Anatomy of a case: In at the deep end

Working as a trainee on the high-profile extradition case of Ian Norris at the House of Lords proved to be a rewarding, if tiring, experience for Nicholas Braganza


Anatomy of a case: In at the deep endI am running through the Houses of Parliament. I keep being obstructed by locked doors and security checkpoints. I run on through. I have a pass. Its 2.02pm. The lunch adjournment finished at 2pm. I am late. But I keep running.

I get to the correct building. No time to take the lift I run up the stairs. The first floor doesnt look familiar. Strange, maybe it isnt the first floor. I leap up the next flight of stairs. No. I run up some more. I see three gentlemen in suits chatting. I blurt out: Is this the first floor? They turn around bemused.

Yes, this is the first floor. Its Lord Bingham, Lord Rodger and Lord Carswell. Oops. I dart past as the court officer scowls at me. I dash into the Appellate Committee Room and hand the documents to the partner. He hands the documents to the QC and the court rises. The QC begins: I would like to hand up some documents to your Lordships The client whispers in my ear, Well done. Such is the life of a trainee at the House of Lords.

I started my seat in litigation with real anticipation. I had heard that my new supervisor was working on a huge, high-profile case that was going to the House of Lords, the supreme court of the United Kingdom. The case had been going on for years, but I had lucked in we were going to the Lords during my six-month seat.

Whos who

Appellant:Ian Norris
Respondent: Government of the United States of America and Others
Appellants solicitors: White & Case
Respondents solicitors: Crown Prosecution Service
Appellants counsel: Jonathan Sumption QC, Richard Gordon QC and Martin Chamberlain of Brick Court Chambers
Respondents counsel: David Perry QC, Adina Ezekiel and Louis Mably of 6 Kings Bench Walk
Intervener: Justice
Interveners solicitors: Dechert
Interveners counsel: Tim Owen QC, Duncan Penny and Kieron Beal of Matrix Chambers

The great majority of my seat was spent in preparation for the hearing. Almost immediately I sat down with my supervisor to prepare a six-month plan of how we were going to tackle this challenge.

One of my principal roles would be to coordinate the various filings that would need to be made over the following months, including the infamous (at least to any other trainee who has been to the Lords) Bound Volumes and Authorities Volumes.

During the early months, I was attending conferences with our team of barristers, monitoring the press about our case, and carrying out research on MPs and peers to see whether they would be willing to support our proposed amendments to the controversial extradition legislation that was a major catalyst in the bringing of the case to begin with. I was pleasantly surprised by the number of times that I was able to meet the client, Mr Norris.

Despite the size and the profile of the case, we were a small, focused team of one partner, one associate (my supervisor) and myself the one trainee and we coordinated on a daily basis in an informal way.

Case Background

On 12 March 2008, a White & Case team secured a major victory in the House of Lords that was splashed all over the national media the following day. The ruling came in the longrunning case of Ian Norris, whom the firm has been defending against extradition by the US Department of Justice (DoJ) since early 2005. The case has been closely followed by the media (where it has generated thousands of column inches), UK business at large, human rights groups and many politicians, because of its potentially seismic impact on both UK extradition and competition law.

There are two issues at the heart of the case. First is the controversial extradition arrangements that the UK government put in place with the US in 2003. These not only allow the US government to make extradition requests without any supporting evidence, but also severely curtail the appeal rights of UK citizens.

Second was the DoJs attempt to recharacterise price-fixing as conspiracy to defraud to make it an extraditable offence for price-fixing activities said to have been carried out before it was made a statutory offence by the Enterprise Act 2002.

Essentially, because price-fixing was not a criminal offence in the UK prior to the Enterprise Act and all of Norriss alleged activities predate this, there would have been no broad basis of dual criminality on which to extradite him. The DoJ therefore attempted to equate the offence of price-fixing with the old English common law offence of conspiracy to defraud, which, although it had been around for hundreds of years, had never been used to prosecute price-fixing in the UK.

For this reason and in support of a number of other arguments presented to the court, it was this attempt at recharacterisation that the Law Lords unanimously quashed in a detailed ruling. Had this precedent-setting attempt been successful it would have exposed other UK businesses to similar extradition requests from the US, as well as effectively retrospectively criminalising price-fixing activities in the period before the introduction of the Enterprise Act, and dramatically shifting the goal posts in UK competition law.

However, the DoJ had also filed obstruction of justice charges against Norris, which are related to the now-dismissed price-fixing point.

The Law Lords ruled that these remain an extraditable offence in principle and referred this element of the case back to the district court.

The district court will now have to consider whether the obstruction of justice charges represent sufficient grounds for extradition in light of the fact that the main count against Norris has been dismissed and the impact that extradition would have on his human rights. Effectively the court will have to weigh up whether it is proportionate to extradite Norris on this basis. Although a major victory has been secured, the fight for Ian Norris continues.

The largest task was to prepare the Bound Volumes and the authorities Volumes. The former involved collating and cross-referencing the written cases of all parties, while the latter involved putting together 12 volumes (each an inch thick) of case law, statutory materials, Hansard debates and articles. Acting for the Appellant, we had a coordinating role ensuring that the lawyers acting for the Respondents and the Interveners submitted their cases to us and informed us of any authorities they would require in the hearing. Accordingly, we had to ensure that all documents and bundles were submitted to the Judicial Office within the strict deadline; the fact that Christmas occurred in the middle of the process made it quite a challenge.

JARGON BUSTER

Dual criminality: a founding principle of
extradition law that states a person can only be extradited from one country to another for behaviour that is a crime in both countries.
Judicial certification: the process by which the High Court certifies specific points of law as being appropriate to be considered by the House of Lords. Following certification, applicants can then lodge a request to the Law Lords for their case to be heard, which the Law Lords will consider.
Conspiracy to defraud: an old English common law offence that has been in existence for hundreds of years that can be applied to cases involving fraud.
Price-fixing: the act of being in a cartel, not of itself a fraudulent activity in English law.

I collected the authorities from online resources and libraries all around London. I quickly learnt that the Lords have very high standards. The authorities all had to be immaculately copied; they needed to be bound in a certain way and the covers needed to be a certain colour and thickness. Each of the 12 volumes had to be copied 24 times in all, it amounted to approximately ten feet of copying.

Suffice to say, I became very good friends with the guys in the print room. Fortunately, I was not alone and was supported by a team of other trainees and legal assistants luckily I got away with doing very little copy checking.

It was a huge, onerous and time-consuming task, but it was great to have the responsibility to coordinate and delegate accordingly. I had the support of my supervisor and the partner, but I was largely given free rein to get the job done as required.

The culmination of all the work came with the hearing. It was surprising for its lack of pomp and ceremony and notable for its informality. The hearing took place in a small (albeit ornately decorated) committee room in the Houses of Parliament and their Lordships sat in suits (without wigs and gowns) around a horseshoe in front of the bench for Counsel.

The proceedings were a dialogue between the Law Lords and Counsel for both sides. Counsel did not have the opportunity simply to submit their respective cases before passive judges, but were grilled relentlessly on the various points of law. It made fascinating viewing, and at times you could not help but feel sympathy for the QCs attempting to present their case to an unyielding panel. Inevitably, my own role was limited. However, there were certain occasions (as described above) when I was charged with locating authorities within very short time frames, madly rushing around and liaising with other trainees back in the office to locate sections from an obscure Act of Parliament and getting them copied 24 times, doubled sided and clipped …

All in all, it was an incredible experience. Some litigators spend 20 years in practice before they have an opportunity to go to the House of Lords I only had to spend 20 weeks. I had exposure to a very high profile case, our team dealing with the press and senior politicians in equal measure. I had client contact on numerous occasions and witnessed some of the finest barristers advocating before the highest court in the land. And finally, during the time I was writing this article, we received judgment, and unanimously the Lords agreed Mr Norris should not be extradited on the basis of price-fixing and our appeal should be allowed. A fantastic result!

Timeline

October 2002: Norris retires from Morgan Crucible due to ill health
24 September 2003: Norris is charged with obstruction of justice offences
15 October 2003: a superseding indictment is filed against Norris, adding the offence of price-fixing
31 December 2004: a warrant for Norris arrest is issued in the UK
10-12 May 2005: first instance extradition hearing at Bow Street Magistrates Court
1 June 2005: Judgment handed down against Norris
29 September 2005: the Home Secretary issues an order for Norris extradition
17-18 October 2006: Norriss appeal against the Magistrates Court and the decision of the Home Secretary is heard before the Divisional Court
25 January 2007: the Divisional Court hands down its judgment against Norris
13 March 2007: the Divisional Court certifies five questions of general public importance
6 June 2007: the House of Lords grants leave to appeal
24, 28-29 January 2008: the House of Lords hears Norriss appeal
12 March 2008: the Law Lords unanimously quash the DoJs attempt to recharacterise price-fixing as a conspiracy to defraud