Bermingham and others v The Director of the Serious Fraud Office: QBD 21 Feb 2006

Prosecution to protect defendant not available

The claimants faced extradition to the US. They said that the respondent had infringed their human rights by deciding not to prosecute them in the UK. There was no mutuality in the Act under which they were to be extradited.
Held: The Director had a discretion as to whether to prosecute. He had no duty to consider the place of trial as a way of protecting the defendants’ human rights: ‘The request to investigate in effect invited the Director [of the Serious Fraud Office] to constitute himself the judge of the proper forum for the defendants’ trial and to decide the issue in favour of trial here and not the United States: and thereby to pre-empt the statutory extradition process. Such a function cannot conceivably be found in s. 1(3) of the [Criminal Justice Act 1987].’ The section created only a power to investigate. To take it further would be fanciful and would usurp the role of the judicary. As to the extraditions themselves the Home Secretary had no remaining discretion as to whether or not to authorise extradition. He had a duty to do so. The case had substantial connections with the US and was properly triable there.
In the absence of a wholly exceptional case, the court would not intervene to examine by way of judicial review a discretionary decision by the Director of the SFO to investigate or not to investigate fraud.


Lord Justice Laws, Mr Justice Ouseley


[2006] EWHC 200 (Admin), Times 24-Feb-2006, [2006] 3 All ER 239, [2007] QB 727, [2006] UKHRR 450, [2006] ACD 55, [2007] 2 WLR 635




Extradition Act 2003 103 108, Criminal Justice Act 1987 1(3)


England and Wales


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No General ty of Care Owed by Police
The mother of a victim of the Yorkshire Ripper claimed in negligence against the police alleging that they had failed to satisfy their duty to exercise all reasonable care and skill to apprehend the perpetrator of the murders and to protect members . .
CitedRegina v Sectretary of State for the Home Department ex parte Razgar etc HL 17-Jun-2004
The claimant resisted removal after failure of his claim for asylum, saying that this would have serious adverse consequences to his mental health, infringing his rights under article 8. He appealed the respondent’s certificate that his claim was . .
CitedRegina v Special Adjudicator ex parte Ullah; Regina v Secretary of State for the Home Department HL 17-Jun-2004
The applicants had had their requests for asylum refused. They complained that if they were removed from the UK, their article 3 rights would be infringed. If they were returned to Pakistan or Vietnam they would be persecuted for their religious . .
CitedGovernment of Canada v Aronson; Director of Public Prosecutions v Aronson HL 20-Jul-1989
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CitedRegina v Director of Public Prosecutions, ex parte Kebilene and others HL 28-Oct-1999
(Orse Kebeline) The DPP’s appeal succeeded. A decision by the DPP to authorise a prosecution could not be judicially reviewed unless dishonesty, bad faith, or some other exceptional circumstance could be shown. A suggestion that the offence for . .

Cited by:

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The defendants appealed orders for their extradition. They were suspected of terrorist offences, and feared that instead of facing a trial, they would be placed before a military commission.
Held: The appeals failed. The court had diplomatic . .
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CitedNorris v United States of America and others HL 12-Mar-2008
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Assurances for Extradition
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CitedBH and Another v The Lord Advocate and Another SC 20-Jun-2012
The appellants wished to resist their extradition to the US to face criminal charges for drugs. As a married couple that said that the extraditions would interfere with their children’s rights to family life.
Held: The appeals against . .
CitedShaw, Regina (on The Application of) v Cheshire Constabulary Admn 23-Jul-2015
The claimant sought judicial review of a decision not to prosecute, now renewing his application for leave.
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CitedJJ Management Consulting Llp and Others v Revenue and Customs CA 22-Jun-2020
HMRC has power to conduct informal investigation
The taxpayer, resident here, but with substantial oversea business interests, challenged the conduct of an informal investigation of his businesses under the 2005 Act, saying that HMRC, as a creature of statute, are only permitted to do that which . .
Lists of cited by and citing cases may be incomplete.

Extradition, Criminal Practice, Human Rights

Updated: 09 December 2022; Ref: scu.239881