Vacuum Cleaner Justice
White-collar criminals of Europe, beware. The poster boy of the antiextradition
movement was just sucked across the Atlantic.
By Michael D. Goldhaber
After seven years and two trips to England’s highest court, U.S. prosecutors this spring hauled English ex- ecutive Ian Norris before a U.S. court on the charge
of obstructing an antitrust investigation. It wasn’t quite the
dramatic “first extradition for antitrust” headline that they had
originally envisioned. But authorities regard it as a welcome
legal vindication of the much-maligned 2003 extradition treaty
between the United States and the United Kingdom.
In the English courts, Norris’s lawyers at White & Case
tapped superbarrister Jonathan Sumption of Brick Court
Chambers. Sumption argued that because the obstruction
charge was subordinate and ancillary to the antitrust charge,
it should be outweighed by human rights concerns. But he
perhaps chose his words inartfully, telling the Supreme Court
that removing the antitrust charge “knocked the stuffing out
of the case.” The court saw things differently. “I would simply
comment that there is plenty of stuffing left,” tartly wrote the
court president, Lord Nicholas Phillips of Worth Matravers,
in his unanimous opinion. “The Supreme Court were not im-
pressed by counsel’s playing down the seriousness of the per-
verting justice counts,” says Howrey’s Julian Joshua, who is not
involved in the case.
Another lawyer watching
the case, Proskauer Rose
appellate cohead Mark Har-
ris, thinks the Law Lords
got it wrong the second
time, because Norris will
effectively be sentenced in
the U.S. partly on the an-
titrust charges. “A coura-
geous House of Lords was
willing to say the first time
around that price-fixing is
not a violation of British
common law,” he argues.
“But what happened on the
other counts was sad and
belied reality. To let Norris
be sentenced in part on the
basis of the very thing he
could not be extradited for
makes a mockery of the en-
tire set of decisions. It’s just
an end run around the doc-
trine of dual criminality.”
Moving forward, dual
criminality will be largely
academic in the context of
British antitrust, because
Britain criminalized price-fixing soon after the Norris case
began. On the other hand, dual criminality has assumed new
importance on the continent of Europe—where price-fixing
is generally not a crime—because most other barriers to the
U.S. extradition of European suspects have fallen.
Negotiated soon after 9/11, the treaty was designed for
terrorists, but it has been used more for white-collar criminals. Its chief flaw is to remove the requirement that the U.S.
show the U.K. probable cause for extradition—without removing the requirement in
the opposite direction. Boris Johnson, now mayor of
London, complained during
a 2006 parliamentary debate
that the U.S. can “hoover
over to America, as if by
some electromagnetic power,
people against whom they’re
not obliged to produce any
prima facie evidence.”
European business sees
the treaty as a dangerous tool
when combined with Amer-
ica’s aggressive extraterrito-
rial jurisdiction; its sweeping
laws in such areas as export
control, money laundering,
and antitrust; and some of
the longest prison sentences
in the world. But U.S. regula-
tors are determined to apply
the law equally to price-fixers
around the world—in large
part to safeguard the integri-
ty of its leniency program for
whistle-blowers. And like law
enforcers anywhere, they do
not like to be trifled with.
It’s not the crime, it’s the cover-up: Ian
Norris was extradited not for price-fixing
but for allegedly obstructing justice.
The English manufacturer The Morgan Crucible Company
plc pleaded guilty to U.S. price-fixing in 2002. Its former chief
executive, Norris, is charged not only with cartel building, but
also with destroying documents and scripting witnesses to lie
to a U.S. grand jury. Norris disputes the charges. He fended
off extradition in 2008, when the House of Lords ruled that
price-fixing was not a British crime at the time, and did not
satisfy the treaty requirement of dual criminality. The U.S. accordingly dropped the antitrust counts. Yet in February, the
U.K.’s new Supreme Court found him extraditable on the
companion charge of obstructing justice.
The same month as Norris’s trumpeted transatlantic passage, an epochal extradition treaty with the European Union
quietly took effect. It covers every U.S. and E.U. crime
punishable by at least 18 months in prison, with very few
exceptions. In the future, fewer European suspects will be
able to ignore U.S. charges by simply restricting their international travel. ■
