Judgments - Mckinnon V Government of The United States of America and Another

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33.  Did the US prosecuting authority here “attempt to interfere with the due process of the Court"? Did it place “undue pressure [on the appellant] to forego due legal process” in the UK and so disentitle itself from pursuing extradition proceedings? Would extradition in this case “violate those fundamental principles of justice which underlie the community’s sense of fair play and decency"? Would the appellant following extradition be paying “an unconscionable price . . . having insisted on exercising [his] rights under [English] law"? These are the questions plainly raised by the Supreme Court’s judgment in Cobb (and by the closely related case of USA v Shulman [2001] 1 SCR 616). They are also to my mind the essential questions underlying the single question certified for your Lordships’ determination on this appeal.

34.  Before answering these questions, however, it is as well to recognise that the difference between the American system and our own is not perhaps so stark as the appellant’s argument suggests. In this country too there is a clearly recognised discount for a plea of guilty: a basic discount of one-third for saving the cost of the trial, more if a guilty plea introduces other mitigating factors, and more still (usually one half to two thirds but exceptionally three-quarters or even beyond that) in the particular circumstances provided for by sections 71-75 of the Serious Organised Crime and Police Act 2005—see R v P; R v Blackburn [2007] EWCA Crim 2290. No less importantly, it is accepted practice in this country for the parties to hold off-the-record discussions whereby the prosecutor will accept pleas of guilty to lesser charges (or on a lesser factual basis) in return for a defendant’s timely guilty plea. Indeed the entire premise of the principle established in Goodyear [2005] 1 WLR 2532 is that the parties will have reached an agreed basis of plea in private before the judge is approached. What, it must be appreciated, Goodyear forbids are judicial, not prosecutorial, indications of sentence. Indeed, Goodyear goes further than would be permitted in the United States by allowing the judge in certain circumstances to indicate what sentence he would pass.

35.  Your Lordships will also appreciate that in April 2008 the Attorney General issued a consultation paper regarding the possible introduction here of a formal court-sanctioned plea negotiation framework for fraud cases: “The Introduction of a Plea negotiation Framework for Fraud Cases in England and Wales: a consultation". The framework would enable the prosecutor to agree (without binding the court) that a specific sentence or sentencing range is appropriate. The paper summarises the current system, recognising the legitimacy of the informal plea negotiations that currently take place, unregulated though these are. In the Federal Courts of the United States, by contrast, the practice of plea bargaining is regulated and the courts have a duty to discuss the consequences of a guilty plea with the accused in open court and to ensure that it has been entered voluntarily and with a full understanding of those consequences. The contents of any plea agreement must be disclosed in open court and the trial judge has the power to accept or reject it.

36.  Moving to the other aspect of the plea bargaining discussions in the present case, the question of repatriation, the Convention confers no rights on prisoners: a state is not obliged to comply with a repatriation request nor to provide reasons if it refuses to do so. By the same token that a plea of guilty routinely attracts a lesser sentence, understandably it is likely also to attract a more sympathetic response to a repatriation request where, as here, that involves a greatly enhanced prospect of early release. After all, the extent of remission (the critical consideration in a request for repatriation from the US to the UK) affects the length of the prison sentence to be served no less than the nominal term itself.

37.  The Divisional Court expressed their “cultural reservations” about the general American style of plea-bargaining (para 60) and in particular “a degree of distaste” as to the prosecutor’s approach towards providing or withdrawing support for repatriation (para 54). These comments seem to me somewhat fastidious. Our law is replete with statements of the highest authority counselling not merely a broad and liberal construction of extradition laws (to serve the transnational interest in bringing to justice those accused of serious cross-border crimes—see, for example, In re Ismail [1999] 1 AC 320, 326-327), but also the need in the conduct of extradition proceedings to accommodate legal and cultural differences between the legal systems of the many foreign friendly states with whom the UK has entered into reciprocal extradition arrangements.

38.  Turning, with these considerations in mind, to the questions raised by Cobb and central to the determination of the present appeal, I for my part would unhesitatingly answer all of them in the negative. As the Divisional Court itself pointed out (at para 34), the gravity of the offences alleged against the appellant should not be understated: the equivalent domestic offences include an offence under section 12 of the Aviation and Maritime Security Act 1990 for which the maximum sentence is life imprisonment. True, the disparity between the consequences predicted by the US authorities dependent upon whether the appellant cooperated or not was very marked. It seems to me, however, no more appropriate to describe the predicted consequences of non-cooperation as a “threat” than to characterise the predicted consequences of cooperation as a “promise” (or, indeed, a “bribe”). In one sense all discounts for pleas of guilty could be said to subject the defendant to pressure, and the greater the discount the greater the pressure. But the discount would have to be very substantially more generous than anything promised here (as to the way the case would be put and the likely outcome) before it constituted unlawful pressure such as to vitiate the process. So too would the predicted consequences of non-cooperation need to go significantly beyond what could properly be regarded as the defendant’s just desserts on conviction for that to constitute unlawful pressure.

39.  The differences between this case and Cobb are striking. In Cobb it was the judge who stated that non-cooperation would result in “the absolute maximum jail sentence that the law permits me to give” and he, after all, unlike the prosecuting authority, had the power to pass sentence. And in Cobb the prosecutor, so far from forewarning the defendant of the differing consequences which could be expected to follow (perfectly properly) from his decision whether or not to cooperate, effectively threatened (and here I use the word advisedly) those not cooperating with homosexual rape.

40.  The high watermark of the appellant’s case here consists of Mr Lawson’s recollection that, unless the appellant consented to extradition (as opposed merely to pleading guilty if extradited), the prosecuting authorities would oppose his repatriation. That, however, even were it to be regarded as an unlawful threat, has now been expressly repudiated by Mr Wiechering, again in marked contrast to the position in Cobb.

41.  In my judgment it would only be in a wholly extreme case like Cobb itself that the court should properly regard any encouragement to accused persons to surrender for trial and plead guilty, in particular if made by a prosecutor during a regulated process of plea bargaining, as so unconscionable as to constitute an abuse of process justifying the requested state’s refusal to extradite the accused. It is difficult, indeed, to think of anything other than the threat of unlawful action which could fairly be said so to imperil the integrity of the extradition process as to require the accused, notwithstanding his having resisted the undue pressure, to be discharged irrespective of the strength of the case against him.

42.  In my judgment this is far from being such a case and accordingly I would dismiss the appeal.


My Lords,

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