition from the UK. This may be because of the known attitude of the UK, but which may not be the same as that of other countries.

An illustration of the importance of the known attitude of the sending state can be seen in the decision of the Supreme Court in US v Rauscher 119 U.S. 407,7 S.Ct. 234 (1886), a case much cited in the extradition decisions of Federal Appeal Courts. Rauscher was extradited from the UK on a charge of murder and could not be tried on the lesser offence of unlawfully inflicting cruel and unusual punishment because that was a non-extraditable offence. The Supreme Court was very conscious of an earlier extradition from the UK in which there had been strong protest by the UK Government about the trial of an individual on a charge upon which he had not been extradited, and which had led to the refusal of another extradition request, unless a specific undertaking not to repeat that conduct was given. As described in Fiocconi, above p480, since the object of the rule was to prevent the US violating international obligations, “it becomes essential to determine, as best one can, whether the surrendering state would regard the prosecution as a breach.” The past attitude of the UK Government made its position clear and dictated the approach of the Court in Rauscher. So the US Courts’ approach to the issue of whether a prosecution would breach specialty is determined by whether or not the sending state would regard it as a breach of international relations or has objected on the basis of the specialty rule.

Before turning to the US case law on this aspect, it is worth pointing out that there is no evidence from the US authorities, and perhaps not surprisingly none from the Appellants, suggesting that there are any matters which could be alleged in a superseding indictment other than those which have been considered directly in this extradition request. This means that the assertion that there would be or could be a superseding indictment raising such matters against these Appellants, lacks any supporting factual basis.

I shall deal with the cases to which Mr Summers referred us because it is important to see how far the point he makes is actually established. In US v Paroutian 299 F.2d 486 (2^nd Circuit 1962), extradition took place from Lebanon, seemingly not on the basis of a treaty, but on a request which drew on an indictment issued in the Southern District of New York. The Lebanese Warrant of Extradition said that Paroutian was being returned to the US because he was accused of narcotics trafficking. He was tried under a later indictment issued by the Eastern District of New York which included two counts of receipt and concealment of heroin which were not expressly covered by the indictment sent to Lebanon.

The request had been supported by evidence of the search of the apartment for concealed drugs received by Paroutian, a search which formed the major ground of the appeal against conviction. The Court held that the question was whether or not the trial was for a “separate offense”, and instanced trial for murder as being trial for a separate offence in this case. The issue was not one of “some technical refinement of local law, but whether the extraditing country would consider the offense actually tried “separate””. It concluded that the Lebanese “fully apprised of the facts as they were, would not consider that Paroutian was tried for anything else but the offense for which he was extradited, namely, trafficking in narcotics.” There was no breach of specialty.

The issue of a superseding indictment or its issue from a different District was not of itself of any importance. The new counts were based on the evidence which accompanied the indictment. The added offences of concealment and receipt were clearly based upon what was found during the search of the apartment for the hidden heroin. But that search and its fruits were referred to in the evidence which accompanied and explained the extradition request. There was no issue but that they were extraditable offences, at least in the sense in the absence of a treaty, that Lebanon consented to extradition for narcotics trafficking and there was no suggestion that that was not an offence in Lebanon. So this case at least illustrates the refinement of an indictment to allege extradition offences disclosed by the same facts as those upon which extradition had been granted. In reality, the new offences of concealing the drugs which Paroutian received were part and parcel of the narcotics trafficking for which he was extradited. The Lebanese are said to have been fully apprised of the facts. So on its facts that case cannot support the Appellants’ point.

But I consider that the case goes further. There was no evidence of any specific limitation in the grant of extradition by Lebanon which affected its scope in a way material to what the US Courts did. Nor had there been any objection by Lebanon to what the US Courts had done. Nonetheless, and this is important, the Court still examined whether there was a breach of specialty. It did not do so by reference to what the US itself would think, but by reference to what it concluded would be Lebanon’s attitude. Considering the sending state’s attitude shows clear respect for the specialty rule. The Court rightly did not think that this was a matter for decision by reference to the technicalities of local law, though that also prevented Paroutian using the specialty rule as a means of imposing unwarranted technical rules in a case originating in extradition. The US did not regard it as a breach of specialty, in the absence of any express restriction or objection, to try someone for extraditable offences which were identified in the extradition request, albeit in the accompanying evidence and not in the extradition indictment, at least where those offences are of the same character as those described in the extradition grant. That shows respect for and application of the specialty rule rather than its breach, in the light of the way in which US extradition requests and indictments are framed.

It would be a considerable misreading of the decision to regard it as illustrating an approach to specialty of asking whether there has been any explicit objection to what is being done and treating the absence of objection as being the end of any specialty issue. The absence however of a need to show a prima facie case may limit the ability of US courts to adopt this line of reasoning in other cases, conformably with s95.

Fiocconi v Attorney General of the US 462 F.2d 475 (2^nd Circuit 1972) was the next case relied on by Mr Summers. As with Paroutian, the extradition, this time from Italy, was based on comity rather than treaty because narcotics crimes were not within the Extradition Convention between the US and Italy. A Massachusetts District Federal indictment of 20^th November 1969 alleged a conspiracy to import heroin into the US from 15^th September 1968 through 22^nd April 1969. The Italian Court decision directing the extradition specifically referred to extradition so that the two conspirators could face that indictment. However, after they had been returned to the US in October 1971, they were also charged under a further Federal indictment this time issued by a New York District Court, alleging substantive heroin trafficking charges. This was followed by a superseding indictment charging the two, and many others, with two substantive drug trafficking offences committed in May 1970, before their arrest in Italy, and a conspiracy to violate the narcotics laws from 1^st January 1970 through 4th January 1972. The Circuit Court of Appeals were dealing with a habeas corpus petition, at a time when the US had requested Italy to broaden the scope of the extradition order but had not received a reply. The reasons for the Court’s rejection of the petition were given after the two had been convicted.

The Court recognised that the issue here involved a step further than did its decision in Paroutian, for the superseding New York indictment alleged offences which were subsequent to those in the Massachusetts indictment which had been the subject of extradition. Nonetheless the Court took the view that the principles established in Rauscher, meant that the issue was whether or not the sending state would regard the prosecution as a breach of international obligations. In Rauscher the known and general attitude of the UK Government towards the trial of an extradited person for offences other than those for which he had been extradited had been determinative of the issue. There were other authorities supporting the need to form a view about the sending state’s attitude. It concluded that, in the absence of an “affirmative protest” from Italy, it would not regard the prosecution of the two for subsequent offences of the same character, as a breach of faith by the US.

It did not regard Italy as likely to have any interest in whether the superseding indictment was issued by a different Federal District. Nor in view of the convictions could it have any doubt about the sufficiency of the evidence for extradition. The terms of the US-Italy Extradition Convention were also relevant to this assessment of its attitude. The Convention precluded the trial of an extradited person for any crime “committed previously to that for which his… surrender is asked.” The Court pointed out that this did not preclude trial for an offence committed before surrender itself. The preclusion only related to those offences committed before the extradition offence was committed, and not to later ones, at least if they were of the same general character as those for which extradition had been granted. There were standard clauses which could readily have been adopted if a different preclusion had been intended. So the trial would not have violated the Convention, had it been applicable to narcotics offences. Hence the attitude of Italy, in the absence of an explicit view one way or another, was inferred from what it had agreed in the Extradition Convention.

The case exemplifies the US Courts’ approach of ascertaining the attitude of the sending state so as to prevent the trial of someone for an offence which it would consider outside its act of extradition. The US Courts do not in principle regard it as a breach of specialty to try someone for an offence which was different from the extradition offence or the conduct disclosed by the extradition request, at least if the new offence is of the same character as the extradition offence, but subject to two important provisos: first, that such a trial should not be excluded by the Treaty or act of extradition and second, that the sending state should not have objected or would not object to such a trial. The US Courts do not turn a blind eye to objections but seek, case by case, country by country, to ascertain the sending state’s attitude from the available materials. They do not adopt a simple view that positive assent should be inferred from an absence of objection. It cannot be said that what they concluded in the case of this extradition from Italy is what they would conclude in the case of an extradition from the UK. That would depend on the terms of the UK–US Extradition Treaty and what the UK Government or Courts said if there were to be an indictment for offences other than the extradition offences.

In US v Kaufman 858 F.2d (5^th Cir.1988), the Franks brothers had been indicted in January 1986 on a Louisiana Federal indictment for a conspiracy to import and for the actual importation of marijuana from Belize. In July 1986 they were indicted on a Texas Federal indictment relating to a different importation conspiracy concerning marijuana from Belize. The brothers were arrested in Mexico, a week after the Texas indictment was handed down and were extradited on the basis of the Louisiana indictment. They were tried on the Louisiana indictment offences; one of the two was acquitted and one convicted. Both were then transferred to Texas to face the Texas indictment. They claimed that this was a breach of specialty, and submitted that the Circuit Appeals Court should not follow the very similar case of Fiocconi, because it was in conflict with Rauscher, a Supreme Court decision.

The Circuit Court pointed again to the significance for the decision in Rauscher of the history of strong British objections over the years to the trial in the US of extradited persons for offences other than those upon which extradition had been ordered or which were not based upon the facts disclosed by such offences. The Supreme Court had adopted that approach even though there was no record of a formal British objection to the trial of Rauscher. That contrasted with the attitude of the Mexican Government which had provided no evidence that it objected at all to the trial of the Texas indictment. The Court commented that the evidence suggested that the Mexican Government was only too happy to have these brothers taken off their hands; it had been in issue at an earlier stage as to whether there had been an extradition at all as opposed to a simple “kicking out”.

The Court then further contrasted Rauscher with the brothers Frank by pointing out that the charge of inflicting cruel and unusual punishment was not an extraditable crime within the Anglo-US Treaty, but that that could not be said of the narcotics conspiracies in this case. The brothers were not citizens or residents of Mexico, and they had been involved in a crime contrary to Mexican law. The Texas offence was of the same character as that for which Mexico had extradited them. All of that added weight to the conclusion that Mexico had no objection and indeed no basis for objecting to their trial on the Texas indictment.

Again it seems to me that this case does not support the contention that the US would seek a superseding indictment or that the US Courts would permit a trial upon it, if there were evidence that the UK Government had objected or would object to it. The US Courts are simply not prepared to take the mere absence of specific objection or the absence of a Treaty based limit as a basis for concluding that every foreign government would regard such a trial as a breach of the international comity inherent in the act of extradition.

There is a real danger in taking quotes out of context and seeking to build upon them a case as to the attitude of the US Government and Courts which is in fact remote from the one which they would adopt to a UK extradition. They consider the basis for the extradition. Extradition from the UK is based on a treaty and now on the 2003 Act, which limit the cases for which extradition may be ordered in specific ways. The US Courts consider the evidence available as to the sending state’s attitude. They refer, by way of contrast to the cases which we are considering, to the known and accepted attitude of the UK towards the trial for other offences of those whom it extradites to the US. This is plainly seen to be different from that which at least some other extraditing states may adopt. That may explain the absence, so far as the cases submitted to us are concerned, of ones in which those extradited from the UK have faced superseding indictments in circumstances which Mr Summers contend that the Appellants could face, and which others extradited from other states may have faced.

The next case upon which Mr Summers relied was US v Abello-Silva 948 F.2d (10^th Cir. 1991). Abello was extradited from Colombia on two drug importation conspiracy charges, on a request which included a narration of the facts. He was tried upon a superseding indictment, which alleged the same offences but added further factual allegations focusing on the particular role of Abello, whereas the extradition indictment had been directed at several people. The superseding indictment referred to his links to several cartel members, expanded on the scope of his activities and detailed the mechanics of his drug smuggling operation.

There are passages in the report which are not entirely easy to follow; paragraph 3 on p1173 appears to be self-contradictory and the concept of specialty is in places referred to as if it were simply a question of sufficiency of evidence. But it is a judgment directed to a particular issue to which that was a directly relevant point. That was whether Colombian law or US law governed the scope of specialty law, where the issue related to whether it was a breach of specialty to try someone for the same offences but on a wider factual basis than that upon which he had been extradited. The Court set out the basis for specialty as a rule of international law: deference to the sending state’s interest in protecting its residents, forbidding the requesting country from trying the person extradited for more than was set out in the extradition request. Extradition took place subject to any limitation imposed by the sending or requesting state. But it concluded that it was US precedent which governed the application of the specialty doctrine and that treated the doctrine in terms of parallel offences and not parallel facts. It was not necessary for the extradition request to be the definitive document in a case against the accused; evidence used at trial could be withheld from the request.

The crux of the rule was whether the sending state has objected or would object to the prosecution. There was no basis for supposing that the Colombian government which had acceded to the extradition request would object to trial upon a stronger factual basis for the same offences. The decision treats the rule as requiring trial only on those offences which appear in the extradition request. Although it is more restrictive in that respect than some other cases, it is not a decision which supports any concern about specialty even if there were to be a superseding indictment.

In US v Andonian 29 F 3d 1432 (9^th Cir. 1994), Vivas, one of four defendants, was extradited from Uruguay on an original indictment and convicted on a post-extradition superseding indictment, the scope of which was said by him to breach the specialty rule. Much of the argument depends on the differences in the scope of the two indictments.

The original indictment contained twelve counts. The first alleged a drug trafficking and money laundering conspiracy. The next six alleged substantive money laundering offences, involving shipping currency between New York and Los Angeles on several dates between 14^th November 1988 and 12^th December 1988. The remaining five counts alleged substantive money laundering accounts involving the deposit of currency into bank accounts in Los Angeles between 15^th November 1988 and 14^th December 1988.

The superseding indictment alleged the same conspiracy as in Count I of the original indictment but as two separate counts. The conspiracy counts contained allegations of more overt acts than had been alleged in the original indictment, and more detail about the important role played by Vivas. There then followed fourteen substantive money laundering offences involving shipping currency from New York to Los Angeles; the date range was expanded to between 3^rd June 1988 to 12^th December 1988. Three of those charges were identical to three from the original indictment and three from the original indictment did not appear and so eleven were new. There were eleven substantive charges of money laundering by deposit; the date range was extended to between 27^th October 1988 and 20^th December 1988. Two counts were identical to those in the original indictment, three did not appear and nine were new. The added substantive offences reflected broadly the further details in the conspiracy counts.

It was argued first by Vivas that it was a breach of specialty to try an extradited person on additional charges of the same substantive offence in the absence of an affirmative statement of consent from the sending country.

The Court accepted that the test “for this case”, and the significance of that phrase is unclear, was whether the “extraditing country would consider the acts for which the defendant was prosecuted as independent from those for which he was extradited.” It took the view that the offences alleged in the superseding indictment did not constitute separate offences within the specialty doctrine. The Court specifically rejected the defendant’s contention that the government was required to present the superseding indictment to Uruguay, and to obtain its affirmative consent.

It distinguished another Federal Appeal decision which held that consent could not be inferred from silence because the offence in question there was not an offence in Pakistan; objection was inferred from the absence of consent. Affirmative consent was required only where there was an ambiguous extradition order which created a risk that the defendant would be tried for an offence which was unrecognised in the extraditing country. That was very different from Andonian in which the issue was whether Uruguay would regard prosecution for the additional counts of money laundering as a breach of the extradition treaty.

The Court then considered why Uruguay would not regard it as a breach. The US Court set out the considerable details which had been presented in the request, which was a recitation of the alleged crimes in narrative form ranging somewhat beyond the strict parameters of the counts. The Uruguay Court had held that extradition treaties must be interpreted in the most favourable light to the purposes for which they were created. The superseding indictment had not altered the nature of the scheme or of the offences. The nature of the substantive allegations in the new indictment were not just the same in general nature, i.e. money laundering but were of the same type i.e. shipping and deposit between the same places and into the same accounts. The superseding indictment just alleged more such events. Hence the US Court concluded that Uruguay would not consider that the additional acts were independent of those for which Vivas had been extradited.

If the Uruguay Court or Government had expressly objected to the trial, or if it had been known from their attitudes expressed in other cases, the US Courts would have dismissed the offending counts. This was not an instance of consent merely being inferred from silence but of a conclusion that there was actual consent inferred from all the circumstances. The absence of express objection was relevant but not determinative – the nature and type of the offences, their relationship to the extradition offence and to the conduct underlying the extradition, and the known attitude of Uruguay were all relevant factors in the overall inference that Uruguay in fact consented.

The final case to which Mr Summers referred us under this head was US v Puentes 50 F.3d 1567 (11^th Cir.1195). Puentes was charged in the original indictment, so far as material, with one conspiracy to import cocaine over the period 1982 to November 1988. Extradition was granted by Uruguay only on this count. A superseding indictment post-extradition alleged against this defendant a longer conspiracy period, lasting up to November 1991. He was convicted. One drug shipment of the five relied on occurred in this extension period of three years. Puentes argued that that breached specialty. Puentes also argued that because the affidavits upon which his extradition had been ordered related to one shipment, the drug importation conspiracy allegations should have been limited to that single instance and not extended to another three shipments in the original indictment period.

The Court considered whether the defendant had standing to raise a specialty objection: the doctrine of specialty meant that the extradited defendant could only be tried for those offences for which his extradition had been granted. Specialty was a means whereby the surrendering nation ensured compliance with its treaty and was thus an implicit limitation on the receiving nation’s ability to prosecute. The Court concluded that an individual could invoke the treaty provisions to challenge the court’s exercise of personal jurisdiction. But as those individual rights were derivative of the rights of the requested nation, the individual enjoyed such rights only at the sufferance of the requested nation. He could raise any objections which the requested nation might have asserted but that nation could waive its right to object to the treaty violation and thereby deny the defendant standing to raise the objection. The Court acknowledged that not all Circuit Appeal Courts agreed with that decision.

The Court then rejected Puentes’ assertion that the extradition order in respect of the drug importation conspiracy had been confined to the one shipment. It pointed out that the wording of the order simply referred to a conspiracy to import cocaine between certain dates. The extradition order said that there was evidence to show that Puentes had “at least” been involved in one shipment. That order did not support the defendant’s contention that extradition on the conspiracy charge was therefore limited to that one shipment. That was a misunderstanding of the purpose of the evidence submitted, which simply showed that there was a case to answer on the charge. It did not define the full scope of the conspiracy nor limit the evidence admissible to prove the conspiracy charge. There was no express or implicit limit on the offence for which extradition was ordered by Uruguay.

The extension of the conspiracy period and the addition of defendants was dealt with very briefly on the basis that neither substantially altered the substance of the offence for which Puentes had been extradited.

Properly understood, the use of the further shipments within the original timeframe of the conspiracy merely illustrates the way in which evidence may be admitted to prove the extradition offence. It was not confined to a conspiracy in relation to one shipment; it was a broad allegation of a drug importation conspiracy of which the particular shipment referred to was an instance. That is how the US Courts read the extradition request and its grant as a whole. I do not see that as a breach of the specialty rule. But if the UK Treaty or the 2003 Act were to preclude such a prosecution, or if the extradition were expressly limited in the way in which Puentes erroneously argued that the Uruguayan extradition had been limited, there is nothing in the decision to support the conclusion that that limitation would not be respected by the US Government or Courts.

It is difficult to know how much was made of the time period argument, since it is dealt with so very briefly in the context of a case which raised many issues beyond specialty. As I read the judgment, this extension was simply seen as part of the extradition offence of drug importation conspiracy rather than creating a different drug importation conspiracy offence. I do not consider that this offers any significant and sound support to the submissions of Mr Summers.

I should also refer to US v Diwan F.2d. 715 (11^th Cir. 1989) which was relied on in the representations. Diwan was convicted of mail fraud and conspiracy to persuade a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction. She contended that the conspiracy conviction breached the Extradition Treaty with the UK. At the extradition hearing, the US had contended that this conspiracy charge was mirrored in four violations of the Protection of children Act 1978. But the magistrate had dismissed the conspiracy charges because he took the view that the photographs were not indecent.

When she sought to have that part of the indictment dismissed pre-trial, the Justice Department sought confirmation that the UK Government did not object to the conspiracy charge. It replied in very clear terms that it had no objection. The Circuit Court held that that was the end of the matter because the defendant only had derivative rights in respect of specialty. The offences alleged would be extradition offences within s137 of the 2003 Act and consent to their trial could therefore be given. There may be room for debate as to whether the UK Government could have consented consistently with the Extradition Act 1989 on the grounds that the magistrates’ finding as to indecency meant that the offences were not extradition offences. That was not a matter for the US Courts however, and no issue as to the lawfulness of consent was raised in the UK Courts. This case should be seen as one demonstrating respect for specialty.

Overall, I consider that these decisions are consistent. They focus on the question of consent to extradition. They demonstrate that the US Courts draw a distinction between the need for affirmative consent where the offences are not crimes in the sending state and the justifiable inference of consent from what is known about the sending state’s view of the scope of its extradition orders, where that scope may be at issue in particular cases.

Some of the cases simply exemplify the failure of the argument that the sending state did not limit its extradition in the way contended. Some hold that consent existed in view of the way in which information had been presented to the Court or in which extradition had been ordered. Where the cases are not resolved on that basis, the US Courts infer what the position of the sending state is or would be, where there it is silence as to its position and uncertainty as to the scope of the extradition order. Sometimes there is silence even after a request for a specific answer has been made.

The US Courts do not infer consent merely because there is silence. They do not turn a blind eye to what are obvious problems in the sending state’s known attitude, whether from past extradition requests or from the particular case or Treaty involved. Rather, it seems clear to me, they adopt a realistic assessment of the sending state’s attitude, in recognition of the specialty doctrine as a principle of international comity and out of respect for a foreign state’s sovereignty. But the Courts do not treat it as a technical hurdle devised for the benefit of properly convicted criminals, enabling them to take points which truly belong to the sending state and which the Courts properly infer that the sending state does not take.

There is nothing in the cases which would justify the conclusion that the US Government or Courts would not respect the express limits in the UK-US Treaty or in the 2003 Act or in any judgment of this Court, even if they might conclude that for other states there would be no objection in parallel circumstances. There is nothing in the cases which suggests that, if a country requires affirmative consent in circumstances in which for other countries the US Courts would infer consent, the US Courts would ignore that requirement. There have been no cases cited to us in which a trial has taken place on the basis of inferred consent in a UK case, let alone one in which there was arguably doubt as to the position of the UK or as to the scope of the extradition order.

The application of the specialty rule in the US Courts is thus affected by the known views of the sending state. If a superseding indictment alleged offences which were not covered by the terms of the 2003 Act, the US authorities would not prosecute in breach of those provisions. The provisions of s95 are satisfied in relation to prosecutions.

Where the consent of the Home Secretary is required under s95 (4) (c) for prosecutions which fall outside the scope of s95 (4) (a) (b) and (d), that consent is not to be inferred. It must be expressly given on the proper construction of s95. The absence of such consent to a prosecution for which it is necessary would mean that the trial would be a breach of the specialty rule. But I do not see any basis for supposing that that requirement would be ignored by the US authorities. Instead I see a conscientious respect for what the sending state and its Courts say. Accordingly, I reject both aspects of the first of Mr Summers’ submissions.

The second contention raised by Mr Summers was that the US Courts would permit the extradition offence to be proved by evidence relating to offences upon which extradition had been expressly refused. That proposition is generally borne out by the authorities to which Mr Summers referred us. But the US Courts do not regard that as a breach of the specialty rule because the rule is not seen as regulating the manner in which the extradition offence is proved.

I have seen no UK authority which suggests that the specialty rule is breached in these circumstances. The specialty rule does not limit, in my view, the evidence which can be admitted to prove the extradition offence and the rules which govern the admissibility of evidence are those of the trial state. I see nothing in this point.

It is worth mentioning two cases briefly because they illustrate the point and the way in which the US approach to specialty can be misunderstood. These cases were referred to in support of the earlier submissions in the representations made to the Home Secretary by the Appellants.

In US v Thirion 813 F. 2d 146 (8^th Cir.1987), Monaco agreed to extradite Thirion to the US under a Treaty, but did not agree to extradite him on the conspiracy count in the indictment upon which the request was based. The conspiracy count was included in the indictment upon which he was to be tried but the jury was instructed not to return a verdict on that count because of the specialty rule. The charge was not dismissed because if Thirion were to remain in the US for one month after being free to leave, he could be tried on that count in accordance with the Treaty.

The jury was instructed that Thirion could be found guilty of the substantive counts upon which he had been extradited on the basis of an American common law rule of co-conspirator liability, derived from the decision in US v Pinkerton 328 U.S. 640, 66 S. Ct. 1180, 90 L. Ed. 1489 (1946). There was a lengthy discussion of the relationship between conspiracy, liability of aiders and abettors as secondary parties and the similar Pinkerton liability of co-conspirators. Proof of participation in a conspiracy was proof of a crime in its own right, but proof of participation in a conspiracy was also evidence of the criminal intent to commit the substantive offence. No conspiracy count was necessary for Pinkerton liability to be proved.

US v Gallo-Chamaro 48 F.3d 502 (11^th Cir.1995) is an important case in understanding the approach of the US Courts to specialty. Gallo’s extradition was requested from Colombia pursuant to a Treaty. Extradition was granted on five counts: importation of cocaine, conspiracy to distribute cocaine, and three substantive counts of distribution of cocaine. Extradition was refused on the other counts because they had no parallel in Colombian law. These were offences of aiding, abetting, counselling or procuring the commission of the substantive offence, which in the US Code meant that the secondary party was punishable as a principal. They were nonetheless included in the indictment, but were removed upon the defendant’s motion because of the specialty rule. This illustrates the US Courts’ respect for the terms of the extradition.

However, the jury was given the Pinkerton instruction on co-conspirator liability on the importation and distribution counts.The jury instruction in a Pinkerton co-conspiracy case is to the effect that the co-conspirator is guilty of the substantive offence even though he does no more than join a conspiracy, provided that the offence was reasonably foreseeable and was committed in furtherance of the conspiracy. Gallo was acquitted of the conspiracy count. He alleged at sentencing but could not prove a diplomatic objection to the Pinkerton direction.

The Court adopted the Thirion reasoning. Gallo was only tried for the offences for which he had been extradited. The doctrine of specialty did not affect the evidence upon which a defendant could be tried for the extradition offence. Membership of a conspiracy was an evidential fact tending to prove guilt of the related substantive offences. There was a difference between liability on the basis of the Pinkerton direction and aiding and abetting although they had a common jurisprudential ancestry. Aiding and abetting was a broader concept, and the fact that a case might be put to the jury on either basis was irrelevant to the specialty rule. Pinkerton was seen as narrower because it required the defendant’s participation in a conspiracy. The Court therefore rejected the argument that the US had breached the prohibition on trial in the Colombian extradition order.

The Court accepted that in principle the doctrine of specialty was different from the rule of double criminality, but was not prepared to entertain the argument about double criminality, because the issue had not been raised before the lower Court and no facts had been found. It is clear that not all arrangements for extradition are on the same footing as those between the UK and US.

The Defendant presented a Colombian Diplomatic Note on his motion for a new trial. It protested at the application of the Pinkerton doctrine. The Note was roundly rejected as having “no persuasive or precedential value”: “Although extradition agreements and the specialty doctrine undeniably control the United States courts’ jurisdiction over foreign defendants such as Gallo, these international principles of law cannot be “construed to permit foreign intrusion into the evidentiary or procedural rules of the requisitioning state.””

The Note was dealt with in a fairly cavalier manner but not in my judgement in a way which proves a breach of specialty. The US Courts do not regard the Treaty or other extradition arrangements as impinging on the procedural or evidential rules by which the extradition offence is tried. The Note therefore simply did not bite on any issue on which the views of the sending state had any legitimate role. The case shows that a refusal of extradition does not mean that the facts relevant to the offence for which extradition has been refused are expunged from existence; they can still be used to prove the offence for which extradition has been granted. Whether that offence, as defined by the requesting state, meets the rule of dual criminality is another issue. There was no sufficient basis for raising that issue in Gallo on appeal for the first time.

These decisions show that the factual premise for Mr Summers’ argument is correct; US Courts admit evidence of offences for which extradition has been refused. But neither of these decisions support the contention that there is a breach of specialty in the way in which the US courts approach the procedural or evidential requirements imposed by extradition when trying extradition offences. For my part, I consider that the issue of what evidence is admissible to prove an extradition offence is a matter for the trial states and is not a matter of specialty or international comity. There is nothing in the second contention of Mr Summers.

Mr Summers’ third substantive contentions related to the way in which the Appellants would be sentenced if convicted. His first argument under this head was that the Appellants would be punished for money laundering offences upon which extradition has been refused. The facts of those offences would be used to increase or “upwardly enhance” the sentence which the Appellants would receive for the extradition offences. These aggravating factors would also be proved to the civil standard and not the criminal standard. The relevant factors had already been identified by the Grand Jury in its indictment under that very head. This would be a breach of specialty because punishment for a non-extradition offence was as much a breach of the Treaty as was trial for such an offence. Both were ways of “dealing with” a person.

The US Courts’ position can be seen in a number of cases. The evolving jurisprudence of the Supreme Court on mandatory Sentencing Guidelines at State and Federal levels means that a number of the precise facts might in future be different and I shall revert to that point.

In US v Lazarevich 147 F. 3d 1061 (9^th Cir. 1998), Lazarevich was extradited from the Netherlands on charges of making false statements on the passport applications of his children. Extradition was refused on two charges of child abduction because he had already been tried and convicted on those charges in a Belgrade Court. Following conviction in the US on the extradition offences, he was sentenced but his sentence was increased from what it otherwise would have been, because the false applications had been made in order to facilitate the commission of the child abduction offences of which he had been convicted in Belgrade. That affected his criminal history category in the Sentencing Guidelines. The question for the Court was whether he was being punished for the child abduction offences.

It concluded that he was not being punished for those offences, in the light of Supreme Court authority, and the extradition context did not require a distinctive approach. The Treaty had to be interpreted in the light of the long-standing practice of the US of considering uncharged relevant evidence in sentencing, a practice pre-dating the foundation of the state, which gives it an English colonial ancestry. An interpretation of the Treaty which precluded that practice would be inconsistent with the intentions of at least the US as a Treaty partner. The long history of the practice meant that the Treaty should be considered as having contemplated that the US would follow its practice. It also said that it could find no evidence in the specific record for the case that the Netherlands wished the US to depart from its sentencing practice were extradition to be granted.

I do not regard this case as evidencing the very broad proposition put forward by Mr Summers that the US punished those extradited to it in defiance of the specialty rule, on the basis that the sending countries were all on notice that it would do so. It shows that the US regards offences in respect of which extradition has been refused as capable of aggravating sentence but does not regard that as a breach of specialty. It interprets Treaties in the light of its well-known practice and assumes that the other party would have objected to that practice in the Treaty or in the extradition order if that practice were regarded by the other party as objectionable. The fact that extradition was refused did not signify that the Netherlands regarded or would regard the reasons why Lazarevich made the false passport applications as irrelevant to the sentence for those offences, or a breach of the Treaty. Thus it did not ignore the Treaty, and press ahead in breach of it.

Nor can I see on the facts here that the specialty rule was breached. That rule does not prevent the sentencing Court having regard to the factors which are relevant to sentence for the extradited offence. One obvious factor is the purpose for which the offence was committed. Here it was the precursor to child abduction. That is relevant to the gravity of the offence of making false passport applications. The specialty rule is not a straitjacket for imposing an unreal approach to the degree of criminality in the extradition offence. I would be very surprised if the UK Courts were to adopt a different approach and I have seen nothing to suggest that they would. Of course, the precise levels of sentencing and the significance of aggravating and mitigating factors will vary from country to country. But that variance does not betoken a breach of specialty.

It might have been possible to show that the Belgrade sentence for child abduction had been increased because of the planning that went into it through the false passport applications, though there is no evidence that that happened here. If it had happened, how to reflect that would be a matter for the sentencing Court on the second occasion. There would be scope for debating what the totality of sentence should be for the related offences, but that might be no more than a reflection of the arguments about totality where offences could be dealt with by concurrent or consecutive sentences. I do not think that the later decisions of the Supreme Court would alter the essence of that decision, although they would give the sentencing court greater discretionary powers to avoid double sentencing.

In US v Garcia 208 F.3d 1258 (11^th Cir. 2000), Garcia was extradited from Canada on charges of distributing marijuana, possession of marijuana and the use of a firearm in connection with those offences. He pleaded guilty. Those charges related to shipments from Texas to Florida. His sentence was increased by reference to shipments from Louisiana and the murder of his Florida distributor.

The Court said that the question of whether the specialty rule was breached depended on the law of the US and the laws of the sending state were relevant but not “controlling“. It concluded however that Canada was well aware of the additional conduct and the sentencing procedure, and had acquiesced in it. I take that to mean that there was no explicit objection, and that the Treaty did not preclude this sentencing process.

Again, the Court said that the question was whether the operation of the Guidelines caused the defendant to be punished for offences other than those for which extradition had been granted. That I would agree is the question. The issue is as to how it should be answered.

The Court said that the short answer was that the defendant was not being punished for any other offence. The consideration of other conduct relevant to punishment for that offence was part of the sentencing process. At no stage did specialty require that the extradition offence be treated in a vacuum. The specialty rule did not “restrict the scope of proof of other crimes that may be considered in the sentencing process. The distinction is thus drawn between proof of other crimes as a matter germane to the determination of punishment for the extradited crime and proof of other crimes in order to exact punishment for those other crimes. Only the latter course is forbidden by the rule of specialty.”

The report does not reveal how much of the total sentence of 30 years was enhancement for the additional shipments and the murder.

It certainly seems alien to English criminal procedure that the sentence for one offence can be enhanced by reference to matters so serious as those engaged here without a trial, and that is a matter which had concerned the Supreme Court, in the context of mandatory increases above the standard statutory range.

But that is not the relevant issue. The issue is whether the extradited person is being punished for an offence other than that for which he was extradited. The murder related to the Florida shipments which were the subject of the extradition. The Louisiana shipments were of the same drug and showed a persistent course of conduct. These other events could distinguish him from other traffickers because they showed that he used violence to keep his distribution gang in line, and that he was not a one-off offender. Although that is not how the UK Courts would have approached the case, I do not think that the US Courts are punishing the defendant by a side wind for an offence other than that for which he is extradited. Nor are they engaged in a logically fallacious reasoning process. It is possible to disagree with its merits or effects, but the approach is a legitimate one to what constitutes punishment for the offence of which someone has been convicted. In a domestic US case, in which the same procedure is adopted, they are clearly seeking to punish the defendant for the crime of which he has been convicted. The fact that they can take a broader approach to what is relevant to sentencing than the UK Courts might do, and adopt a different procedure for determining facts does not mean that there is a breach of specialty. They are still punishing the defendant, and certainly on their legitimate perception, for the offence for which the defendant has been tried, the extradition offence in an extradition case.

In US v Garrido-Santana 360 F.3d 565 (6^th Cir.2004), the Defendant was extradited from the Dominican Republic on one count of possessing cocaine with intent to distribute it. He had breached his bail in going to the Dominican Republic, and before he was extradited a superseding indictment added a count relating to that offence. But that was not an extraditable offence and he was not tried for that offence. The issue was whether it was a breach of the Treaty of extradition for his sentence for the cocaine distribution to be increased because of that failure to appear, an “upward enhancement” mandated by the Sentencing Guidelines. The Court assumed that the Treaty prohibition on trial implicitly prevented punishment for the failure to appear.

It applied the approach of the Supreme Court in Witte v US 515 U.S.389, 132 L. Ed. 2d 351, 115 S.Ct. 2199 (1995). This held, in a non-extradition context, that consideration of “related criminal conduct to enhance a defendant’s sentence for a separate crime within the authorized statutory limits does not constitute punishment for that conduct.” So where a sentence for attempted possession of marijuana with intent to supply had been “upwardly enhanced “ to take account of cocaine importation, there was no second attempt to punish the defendant for that cocaine offence, no double jeopardy , when he was actually tried for that cocaine offence. Similarly escape attempts were criminal offences but an upward enhancement of the sentence for another offence on account of the escape attempts did not constitute double punishment. That was because the punishment was for that other offence and the escape attempt was an aggravating feature of the criminal conduct which was being punished.

Accordingly, there was no breach of specialty because the US was not punishing the defendant for the failure to appear. It was punishing him for the possession of cocaine by reference to related criminal conduct, relevant to the gravity of the offence.

The case illustrates the US Courts’ view that the doctrine of specialty, in its scope and application in US courts, is governed by US law and not by the law as applied in the sending state. They are prepared, as other cases show, to accept the sending state’s position on the scope of the extradition order. But it seems that they may take a different view of the role of the sending state’s position when it comes to sentencing, at least in the absence of clear objection. There is a theme that treaty partners know of the way in which the US Courts approach sentencing and if that had caused serious reservations to the other state party, the position would have been clarified in the treaty itself.

It would also be consistent with what is now the advice in the Guidelines for a judge in the exercise of judicial discretion to increase the sentence which would otherwise be imposed by reference to aggravating factors which can include conduct which could have been the subject of a separate charge. That is not in dispute. It is also clear that the US sentencing process permits account to be taken of matters which have been the subject of a trial and acquittal. The Supreme Court held that this did not violate the double jeopardy rule in US vWatts 117 S.Ct. 633 (1997).

The sentence for an extradition offence can be increased by reference to aggravating factors which could have been but were not the subject of a separate charge in the extradition request, or by reference to aggravating factors which could not have been the subject of charge in an extradition request because of the rule of double criminality. The US Courts adopt the position that they are sentencing for the extradition offence by reference to all the material circumstances and not for an offence for which extradition would have been or was refused permission. Thus, in the eyes of the US Courts, there is no breach of the specialty rule.

This case supports the proposition that the US Courts would take into account in the sentencing of the two Appellants, if convicted, any proven allegation that they had laundered money which was the proceeds of their crimes even though that is a separate offence in US law and such laundering was not an extraditable offence. They would not do so in defiance of specialty but because they did not see specialty as precluding it. They would not see that as punishment for money laundering but as part of the punishment for the extradition offences.

There is a specific instance of the US Courts’ approach to the diplomatic intervention of the sending state in the punishment of the defendant in US v Baez (2003) US App Lexis 23181, 2^nd Cir. 14^th November 2003. Restrepo was sentenced to life imprisonment on a variety of grave offences following his extradition from Colombia. The US Government had assured the Colombian Government that Restrepo would not face the death penalty. It had also assured the Government that it would not seek life imprisonment and that if that were imposed, it would formally request the Court to commute life to a term of years. A life sentence was imposed and the US Government sought its commutation. That was refused and the Court held that it was not obliged by the assurance to impose a term of years. It also took account of uncharged crimes.

It rejected the view of the lower Court that judicial independence required it to ignore the note, holding that there was a delicate balance to be struck between the court’s sentencing discretion and the principles of international comity involved in specialty. Deferential consideration should be accorded to the limitations imposed by extraditing nations and, in evaluating those restrictions, a court should not elevate form over substance. Sentencing discretion should be tempered with deference to the substantive assurances made to the extraditing nation. This was but an instance of the classical deference of the courts to the executive in foreign policy matters, for it could assist in securing future extraditions if the assurances given by the executive were observed by the Courts. But the Appeals Court upheld the life sentence.

There has been a long-standing controversy in the US as to whether the US Sentencing Guidelines, which counselled or required certain factors to lead to increases in sentence up to the permitted maxima were unconstitutional, on a variety of grounds. These included the constitutional position of judges and the determination of facts other than by jury trial or on the criminal standard of proof. These Guidelines were seen as a straitjacket to sentencing. They have been dealt with in a series of cases. They were not considered in the extradition context but those decisions are said to have ramifications for extradition and specialty.

In Apprendi v New Jersey (2000), 147 L.Ed.2d. 435,120 S.Ct. 2348, the defendant pleaded guilty to possession of a firearm for an unlawful purpose, which carried a prison term of five to ten years. The trial court concluded that the defendant’s conduct had been racially motivated and violated a specific state “hate crime” law and imposed a twelve year sentence. The Supreme Court set aside the enhancement on the grounds that “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” As in other cases, the Court concluded that the fact that the enhancement had been labeled as a sentencing factor, or might at first blush look like that as a matter of statutory construction, was irrelevant. In reality there were two separate crimes and the procedural safeguards of a jury finding beyond a reasonable doubt were constitutionally mandated. Another instance was where sentences were increased by five year blocks for “car-jacking” according to the gravity of the injuries caused.

In Blakely v Washington (2004), 159 L.Ed. 2d 403, 124 S.Ct. 2531, the defendant pleaded guilty to kidnapping his estranged wife for which the standard range sentence prescribed by a combination of state statutes was 49 to 53 months. A series of factors accumulated to give the range, including that a firearm was used. An exceptional sentence of 90 months, ie more than three years more was imposed because of a judicial determination that he had acted with deliberate cruelty. The Washington legislation permitted departures from the standard range where there were exceptional circumstances.

Apprendi was applied. The necessary facts had not been admitted on the plea and no jury had found the facts necessary for the sentence to be increased beyond the permitted standard range. The Sixth Amendment did not entitle the judge alone to find facts necessary to take the sentence beyond the maximum otherwise permitted by the state legislation. It took the view that if a fact was essential to the punishment, the truth of that accusation should be found by a jury to the proper criminal standard. The Court drew a sharp constitutional distinction between what facts were proved on the plea or jury verdict and what further facts were required to be found to mandate a departure from the standard range. It was the latter which the judge alone could not find or which could not be proved only to the civil standard. The Court also rejected in its discussion of the dissenting opinion the notion that such sentence enhancements for obstruction of justice through perjury at trial were permissible.

The language of the Court suggests that the alternative to the process which it rejected as unconstitutional was jury trial but that does not mean that it had to be a formal trial following a Grand Jury indictment, arraignment, and jury selection. It meant that the jury and not the judge would have to deal with the facts at a specific sentencing hearing.

That left the issue of whether or not these decisions affected the Federal Sentencing Guidelines. It had been held in US v Pineiro 2004 US App. Lexis 14259 Fifth Circuit, that the Apprendi decision did not apply to them, and only applied where the state statute created a maximum which was then departed from upwardly. This appears not to have been an uncommon approach by Appeals Courts to the Federal Guidelines, particularly as the Supreme Court had declined to say whether the decision impacted on them.

But in US v Booker 125 S.Ct.738 (2005), the Supreme Court held that the Guidelines were in part unconstitutional. There were two cases before the Court. In the first, Booker’s, the sentence authorized by the jury verdict was 210 to 262 months in prison, a maximum of 21 years 10 months. The judge held a sentencing hearing at which on the preponderance of the evidence, he found facts, related to the quantity of drugs involved, which mandated a sentence of 30 years which he then had to impose under the Guidelines. The Federal Appeals Court, applying Apprendi, had required the judge either to sentence Booker within the 21 years 10 months maximum or to hold a sentencing hearing before a jury. The Prosecutor appealed against that decision. In the second, Fanfan, the District Judge found facts which would have mandated a sentence of 15 to 16 years but imposed a sentence within the 78 months maximum authorized by the jury’s verdict. This came before the Court on a prosecutor’s application.

The Court applied its decisions in Apprendi and Blakely to the Federal Guidelines. The particular problem arose because although the sentences in these cases were between the statutory minima- maxima for those offences as laid down by Congress, the Sentencing Reform Act of 1994 had empowered a Commission to make what were called Guidelines but which Courts had to apply. The structure was that there was a narrow standard range, and provision for upward departures from that range by reference to various aspects of the criminal’s conduct. Those departures had to be made because the application of the Guidelines was mandatory. In order to apply them, the judge had to make findings of fact about the enhancement or departure factors. It was the mandatory character of the enhancements which led to the conclusion that they should not be distinguished from offence ingredients which had to be proved to the criminal standard and to a jury, and hence to the conclusion that they were unconstitutional as they stood. The Court’s opinions contain many differing emphases and views on a variety of points.

The majority remedy was to excise those parts of the SRA which made the application of the Guidelines mandatory and gave to the prosecution a full right of appeal if they were not applied. The Court rejected an alternative remedy of making the SRA compliant with the Sixth Amendment by introducing jury trial for the sentencing facts. It is clear that the Court expected the sentencing courts still to take account of and give considerable weight to the factors which the Commission required them to consider. So an enhancement could be found to be warranted yet the judge could now leave the sentence within the standard range if he thought it justified and gave reasons for that. He still would be unable to impose a sentence outside the specific but very wide range usually laid down by Congress. Judges were to find the sentencing facts.

I do not understand the Court to have held that any of the factors which were previously taken into account were inadmissible, whether uncharged when it could have been or even if there had been an acquittal in respect of it. The issue was an important one but essentially limited to the mandatory nature of what the judge had to do in consequence of his findings. Whether the factors taken into account in sentencing before Booker led to a breach of specialty or not, that position is unchanged by that decision. So although the decision may affect some of the concerns expressed to us about US sentencing practice, it does not do so in a way which bites upon the specialty issues.

This understanding of Booker receives some support from a decision of the Fifth Circuit Court of Appeals in US v Mares 402 F.3d. 511, 2005 US App Lexis 3643. The decisions of a number of other Circuit Appeals Courts post Booker are considered in it. It was the binding nature of the Guidelines, to find facts and once facts had been found to apply the specified increments above the standard level, which created the constitutional issue because it in effect made the finding of those facts matters which altered the obligatory minimum and maximum level of sentencing and hence were equivalent to ingredients of the offence. Once the Guidelines had been made discretionary, that point fell away and the judge now has to find all the sentencing facts and may do so on the balance of probabilities. This would include upward departure factors, as well as exceptional factors outside the Guidelines.

I now turn to the application of the Act of 2003. The first question which arises for this court is whether that approach to punishment falls within the limits of s95. The second question is whether, if not, there is a specific arrangement applicable to this case, to which we can have regard, which would bring the arrangement overall within the scope of s95.

The effect of s95 is to impose a prohibition on extradition where the conditions it contains are not met. In my judgment, it does require the English Courts to reach their own view as to whether or not the practice in the USA amounts to “dealing with” someone, which includes punishing him, in a way prohibited by s95. It does not permit the UK simply to say that a practice is not regarded as falling foul of the specialty doctrine by the USA and therefore does not fall foul of the prohibition in the Act. It is not permissible simply to adopt the USA’s view of what offences are being punished.

However, the language of the Act has to be applied to many treaties and foreign justice systems which will differ from each other as well as from those of the UK. It is not intended, I believe, to require the imposition of peculiarly English or UK sentencing practices before extradition can occur. Reaching an answer on the scope of “deal with” in relation to extradition and punishment demands a purposive and flexible approach, which must be capable of accommodating the reasonable range of sentencing practices and values which other countries adopt. The recognition of important technical requirements is not the same as the erection of technical hurdles wherever ingenuity can manage it. A Court may properly be reluctant to adopt a construction of the Act which would allow those who flee a jurisdiction to gain an unwarranted reward for their flight, because of the routine and justifiable sentencing practices of the jurisdiction which they seek to evade.

I also judge it to be significant that the Act is not intended to bring about profound changes in extradition arrangements in a way which would add a novel and significant hindrance to extradition. If there are radical changes they are aimed at making extradition a less time-consuming and technical area of international co-operation. The Act cannot have been intended to halt extraditions to the USA on the basis of a sentencing practice which its case law suggests has been in place since before its independence. I see force in the approach of the US Courts that if this sentencing practice was seen by the UK or other countries as breaching Treaty obligations, there would have been a clarification in the superseding Treaties, but instead there is nothing which excludes that practice. (The addition of the express prohibition on punishment for a non-extradition offence makes explicit what the US Courts have always accepted was implicit in extradition treaties which prohibited trial for certain offences.) I have seen nothing in any UK or USA case to show that the UK has ever regarded this long-standing practice as a breach of a Treaty or of specialty.

For my part, I do not consider therefore that the absence of an arrangement which would prevent the extradited person being punished for the extradition offence in the way in which he could be under the now discretionary USA Sentencing Guidelines shows that the requisite arrangement for s95 is not in place. Such a person is not being “dealt with” within the scope of that phrase in the Act for an offence for which he has not been or could not have been extradited. He is being “dealt with" for that very offence by reference to conduct which is relevant to the gravity of the way in which he committed the offence or to the offending behaviour revealed by it.

I would accept that the US Courts appear to range more widely than would the UK but that does not take the approach outside the concept of “deal with” in an extradition Act. But this is a matter of degree. UK sentencing practice permits sentences to be aggravated on account of factors which could have been charged as separate offences, e.g. the extent of planning behind the commission of the substantive offence which could have been charged as a conspiracy, the procuring of an alibi found to be false on the jury’s verdict which indicates the attitude of the offender though it could lead to a separate charge, the disposal of a weapon which could be charged as an offence related to the obstruction of justice or could be the basis of a possession offence, or disposal of a body which could be seen as obstruction of justice or a separate offence aggravating a homicide sentence. The reason for this practice may be to simplify the indictment; the details may emerge in the trial. The jury do not find the facts. I would be surprised to hear it suggested that practice described as punishing someone for a crime which has not been proved. It is punishing him for conduct relevant to the crime which has been proved.

In this particular case, I can see no objection to the sentencing court taking into account the fact that the conspiracy, if proved, was sufficiently sophisticated to involve the removal of its proceeds from the jurisdiction, and that dispersal among various jurisdictions from which they have not been recovered. There is an aggravating feature of the conspiracy. It would have properly been taken into account by a UK sentencing court even when the laundering of the proceeds of one’s own crimes was not an offence. No objection could be taken to its relevance as an aggravating feature by a US Court if it were not an offence in the US to launder the proceeds of one’s own crimes. I do not see the rationale for requiring it to be ignored in sentencing for the conspiracy because it could have been charged as a separate offence in the US but for the extradition Treaty. I do not see that it would be regarded as irrelevant now in sentencing for such a conspiracy in the UK simply because it could also be charged as a separate offence. It is an aggravating feature of the offence for which sentence is being passed and to the punishment for which it is plainly relevant.

Mr Summers argued that, whatever might be the legitimacy in a US or UK domestic case of taking account of conduct which could have been charged as a separate offence when sentencing for the crime of conviction because of what it revealed about the manner or significance of its commission, in the extradition case, that was not permissible. It was not permissible, even if the uncharged offence were an extradition offence, and a fortiori if it were not, or extradition had been refused.

The answer to that submission depends on the true construction of s95 and the scope of the phrase “dealt with”, which includes punishment. There is nothing in the purpose of extradition and the limitations imposed on it by the specialty rule, as effected by s95, to require that particular limitation as submitted by Mr Summers to be placed on “dealt with”. The question is whether the US sentencing practices involve “dealing with” or punishing someone other than for the extradition crime on conviction. They do not.

Mr Summers next complained that the US Courts, if sentencing the Appellants, would take into account the fact that some of the conduct relating to the conspiracy took place in the UK even though no part of that conduct would have been reflected in any charge for which extradition had been granted. There is nothing in this point. The aggravating feature which could be relied on does not arise from the fact that it may have been in the UK that the conduct in question occurred but from the fact that it occurred abroad. That could be seen as indicating a more serious, sophisticated and planned conspiracy. It is capable of being an aggravating feature and should not be ignored simply because it may have happened in the sending country. Taking it into account in sentencing would involve no breach of specialty or of s 95.

Mr Summers also contended that the decisions in Garcia and Garrido-Santana showed that the Courts would treat the fact that the Appellants fled the US as an aggravating feature of the offences and would increase sentence on that account. This he submitted would also breach specialty because there was no charge upon which extradition had been granted which reflected that conduct.

Garcia offers only limited support to the proposition that flight would warrant upward enhancement of sentence. The factor warranting upward enhancement is “obstruction of justice”. The Guidelines would then accord a specific enhancement to that factor. Three matters were presented to the sentencing court as justifying the increase under this head, of which one was the flight to Canada. The Appeal Court did not decide whether that by itself would have justified the application of the “obstruction of justice” enhancement because there was other conduct, ordering the destruction of documents, which alone justified its application.

Garrido-Santana, which I have dealt with above, is in his favour however. English Courts would deal with it differently, as a contempt usually warranting a consecutive sentence. But I do not see that there is anything objectionable to specialty in treating the failure to appear as an aggravating feature when punishing the defendant for the crime at the trial of which he failed to appear. The concept of “dealing with” in s95, in its extradition context cannot have been intended to impose the English approach to sentencing, as opposed to requiring the English Courts to reach their own view of the scope of “dealing with” a purposive and flexible construction.

Accordingly, while I accept that the Appellants’ sentences could be increased if the US Courts conclude that they have obstructed justice by leaving the US when they did, I do not consider that that would show that there was a breach of specialty , or more importantly, that the arrangements required by s95 were not in place.

What none of the cases do however is support the broader proposition for which Mr Summers cited them, which was that the fact that extradition had been contested would itself be seen as an obstruction of justice or warrant an upward enhancement of sentence on some other basis. I see no basis for it.

After the close of the argument and as a result of specific undertakings offered in Bermingham and others, which followed afterwards, the US Government offered further undertakings in this case about what would happen to these Appellants in respect of trial and punishment. It affirmed the commitment of the US to the rule of specialty and said that the US prosecuting authorities would not “seek a superseding indictment charging [the Appellants] with offenses arising from conduct other than that conduct for which [they] have been extradited by the United Kingdom. U.S. authorities will ask the U.S. court not to consider for purposes of sentencing any information not introduced at trial that shows the commission by the defendants of offenses arising from conduct other than conduct for which the defendants have been extradited, except for information of a prior conviction of the defendants.”

Mr Summers submits that these undertakings are ineffective at least in relation to sentencing and are legally irrelevant under s95. I reject the arguments as to legal relevance or admissibility. True it is that s95(5) contains a specific provision for ad hoc or case specific assurances to be given in relation to a category 2 country which is a Commonwealth country or a British Overseas Territory, and there is no provision expressly for that in relation to other category 2 countries. That provision is necessary lest there be no adequate law in or Treaty with the country in question. But that does not warrant the inference in this statute that they are prohibited in relation to such other countries. I see no reason why s95 (3) should be interpreted as precluding specific undertakings as part of the arrangements to be considered or as part of the law of the requesting state. I can envisage that many arrangements in respect of the death penalty for S95(4)(b) would be ad hoc.

S109(2) and (4) of the 2003 Act permit an appeal to be allowed in specified circumstances. One of the pre-conditions to allowing an appeal is that information only available after the decision would have caused the Secretary of State to refuse extradition. The contention was therefore made that s109 of the 2003 Act implicitly prevents account being taken of material provided after the Secretary of State’s decision in order to uphold his decision where the appeal would otherwise have been successful. That is not a necessary corollary or implication at all.

However, having considered the undertakings, I do not consider that they alter the position at all. The undertaking could be interpreted as still leaving the door open to the allegation in relation to money laundering, although it would preclude some of the classes of wider charges which have featured in other cases. But a superseding indictment which alleged the feared money laundering offences would be a breach of specialty and the Secretary of State could not consent to their addition because they are not extradition offences. The US prosecutor’s undertaking, if addressed to that concern, merely means that the US Courts would be spared a motion to dismiss which would inevitably succeed. Whether or not money laundering charges are the intended target of the undertaking, the Courts would be in no doubt as to the attitude of the UK Government and judiciary: the money laundering charges fall outside the scope of the extradition and cannot be brought back in by any Government consent, express or implied.

As to sentence, the same reservations about the true scope of the undertakings persist. But the sentencing process is a matter for the judiciary; the Executive’s position is merely persuasive or limited to the production of evidence. It has been demonstrated in Baez that the US Courts do not regard themselves as bound to give effect to such undertakings given by the Executive, even though they may give them respect and are able the more effectively to do so now that the straitjacket of the Guidelines has been so loosened. They do not regard complete deference to the sending state in matters of punishment to be a requirement of adherence to the specialty rule.

However, I do not accept that it would breach specialty for the US Courts to take into account the potentially aggravating feature of the way in which the Appellants are alleged to have disposed of the proceeds of their fraud. In so doing, the Courts would be punishing them for the extradition offences and not for the money laundering.

For those reasons, I would reject Mr Summers’ submissions and I would dismiss these appeals.

I agree.