The detainee appealed an order for extradition to the USA, saying that the offence (price-fixing) was not one known to English common law. The USA sought his extradition under the provisions of the Sherman Act.
Held: It was not, and it would be wrong in principle to decide that it was: ‘The common law recognised that an agreement in restraint of trade might be unreasonable in the public interest, and in such cases the agreement would be held to be void and unenforceable. But unless there were aggravating features such as fraud, misrepresentation, violence, intimidation or inducement of a breach of contract, such agreements were not actionable or indictable.’ and ‘the wider construction should prevail. In short, the conduct test should be applied consistently throughout the 2003 Act, the conduct relevant under Part 2 of the Act being that described in the documents constituting the request (the equivalent of the arrest warrant under Part 1), ignoring in both cases mere narrative background but taking account of such allegations as are relevant to the description of the corresponding United Kingdom offence. ‘
Lord Bingham of Cornhill said: ‘The common law recognised that an agreement in restraint of trade might be unreasonable in the public interest, and in such cases the agreement would be held to be void and unenforceable. But unless there were aggravating features such as fraud, misrepresentation, violence, intimidation or inducement of a breach of contract, such agreements were not actionable or indictable.’
Lord Bingham of Cornhill, Lord Rodger of Earlsferry, Lord Carswell, Lord Brown of Eaton-under-Heywood and Lord Neuberger of Abbotsbury
[2008] UKHL 16, [2008] 2 All ER 1103, [2008] 2 WLR 673
Bailii, HL
England and Wales
Citing:
Appeal from – Norris v United States of America and others; (Goldshield Group plc intervening) Admn 25-Jan-2007
The defendant was the former chief executive of a company manufacturing carbon products internationally. His extradition to the US was sought on the basis that he had conspired in a dishonest price-fixing conspiracy.
Held: The secrecy of such . .
Cited – Jones v North 1875
Four parties were invited to tender for the supply of stone to a public authority. They agreed that one would buy stone from the others and submit the lowest tender, two parties were to submit a higher tender and the fourth party was to submit no . .
Cited – Mogul Steamship Company Limited v McGregor Gow and Co QBD 10-Aug-1885
Ship owners formed themselves into an association to protect their trading interests which then caused damage to rival ship owners. The plaintiffs complained about being kept out of the conference of shipowners trading between China and London.
Cited – Mogul Steamship Company Limited v McGregor Gow and Co CA 2-Jul-1889
Ship-owners formed an association which in this action others claimed to be a tortious conspiracy.
Held: There is a cause of action against the conspirators where there is an agreement which constitutes an indictable conspiracy and that . .
Cited – Nordenfelt v Maxim Nordenfelt Guns and Ammunition Company HL 1894
Exceptions to Freedom to Trade
The purchaser of the goodwill of a business sought to enforce a covenant in restraint of trade given by the seller.
Held: At common law a restraint of trade is prima facie contrary to public policy and void, unless it can be shown that the . .
Cited – Mogul Steamship Co Ltd v McGregor, Gow and Co HL 18-Dec-1891
An association of shipowners agreed to use various lawful means to dissuade customers from shipping their goods by the Mogul line.
Held: The agreement was lawful in the sense that it gave the Mogul Company no right to sue them. But (majority) . .
Cited – Attorney General of the Commonwealth of Australia v Adelaide Steamship Company PC 1913
ag_adeleaidePC1913
There was an agreement between a group of colliery owners and a group of shipowners which was ancillary to an agreement between the colliery owners themselves. Each agreement was in restraint of trade.
Held: Lord Parker explained the doctrine . .
Cited – North Western Salt Co Ltd v Electrolytic Alkali Co Ltd CA 1913
A restrictive agreement was challenged. Held (majority): the agreement was in restraint of trade, and so unenforceable, despite the defendants’ failure to plead this defence. Farwell LJ said: ‘In the present case, no circumstances in my opinion . .
Cited – Rawlings v General Trading Co CA 1921
Prospective bidders at an auction of military surplus stores agreed that only one should bid. Thus the defendant was to bid on their joint account, and the goods purchased were to be shared equally, each paying half the purchase price. The goods . .
Cited – Rawlings v General Trading Co 1920
Prospective bidders at an auction of military surplus stores had agreed that one should bid for their joint account, and the goods purchased were to be shared equally, each paying half the purchase price. The goods were knocked down to the . .
Mentioned – North Western Salt Co Ltd v Electrolytic Alkali Co Ltd HL 1914
Appeal allowed. The onus of demonstrating that a restraint is reasonable as between the interested parties is on the party alleging it to be so. The Court should be slow to strike down clauses freely negotiated between parties of equal bargaining . .
Cited – British Airways Board v Laker Airways Limited HL 1985
The plaintiffs tried to restrain the defendant from pursuing an action in the US courts claiming that the plaintiffs had acted together in an unlawful conspiracy to undermine the defendant’s business.
Held: The action in the US were unlawful . .
Cited – Crofter Hand Woven Harris Tweed Company Limited v Veitch HL 15-Dec-1941
The plaintiffs sought an interdict against the respondents, a dockers’ union, who sought to impose an embargo on their tweeds as they passed through the port of Stornoway.
Held: A trade embargo was not tortious because the predominant purpose . .
Cited – British Airways Board v Laker Airways Limited 1984
Laker began an action in the US seeking damages under the US Sherman and Clayton Acts against other airlines, including British Airways and British Caledonian Airways. They said that the other airlines had combined in a conspiracy to undermine . .
Cited – British Airways Board v Laker Airways Limited CA 2-Jan-1984
The plaintiffs sought an injunction to restrain the defendant from pursuing an action in the US. That action alleged conspiracy by the plaintiffs to work together to put the defendant out of business on the North Atlantic route by anticompetitive . .
Cited – Rex v De Berenger 1814
The defendants were successfully prosecuted for conspiring by false rumours to raise the price of the public funds, causing loss to those who bought during this temporary rise. . .
Cited – Regina v Lewis 1869
The defendants were convicted of conspiring to obtain money by divers false pretences and deceptive practices. . .
Cited – Douglas and others v Hello! Ltd and others; similar HL 2-May-2007
In Douglas, the claimants said that the defendants had interfered with their contract to provide exclusive photographs of their wedding to a competing magazine, by arranging for a third party to infiltrate and take and sell unauthorised photographs. . .
Cited – Scott v Brown, Doering, McNab and Co 1892
The plaintiff sought rescission of a contract for the purchase of shares, but failed because the contract had been entered into with the sole object of rigging the market by inducing the public to believe that there was a real market for the shares . .
Cited – Regina v Rimmington; Regina v Goldstein HL 21-Jul-2005
Common Law – Public Nuisance – Extent
The House considered the elements of the common law offence of public nuisance. One defendant faced accusations of having sent racially offensive materials to individuals. The second was accused of sending an envelope including salt to a friend as a . .
Cited – Regina v Jones (Margaret), Regina v Milling and others HL 29-Mar-2006
Domestic Offence requires Domestic Defence
Each defendant sought to raise by way of defence of their otherwise criminal actions, the fact that they were attempting to prevent the commission by the government of the crime of waging an aggressive war in Iraq, and that their acts were . .
Cited – Government of the United States of America v McCaffery HL 1984
Extradition was sought under the Treaty between the Government of the United Kingdom and the Government of the United States of America. It was an ‘exceptional accusation case’, because article III of the Treaty provides that, in addition to the . .
Cited – In re Nielsen HL 1984
The House considered the role of the metropolitan magistrate under section 9 and 10 of the 1870 Act in the context of an application for extradition under the treaty between Denmark and the United Kingdom. At section 9 hearings it had been the . .
Cited – Hashman and Harrup v The United Kingdom ECHR 25-Nov-1999
The defendants had been required to enter into a recognisance to be of good behaviour after disrupting a hunt by blowing of a hunting horn. They were found to have unlawfully caused danger to the dogs. Though there had been no breach of the peace, . .
Cited – SW v The United Kingdom; CR v United Kingdom ECHR 22-Nov-1995
Criminal Law Change not retrospective
The law that marital rape was an offence, was not to be treated as retrospective despite being a common law change. The Court rejected complaints by two applicants who had been found guilty of raping their wives which was an undoubted extension of . .
Cited – Government of the United States of America v McCaffery HL 1984
Extradition was sought under the Treaty between the Government of the United Kingdom and the Government of the United States of America. It was an ‘exceptional accusation case’, because article III of the Treaty provides that, in addition to the . .
Cited – Government of Canada v Aronson; Director of Public Prosecutions v Aronson HL 20-Jul-1989
The Canadian Government asked for the arrest of the defendant and for his return to Canada to face 78 allegations in Canada. The magistrate had determined that there was sufficient evidence in 66 cases. The detainee said that 69 offences were not . .
Cited – Regina v Secretary of State for Home Department ex Parte Admn 3-Mar-1997
The section imposed the conduct test as set out in Nielsen, not the narrower approach adopted in Aronson. . .
Cited – United States of America v McVey 19-Nov-1992
(Supreme Court of Canada) La Forest J said: ‘Consistent with the general principle that extradition laws should be liberally construed so as to achieve the purposes of the Treaty, a much less technical approach to extradition warrants and to common . .
Cited – Edwards v Government of United States of America Admn 31-Jul-2007
Sedley LJ discussed and rejected the argument that ‘the analogue of the warrant is the request’ in extradition procedure and said: ‘Here, as in Dabas, the question is what is ‘the conduct’ which has to amount to an extradition offence? Is it the . .
Cited – Dabas v High Court of Justice, Madrid HL 28-Feb-2007
The defendant sought to appeal his extradition to Spain to face terrorism charges. He complained that the certificate required under the 2003 Act could not be the European arrest warrant itself, that the offence did not satisfy the double . .
Cited – In Re Ismail (Application For Writ of Habeas Corpus) (On Appeal From A Divisional Court of The Queen’s Bench Division) HL 20-Aug-1998
The term ‘Accused person’ for the purposes of extradition can include a person yet to be charged. Allowance are to be made for foreign systems, and should recognise the purpose of the legislation and includes the desire to interview or where a . .
Cited – Office of the King’s Prosecutor, Brussels v Cando Armas and others HL 17-Nov-2005
The defendant resisted extradition to Brussels saying that the offence had been committed in part in England. He had absconded and been convicted. Application was made for his return to serve his sentence. The offences associated with organisation . .
Cited – 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 . .
Cited – Regina v Governor of Belmarsh Prison and Another, Ex Parte Gilligan; Regina v Governor of Exeter Prison and Another, Ex Parte Ellis HL 1-Dec-1999
Provided there was sufficient correspondence between the offence alleged to have taken place in Ireland and a serious offence in England, it was proper to order his return to Ireland under an Irish warrant. There is no extradition treaty between the . .
Cited – Regina v Secretary of State for Home Department, ex parte Christian Norgren Admn 18-Feb-2000
The extradition of the defendant was requested by the US for breaches of insider dealing legislation. He claimed the issue of the order by the Home Secretary claiming it was not an extradition crime since at the time, the English equivalent offence . .
Cited – Re Collins (No 3) 1905
(Canada) The United States sought to extradite Collins on a charge of perjury which was alleged to have taken place when he made an affidavit containing a wilfully false statement of fact in the course of an action of alimony in California. Many . .
Cited – Wellington, Regina (on the Application of) v Secretary of State for the Home Department Admn 18-May-2007
In extradition proceedings the accused has no right to disclosure of evidence to the same extent and of the same kind which would be available in domestic proceedings.
Laws LJ said that a prison sentence without chance for parole might . .
Cited – United States of America, Regina (on the Application of) v Bow Street Magistrates’ Court Admn 6-Sep-2006
The defendant a serving prisoner sought an adjournment of his extradition to a time closer to the end of the sentence he was to serve in England.
Held: The court had sympathy with the argument that where the district judge is being invited to . .
Cited – Regina v Governor of Pentonville Prison, Ex parte Narang; Union of India v Narang HL 1978
The House considered an extradition request.
Held: Lord Keith of Kinkel said it would be sufficient to establish the primary facts on the balance of probabilities and for the court to form an opinion upon the facts established. It was . .
Cited – Jenkins v United States of America; Benbow v United States of America Admn 25-May-2005
. .
Cited – In Re Khalid Al-Fawwaz (Application for a Writ of Habeas Corpus) (on Appeal From a Divisional Court of the Queen’s Bench Division) HL 17-Dec-2001
The fact that a crime for which extradition was sought was extra-territorial one to the country making the request, was not enough to counter the application. The schedule required the person to be ‘accused or have been convicted of an extradition . .
Cited – Kakis v Government of the Republic of Cyprus HL 1978
Kakis’ extradition was sought by Cyprus in relation to an EOKA killing in April 1973. Although a warrant for Kakis’ arrest had been issued that very night, he had escaped into the mountains and remained hidden for 15 months. Subsequently, he settled . .
Cited by:
Cited – A, K, M, Q and G v HM Treasury Admn 24-Apr-2008
The applicants were suspected of terrorist associations. Their bank accounts and similar had been frozen. They challenged the Order in Council under which the orders had been made without an opportunity for parliamentary challenge or approval.
Cited – GG Plc and Others, Regina v; Regina v Goldshield Group plc and Others HL 12-Mar-2008
The defendants faced charges of conspiracy to fix and maintain the prices of prescription drugs.
Held: An indictment making such allegations must identify and particularise the aggravating acts which took such a conspiracy to the level of a . .
See Also – Norris v Government of The United States of America and Another Admn 15-May-2009
. .
See Also – Norris v Government of United States of America SC 24-Feb-2010
The defendant faced extradition to the USA on charges of the obstruction of justice. He challenged the extradition on the basis that it would interfere with his article 8 rights to family life, given that the offence was merely ancillary, the result . .
Lists of cited by and citing cases may be incomplete.
Extradition
Leading Case
Updated: 01 November 2021; Ref: scu.266166