If there is one thing the Supreme Court proved in its ruling for the banks against the Office of Fair Trading last week (The Lawyer 25 November ) it is that it will not be swayed by public opinion.
Only a few days later and it was time for another potentially landmark case. Last week the court gathered nine supreme justices to hear the emotionally charged extradition hearing concerning Ian Norris, the former Morgan Crucible chief executive (See story).
To recap: Norris is wanted by the US on charges of causing obstruction of justice. Originally the US Department of Justice (DoJ) had attempted to extradite him on charges relating to a price-fixing cartel.
The House of Lords rejected that attempt in March 2008 (The Lawyer, 17 March 2008), but ruled that the subsidiary charge of obstruction of justice remained an extraditable offence and referred this back to the magistrates court.
That obstruction charge is directly related to Norris’ decision to fight the DoJ’s attempt to extradite him on price-fixing charges.
The magistrate’s court ruled that Norris should face trial in the US. That ruling was upheld by the divisional court in May, but referred the human rights point of law to the Supreme Court for consideration.
Meanwhile, the DoJ is continuing with its – apparently successful – attempt to extradite Gary McKinnon to face charges of hacking into Pentagon and Nasa computers in 2001, causing $700,000 worth of damage.
The courts first ruled that McKinnon should be extradited in July 2006. His lawyers, Doughty Street’s Ed Fitzgeral QC instructed by Kaim Todner partner Karen Todner, appealed that ruling in the High Court in February 2007 but was rejected. This was supported by the House of Lords in July 2008 and in August 2008 the European Court of Human Rights refused to stay the extradition pending an appeal to the court.
Then the fight turned political. The then Home Secretary Jacqui Smith refused to stop the extradition on the grounds that McKinnon had been diagnosed with Asperger’s syndrome. The courts have consistently closed down any route to appeal.
The Director of Public Prosecutions, Keir Starmer (coincidentally a former Doughty Street member), has rejected attempts for his trial to be heard in the UK, so now Fitzgerald will attempt to bring a judicial review of the Home Secretary’s decision to allow him to be sent to the US.
It is understood that attempts have been made to tie the McKinnon case to Norris twice – both attempts have failed on the basis that the charges were too diverse.
Nevertheless, if Norris’ barrister, Brick Court’s Jonathan Sumption QC, is successful in arguing that attempts to extradite him should be thrown out because it would be an infringement of his human rights under Article 8 of the Human Rights Act (the right to family life), it could have implications for McKinnon.
The public campaign waged by McKinnon’s family against the extradition has been immense. By contrast, Norris has left the campaigning to the lawyers and kept a lower profile.
These cases demonstrate that emotional pleas, however ethical, are likely to be rejected by the Supreme Court. Fortunately for Norris (and to some extent for McKinnon), Sumption knows the law inside out. If anyone can persuade nine supreme justices that the UK’s extradition agreement with the US is in need of urgent review, it is he.