Tesler v Government of the United States of America

This is an appeal by Mr Jeffrey Tesler (“the appellant”) a dual British and Israeli national aged 62, under section 103 of the Extradition Act 2003 (“the 2003 Act”). The Government of the United States of America (“the Government”) has requested the appellant’s extradition. He is accused in the United States of conspiring to violate the Foreign Corrupt Practices Act 1977 (“FCPA”) and aiding and abetting violations of the Act. District Judge Tubbs rejected submissions made on behalf of the appellant and, in accordance with section 87(3) of the 2003 Act, sent the case to the Secretary of State for a decision whether the appellant is to be extradited.

On 17 February 2009, an indictment against the appellant was filed in the United States District Court in the Southern District of Texas, Houston Division, and a warrant was issued for the appellant’s arrest. The extradition proceedings are governed by Part 2 of the 2003 Act. The extradition request was issued by the Government on 1 May 2009 and on 5 May 2009 the Secretary of State issued a certificate in accordance with section 70 of the 2003 Act certifying that the request is valid and had been made in the approved way.

The hearing took place before the District Judge on a number of days in November and December 2009 and January 2010. The appellant did not give oral evidence but submitted a defence statement and an addendum. Statements were submitted by his solicitor, Mr Jacobs, and an expert witness Mr J McCormick Webster III, who also gave oral evidence. The District Judge handed down her ruling on 25 March 2010. On 24 May 2010, the Secretary of State ordered the appellant’s extradition to the United States pursuant to section 93(4) of the 2003 Act.

The District Judge set out the basic facts:

“In brief summary the Defendant is alleged to have participated in a scheme to bribe Nigerian Government officials to assist an international joint venture consortium (made up of 4 global engineering companies, each incorporated in a different country, one of which was incorporated in the USA) to win an ostensibly competitive international tender to procure and thereafter to retain contacts to construct liquefied national gas production facilities on Bonny Island in Nigeria. The conduct occurred between August 1994 and June 2004. The amount of money paid in bribes to Nigerian Government Officials was around US$132 million. The value of the 4 contracts procured by means of the corrupt scheme was more than US$6 Billion. The TSKJ Joint Venture, referred to above, was formed in 1991 with the purpose of bidding on and, if successful, carrying out the Bonny Island Project. The 4 companies constituting the Joint Venture were:

(i)

the MW Kellogg Company and its successor company Kellogg, Brown and Root Inc (collectively referred to as ‘KBR’). KBR was incorporated in Delaware and its Headquarters were located in Houston, Texas,

(ii)

Technip, located in Paris, France,

(iii)

Snamprogetti located in Milan, Italy and

(iv)

The JGC Corporation located in Yokohama, Japan.

The Joint Venture, itself, was registered in Portugal. The Defendant’s alleged role was that he was hired by the Joint Venture as an agent to bribe high-level Nigerian Government Officials in order to ensure that the joint venture was awarded the contracts for the Bonny Island Project. The involvement of Albert Jackson Stanley is relevant. Stanley is a US Citizen. From 1994 to 2004, the relevant period, he lived in Houston, Texas. Stanley was the Chief Executive Officer and Chairman of KBR. He was also a member of the Joint Venture’s steering committee, which made major decisions on behalf of the Joint Venture, including decisions relating to the hiring of agents. On 3 September 2008 Stanley pleaded guilty in the US District Court for the Southern District of Texas to conspiring to violate the Foreign Corrupt Practices Act in relation to these bribery allegations. Chodan lived in England at the relevant time. He was the Sales Vice-President of M W Kellogg Ltd from 1988 to 1998 and thereafter was Consultant to that company until June 2004. Chodan reported to Stanley and other employees of KBR.”

Chodan is a UK national whose extradition had also been requested by the Government and was subject to proceedings before the City of Westminster Magistrates’ Court. He is a co-defendant in the proposed proceedings in Texas. At the request of both the appellant and Chodan, the extradition proceedings were not joined. In separate proceedings, District Judge Tubbs sent Chodan’s case to the Secretary of State for a decision whether to order extradition pursuant to section 87 of the 2003 Act and extradition was ordered. On his failure to file and serve a notice of appeal within the required 14 day period, his appeal to this court was held to be inadmissible.

Before specifying counts, the indictment in the United States District Court contains a narrative statement which provides:

“The Foreign Corrupt Practices Act of 1977, as amended, Title 15, United States Code, Section 78dd-1, et seq. (“FCPA”), was enacted by Congress for the purpose of, among other things, making it unlawful for certain classes of persons and entities to act corruptly in furtherance of an offer, promise, authorization, or payment of money or anything of value to a foreign government official for the purpose of securing any improper advantage, or of assisting in obtaining or retaining business for or with, or directing business to, any person.”

It was of the essence of the charges under Title 15 that the officials concerned were foreign officials, that is foreign to the United States.

Title 18 of the United States Code, section 2, provides:

“(a)

Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.

(b)

Whoever wilfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.”

It involves some repetition but I summarise parts of the narrative describing the nature of the prosecution case. It goes on to provide that KBR was engaged in the business of providing engineering, procurement and construction (“EPC”) services around the world, including designing and building liquefied natural gas production plants. KBR was incorporated in Delaware and its headquarters were in Houston, Texas. It is stated that Albert Stanley is a United States citizen and a resident of Houston, Texas. He served in various capacities as an officer and/or director of KBR. Wojciech Chodan is a citizen of the United Kingdom employed by a KBR company. He reported to Stanley and other KBR employees and assisted KBR in winning a series of EPC contracts to design and build an LNG plant and several expansions on Bonny Island, Nigeria.

The Joint Venture is stated to be a 4-company joint venture formed in 1991 for the purpose of bidding on and, if successful, performing the Bonny Island Project. It consisted of KBR and 3 other companies. The steering committee of the Joint Venture consisted of high-level executives from each of the 4 Joint Venture companies, including Stanley on behalf of KBR. The Joint Venture operated through 3 Portuguese special purpose corporations which were owned by the 4 Joint Venture companies, 2 of them owned equally by the 4 companies and a third, used to enter into consulting agreements with Joint Venture agents, 50% by KBR and the rest by other Joint Venture companies.

The appellant is stated to be a citizen of the United Kingdom, resident in London, England. He was hired by the Joint Venture to help it obtain business in Nigeria, including by offering to pay and paying bribes to high-level Nigerian Government Officials. He was an agent of the Joint Venture and each of the Joint Venture companies.

Tri-Star Investments Limited (“Tri-Star”) was a Gibraltar corporation that Tesler used as a corporate vehicle to enter into agency contracts with and receive payments from the Joint Venture. Between December 1995 and January 2004, the Joint Venture paid Tri-Star over $130 million for use in bribing Nigerian Government Officials. Tri-Star was an agent of the Joint Venture and each of the Joint Venture companies.

The Nigerian National Petroleum Corporation (“NNPC”) was a Nigerian Government-owned company charged with development of Nigeria’s oil and gas wealth and regulation of the country’s oil and gas industry. Nigeria LNG Limited (“NLNG”) was created by the Nigerian Government to develop the Bonny Island Project and was the entity that awarded the EPC contracts. The Nigerian Government exercised control over NLNG, including but not limited to the ability to block the award of EPC contracts. NLNG was an entity and instrumentality of the Government of Nigeria and its officers and employees were foreign officials within the meaning of Title 15.

Between 1995 and 2004, the Joint Venture was awarded 4 EPC contracts to build the Bonny Island Project. The first was awarded to the Joint Venture through an ostensibly competitive international tender. The other 3 EPC contracts were awarded to the Joint Venture on a sole-source negotiated basis.

The payments to Tri-Star are alleged to have been made from one of the Portuguese (Madeira) company’s bank account in the Netherlands, via bank accounts in New York into accounts controlled by the appellant in Switzerland and Monaco. On behalf of the Joint Venture, the appellant is alleged to have made transfers of bribe payments to or for the benefit of Nigerian Government Officials and a political party in Nigeria.

Section 137(2) of the 2003 Act provides:

“The conduct constitutes an extradition offence in relation to the category 2 territory if these conditions are satisfied—

(a)

the conduct occurs in the category 2 territory;

(b)

the conduct would constitute an offence under the law of the relevant part of the United Kingdom punishable with imprisonment or another form of detention for a term of 12 months or a greater punishment if it occurred in that part of the United Kingdom;

(c)

the conduct is so punishable under the law of the category 2 territory (however it is described in that law).”

On behalf of the appellant, Mr Keith QC submitted that the District Judge erred in concluding that the requirement in section 137(2)(a) was satisfied. There was no substantial connection between the United States and the conduct of the appellant, as alleged in the extradition request and as required by section 137(2)(a). It was also alleged that the District Judge erred in concluding that extradition was not barred by the passage of time (section 82 of the 2003 Act).

If the requirement of section 137(2)(a) is satisfied, it is not claimed that a separate ground of appeal based on a failure to comply with section 137(2)(b) can be successful. No separate point is now taken under that paragraph. There is no separate challenge under section 137(2)(c).

The District Judge stated her conclusions on the first issue:

“Where, as in this case, it is submitted that the conduct occurred in the requesting state (s.137(2)(a)), that determination is a matter to be based on careful examination of the particular described conduct in each individual case. In this case clearly all the conduct did not take place in the USA. Given the wide ranging global nature of the allegations it may be that there is other relevant evidence, not before me, capable of establishing that more than one country could properly be described as having such a substantial link that the conduct could properly be said to have occurred [in] that country. It is not a requirement of the statute or the authorities, however, that the conduct should have occurred in only one country. I am satisfied so that I am sure on the basis of the description of the conduct contained in the relevant request documents that the Defendant’s conduct has such a substantial connection with the USA that it can properly be described as occurring in the Category 2 Territory. The matters on which the government have relied go much further than only establishing a minimal or tangential link with the USA. The payment and transfer of monies (including, allegedly, bribe money) through the banks in New York to accounts in Switzerland, although a factor that can be taken into account, I would not have found to be sufficient in itself to establish a substantial link if it had been the sole or main ground upon which reliance was placed. The money being transferred was in US dollars and, as such, has to have clearance through a US bank. The conduct in the U.S., including the close and critical involvement of the Defendant’s two alleged co-conspirators, KBR and Stanley, described in the relevant documents and the considerable financial benefit accruing to the American company as quarter of the Joint Venture entity, is such that I find there is a substantial link with the US and the conduct is properly described as having occurred in the USA (S.137(2)(a) of the Act).

The Government did not seek to rely upon the ‘purposive’ (Cando Armas) [considered below] approach. Although I do find that the intention of the co-conspirators was to subvert the ostensibly open and competitive international tendering process in order to corruptly procure and retain the contracts in question and, as such, it could be inferred that the actions were to the intended detriment of other actual or potential ‘tenderers’ who might be based in countries across the world, including the USA, I would not have found that the effects of the actions were internationally felt in the USA if the sole basis for finding that the conduct occurred in the USA was submitted to the ‘purposive’ test.”

Mr Keith made the general submission that compliance with section 137(2)(a) must be analysed with real care, particularly because the decision in Norris v Government of the United States of America [2010] 2 AC 487 now limits a defendant’s protection under article 8. This is an exorbitant claim to jurisdiction by the United States Government, it was submitted. As stated in evidence by Mr Webster at the Magistrates Court, it was “an extremely aggressive application of US law to foreign conduct”. It was also submitted that the prosecutor’s assertion that there is jurisdiction in the United States to try the appellant was, as a matter of United States law, highly questionable. Technical points were made about the requirements of United States law, including the alleged need for interstate transactions.

Mr Keith submitted that the appellant’s conduct did not occur in the United States. He has not been to the United States or to Nigeria, in relation to the relevant events. He had no meetings in London with Mr Stanley. The payments by the Joint Venture were not to him personally but to his company. No bribery had occurred in the United States.

By reference to the facts, Mr Keith submitted that the Joint Venture was not a United States entity. One of its members was a United States company but decisions of the Joint Venture had to be unanimous. The Joint Venture operated through a number of Portuguese companies. Analysis of the conduct of acts within the jurisdiction of the United States demonstrates how tangential the link is. It was not accepted that acts of co-defendants, or potential co-defendants, were relevant to the test to be applied by the District Judge. The intended effects of the conduct were in Nigeria or in Europe and not in the United States. To establish that money would be made in the United States as a result of the conduct alleged was an insufficient link. The conduct of investigations by the Serious Fraud Office in the United Kingdom demonstrates the tenuous nature of the alleged connections with the United States.

The meeting of 10 October 1994 between Chodan and the appellant did not take place in the United States. As for the consulting agreements between LNG and Tri-Star, neither was a US entity and the agreements were not made in the United States. The overt acts occurred either in London or in Nigeria. The only US connection with any acts pleaded against the appellant is of an email (18 June 2002) sent to the appellant from the United States and that payments of money from Amsterdam to Switzerland and Monaco involved the purchase of dollars through New York banks. The public interest in any prosecution, if it exists, would be met by further investigation and, if appropriate, prosecution in the United Kingdom or in France. Any benefit to the United States member of the Joint Venture could be relevant only to consideration of the “intended effect doctrine” which the District Judge correctly ruled had not been met, it was submitted.

In Office of the King’s Prosecutor, Brussels v Cando Armas [2006] 2 AC 1, the House of Lords considered the requirement in section 137(2)(a) of the 2003 Act that the conduct must occur in the territory of the requesting state. Cando Armas was concerned with a category 1 territory and section 65(3)(a) of the 2003 Act but section 137(2)(a) is the equivalent provision for category 2 territories. The case concerned the systematic illegal immigration of Ecuadorians into Europe via Brussels and the defendant was arrested in England. Lord Bingham of Cornhill stated, at paragraph 17:

“. . . it is enough, under [section 65(3)(a)] if some of the conduct complained of or relied on occurred in the category 1 territory.”

Lord Hope of Craighead with whom Lord Scott of Foscote, Baroness Hale of Richmond and Lord Carswell agreed, analysed the requirement further, having stated, at paragraph 30, that the judge “does have to consider where the conduct which is alleged to constitute the offence took place”:

“34.

Common to the first condition about the place of the conduct, irrespective of the subsection under which it has to be satisfied, are two questions: (1) whether the person must be within the territory of the requesting State at the time of the conduct which he is alleged to have committed, and (2) whether the conduct must have occurred exclusively within that territory. In many cases, of course, these will not be live issues as it will be plain that the conduct occurred exclusively in the territory of the requesting State. But many of the offences in the Framework list such as trafficking in human beings are commonly committed across borders. The appellant is alleged to have engaged in conduct of that kind, so these questions must be addressed in his case.

35.

The answers are to be found in the first place in the language which has been used by the legislature which Lord Bingham has analysed. The context in which that language has been used is, of course, provided by the common law. It is provided in particular by the rules which apply when jurisdiction is claimed on the basis of territoriality. It is now well established that the physical presence of the defendant in the territory is not required so long as the effects of his actions were intentionally felt there. That rule is matched by its corollary which is that, if the effects of those actions were intentionally felt here, criminal jurisdiction can be exercised in respect of their effect irrespective of where the actions took place that gave rise to them. Section 65(2) modifies these rules in the case of Framework offences where the test of double criminality is dispensed with, as it requires that no part of the conduct took place in the United Kingdom. But the test of whether conduct occurs in the category 1 territory is satisfied for the purposes of section 65(3) so long as its effects were intentionally felt there, irrespective of where the person was when he did the acts which constituted such conduct.”

Having referred to common law authorities, Lord Hope stated, at paragraph 40:

“. . . The conduct must occur ‘in’ the category 1 territory if the condition which is set out in these paragraphs to be satisfied. But a purposive meaning must be given to the word "conduct" in this context. It would impose a wholly artificial restriction on the extradition process if it were to be taken as meaning that all the conduct which resulted in the offence must have taken place exclusively within the category 1 territory. Actings elsewhere will be sufficient to constitute conduct in that territory so long as their intended effect was to bring about harm within that territory. It would be immaterial to a request for extradition to Belgium, for example, that the actings which had a harmful effect were all in France or in Germany.”

In the R (Bermingham) v Director of the Serious Fraud Office [2007] QB 727, the defendants were United Kingdom nationals resident in the United Kingdom and employed in London. The United States Government sought their extradition. They were charged with conspiring together and with others to defraud the National Westminster Bank plc. A submission founded on paragraph 40 of Lord Hope’s speech in Cando Armas was summarised at paragraph 83:

“The submission is that in a case where the conduct giving rise to the charge occurred both in the relevant category 2 territory and in another jurisdiction, s.137(2)(a) is only met if the conduct in the other jurisdiction was "targeted" at the category 2 territory: that is to say, if the alleged crime's harmful effects were felt there. Here, it is said, the harm was not in the United States (the category 2 territory) but here: the victim was the Bank, a UK institution.”

Laws LJ, with whom Ouseley J agreed, stated, at paragraph 84:

“In my judgment, with great respect, this reasoning does not show that where there is relevant conduct both within the category 1/2 territory and elsewhere, the case is outside s.65(3)(a)/137(2)(a) unless the conduct elsewhere is directed at, or has harmful effects in, that territory. That would be at variance with Lord Bingham's approach with which Lord Hope agreed in terms (paragraph 19). Their other Lordships agreed with Lord Bingham and Lord Hope and made no distinction between their opinions. As it seems to me Lord Hope's reference to ‘intended effect’ looks to the particular case where the defendant's acts, having in fact taken place elsewhere, can only qualify as amounting to conduct within the category 1/2 territory on the footing that that was the place where their malign effects were felt. So much is illustrated by the graphic example given by Lord Keith of Kinkel in DPP v Stonehouse [1978] AC 55, 93, cited by Lord Hope at paragraph 36, of the man standing on the Scottish bank of the River Tweed who with murderous intent fires a rifle at someone on the English bank: he would be guilty of murder or attempted murder under English law. But where the defendant's acts – the relevant conduct – substantially took place in the category 1/2 territory as well as elsewhere, there is no need to resort to such a purposive approach.”

Mr Keith relied on that passage when submitting that the conclusion of the District Judge was erroneous. The District Judge disowned the “purposive” test. That being so, only conduct which occurred in the United States is material, it was submitted, and the conduct in the United States was insufficient to meet the requirement in section 137(2)(a). Mr Keith’s own analysis of Lord Hope’s test was that it was a unitary test which can be applied in two ways, the first based on conduct in the requesting state and the second based on the effect of conduct being intentionally felt there. The appellant is not accused of having attended any meetings in the United States or of doing any act intended to have effect in the United States. The acts of the co-defendants in the United States cannot be regarded as an integral part of the conduct alleged against the appellant, it was submitted. Mr Keith submitted that introduction of the concept of joint enterprise can subvert the protection intended for UK residents. It was also claimed that the benefit to KBR was not an intended effect of the appellant’s conduct. There must be a plain, obvious and direct effect on the requesting state and the alleged benefit was too indirect to establish the necessary link.

In Andreas Kodos v Prosecutor General’s Office of the Republic of Lithuania [2010] EWHC 897 (Admin), this court considered a request by the Prosecutor General’s Office based on 22 offences of people trafficking, earning from the prostitution of another person and engaging another person in prostitution. The defendant, resident in the United Kingdom, was alleged to have acted in an organised group to recruit, buy and sell women for prostitution in the United Kingdom. It was submitted on behalf of the defendant that the conduct alleged occurred entirely in England. At paragraph 19, Richards LJ, with whom Cranston J agreed, stated:

“In my judgment, Miss Barnes's argument proceeded on a mistaken premise in singling out things done by the appellant himself in England and failing thereby to give full effect to the description of the conduct in the warrant. That description makes clear that the appellant is alleged to have been a party to a joint enterprise encompassing all the conduct in question. For example, in relation to the first woman, Rasa Gudomskiene, it starts by referring to the appellant ‘acting in an organized group’ with named individuals, ‘under pre-agreement to recruit, buy and sell women for prostitution in the United Kingdom’. The various steps taken in Lithuania to secure the woman's transfer to the United Kingdom for the purposes of prostitution are included not just by way of narrative background but as an integral part of the conduct which is alleged to constitute the offence committed by the appellant. The conduct relied on in relation to him is not limited to the ‘buying’ of the woman by sending money from England to Lithuania. The position is the same in relation to the offences concerning each of the other women, where the description of the conduct contains similar language as to pre-agreement and participation in an organised group. In their case the conduct encompassed within the joint enterprise extends to the acts of engaging the women in prostitution and gaining income from their prostitution. This brings in additional offences, but not by way of separate matters relevant to the appellant alone: those acts, too, are integral parts of the overall arrangement to which he is a party and which involved things done in Lithuania as well as in England.”

For the Government, Mr Perry QC submitted that central to the issue on section 137(2)(a) is that the appellant was a party to a joint enterprise. He was party to a venture which involved bribing Nigerian officials to obtain contracts for companies one of which, KBR, was incorporated in Delaware and had its headquarters in Houston, Texas. The appellant acted as agent on behalf of the Joint Venture and at least two of the conspirators, KBR and Albert Stanley, were based in the United States. Stanley, and other agents of KBR committed acts in furtherance of the conspiracy in Houston. It was submitted that everything done by the alleged co-venturers in the United States in furtherance of the corrupt scheme must be treated as having been done by the appellant personally. If the corrupt scheme was successful, KBR in the United States would derive considerable financial benefit as a result of the award of EPC contracts for the Bonny Island Project. Other companies in the United States were potentially disadvantaged by the corrupt scheme.

Mr Perry also referred to the large sums of money channelled through bank accounts in New York to bank accounts controlled by the appellant for his use in furtherance of the conspiracy. Further, though not claimed to be central to the case, two emails were sent to the appellant from Houston relating to the appellant’s participation in the scheme, one on 18 June 2002 and the other on 4 March 2003.

Mr Perry further submitted that the appellant’s submissions in relation to United States law, such as the requirement for interstate transactions, and possible jurisdictional challenges in the United States, are not relevant to the determination of the issue under section 137(2)(a). I agree with that submission.

Mr Perry submitted that there was no watertight division between what Mr Keith had treated as limb 1 and limb 2 of Lord Hope’s test in Cando Armas, as analysed by Laws LJ in Bermingham. Laws LJ was finding only that there was no need to rely on “intended effect” if the conduct took place in the requesting state.

On the relevance of joint enterprise, Mr Perry relied on the approach of this court in Kodos, with which I respectfully agree, and on the analysis by Lord Diplock in Government of the United States of America & Others v McCaffery [1984] 1 WLR 867, at page 872C, of section 3 of the Extradition Act 1873. That section reflected common law principles and removed doubts about them. Lord Diplock stated:

“The reason why McCaffery, despite the fact that it appears that all the physical acts that he did personally in furtherance of this international fraud were being done by him in England, is nevertheless liable to be extradited to the U.S.A., is to be found in section 3 of the Extradition Act 1873. This section provides that persons accused of having been accessories to an extradition crime shall be deemed for the purposes of the Acts of 1870 and 1873 to be accused of having committed such crime and shall be liable to be apprehended and surrendered accordingly. So McCaffery is to be treated, for the purposes of his extradition, as if everything that was done by his confederates in the state of Georgia in furtherance of the fraudulent scheme had been done in that state by McCaffery personally.”

In my judgment, the alleged participation of the appellant in the joint enterprise already described to bribe Nigerian officials is the key to the section 137(2)(a) issue in this case. In Cando Armas, Lord Hope was providing a single test to be applied but its application will depend on the circumstances. The Joint Venture had a strong United States connection in that KBR was one of the four companies constituting it. It was both incorporated and had headquarters in the United States. The appellant’s acts in furtherance of the aims of the Joint Venture were performed outside the United States but that did not defeat the United States connection. A conspirator does not escape his liability to be extradited as a participant in such a scheme, as a result of which very substantial sums of money were planned to be made in the United States, by remaining out of the United States. The appellant was taking part in a joint enterprise with United States entities, one of the objects of which was to benefit substantially a United States company. The effects of his actions were to be felt in the United States and were intended to be felt there. A United States entity was intended to be one of the beneficiaries of his corrupt conduct.

While it is right that the District Judge expressly did not rely on a “purposive” approach, it is, with respect, difficult to follow her reasoning on that point. Central to her reasoning that there was a substantial link with the United States was, however, the appellant’s involvement with co-conspirators KBR and Stanley who were in the United States and the considerable financial benefit according to KBR. That is reasoning, with which I respectfully agree, based on the effect of the appellant’s conduct in the United States.

When Lord Hope in Cando Armas used the word “purposive”, he was holding that regard must be had to the effect of conduct as well as the place where it occurs. The effect of the appellant’s involvement in a joint enterprise with United States entities acting in the United States, provided the necessary connection. The sophistication of the scheme does not defeat that connection and neither does the cross-border aspect of the case or the involvement of entities from other jurisdictions.

Laws LJ’s statement that there will sometimes be no need to go on to consider effects because the conduct occurred within the requesting state does not detract, and was not intended to detract, from Lord Hope’s proposition. Moreover, it is the “effect” in the requesting state which is material, whether beneficial or, as in Cando Armas, harmful to entities in the requesting state. That the eventual “harm” may be in Nigeria, does not detract from the United States connection, the essence of the United States offence being bribery of foreign officials.

I would dismiss the appeal on this issue.

Section 82 of the 2003 Act provides:

“A person’s extradition to a category 2 territory is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have—

(a)

committed the extradition offence (where he is accused of its commission), or

. . .”

In Gomes and Goodyer v Government of Trinidad & Tobago [2009] 1 WLR 1038, Lord Brown of Eaton-under-Heywood expressed the opinion of the Committee of the House. He stated, at paragraph 36:

“The extradition process, it must be remembered, is only available for returning suspects to friendly foreign states with whom this country has entered into multi-lateral or bilateral treaty obligations involving mutually agreed and reciprocal commitments. The arrangements are founded on mutual trust and respect. There is a strong public interest in respecting such treaty obligations. As has repeatedly been stated, international cooperation in this field is ever more important to bring to justice those accused of serious cross-border crimes and to ensure that fugitives cannot find safe havens abroad.”

At paragraph 27, Lord Brown stated that the question of culpable delay on the part of a requesting authority in issuing proceedings could only be relevant in a borderline case. At paragraph 31 Lord Brown stated that “the test of oppression will not easily be satisfied: hardship, a comparatively commonplace consequence of an order for extradition, is not enough”. Lord Brown, citing Lord Diplock in Kakis v Government of
Cyprus [1978] 1 WLR 779, added that the gravity of the offence is relevant to the court’s consideration of whether extradition would be oppressive.

Mr Keith submitted that responsibility for much of the passage of time in these proceedings rests with the United States prosecutor. The appellant has been in the United Kingdom throughout and has not sought to evade the proceedings or conceal his whereabouts. There was, it was submitted, a substantial delay from October 2006 when the prosecutor informed the appellant’s representatives that criminal proceedings will follow “in a matter of months” to February 2009 when the indictment was filed.

The accusations alleged an agreement made in 1994 and there are obvious difficulties to the appellant in the preparation and presentation of any defence. It was submitted that 3 critical witnesses have died including 2 senior officers of NNPC and that the paperwork accompanying rival bids for the Bonny Island Project is likely by now to have been lost. The witnesses could have described the appellant’s role in the awarding of the contracts and the defence is irredeemably prejudiced by their absence, it was submitted. Further, Nigerian witnesses will be disinclined to attend a trial in the United States.

Reliance is placed on the evidence of Mr Webster, who has described the forensic prejudice which has resulted. The nature of the charges is such that evidence in the United States may not be available to the appellant.

The District Judge dealt with the submissions about delay and concluded:

“I do not find that the defendant’s extradition is marred by reason of the passage of time as I do not find that it would be either unjust or oppressive by reason of the passage of time to so extradite him.”

The District Judge found that “the lack of compellability and/or the unwillingness of non-US witnesses to attend and give evidence at a trial in the US is not a matter arising from the passage of time at all”. The District Judge found that it had not been established “by way of receivable evidence what evidence that would have assisted the defence would be given by any witness or contained in any documents that are now not available . . . The trial process in the United States provides safeguards to ensure that proceedings are fair”.

In supporting that conclusion, Mr Perry referred to the availability of a bulk of documentary evidence and to the Government having preserved evidence in accordance with its obligation to do so. Cross-examination will be possible and the recollections of witnesses can be challenged. Reliance is placed on the oral evidence of Mr Webster that he did not believe the delay in the institution of dealings in the United States was deliberate or contrived in order to gain a prosecutorial advantage and he did not consider that there had been fault on the part of the prosecuting authorities.

Mr Perry submitted that the investigation began in January 2004, while the conspiracy was still active. The complexity of the case, involving conduct in several states, was such that the passage of time up to the filing of the indictment was understandable. Relevant additional information was still being received in late 2008 and even in February 2009. The claim that it was said in November 2006 that proceedings would commence “in a matter of months” is challenged. I do not make a finding of fact on that issue, which is not central.

I agree with the District Judge that, in the circumstances, extradition is not barred by reason of the passage of time.

I would dismiss the appeal.

I agree