R v O’Brien [2014] UKSC 23

Mr O'Brien breached a POCA restraint order and fled to the USA. After extradition to the UK for fraud charges, he was committed for contempt. The Supreme Court held that such contempt is civil, not criminal, and specialty protections did not apply.

Facts

The appellant, Mr O’Brien, was under investigation in 2009 for a large-scale ‘boiler room’ fraud. On 24 September 2009 the Common Serjeant made a restraint order against him under section 41 of the Proceeds of Crime Act 2002 (POCA), requiring disclosure and repatriation of assets and prefaced with a penal notice. He failed to comply and fled the jurisdiction. On 18 December 2009 he was found to be in contempt of court, a warrant was issued for his arrest, and sentencing was adjourned.

He was traced to Chicago and arrested on 8 October 2010 pursuant to a US federal arrest warrant. He consented to extradition on the fraud charges but did not waive specialty protection. Because the SFO initially believed the contempt was criminal but concluded it could not itself found extradition (given the 12-month punishment threshold under the UK-US Extradition Treaty 2003), it applied to have the bench warrant set aside, which the Common Serjeant did on 30 November 2010. Following extradition on 2 December 2010, the SFO reconsidered, took the view the contempt was civil in nature, and applied for committal. The Common Serjeant committed the appellant to prison for 15 months. The Court of Appeal upheld that order.

Issues

The Court of Appeal certified two points of law of general public importance:

• Whether contempt of court constituted by breach of a section 41 POCA restraint order is a civil or criminal contempt.
• If civil, whether section 151A of the Extradition Act 2003 and/or article 18 of the UK-US Extradition Treaty 2003 preclude a court from dealing with such a contempt where the person has been extradited for other criminal offences.

Arguments

Appellant

Mr Alun Jones QC’s primary submission was that Part 3 of the Extradition Act 2003 was a self-contained code, and that section 148 defined an extradition offence as any conduct occurring in the UK punishable by 12 months’ imprisonment or more. Since contempt under section 14(1) of the Contempt of Court Act 1981 could be so punished, it fell within section 148 and, coupled with section 151A, precluded the UK court from dealing with him regardless of whether the contempt was civil or criminal. Alternatively, he argued that a section 41 POCA restraint order, being made in criminal proceedings by the state, rendered any contempt of it criminal in nature.

Respondent

The SFO submitted that an ‘offence’ or ‘extradition offence’ under the 2003 Act necessarily means a criminal offence, and that breach of a section 41 restraint order is a civil contempt not affected by the specialty principle.

Judgment

Lord Toulson (with whom Lord Mance, Lord Wilson, Lord Carnwath and Lord Hughes agreed) dismissed the appeal.

Construction of the Extradition Act 2003

The Court rejected the appellant’s linear reading of section 148 in isolation. Reviewed in the context of Parts 1, 2 and 3, and the Council Framework Decision of 13 June 2002 (which underpinned the Act), it was clear that the definitions of extradition offence throughout the statute presuppose criminal conduct. The Framework Decision refers to arrest for ‘conducting a criminal prosecution or executing a custodial sentence or detention order’. The predecessor Extradition Act 1989 defined ‘extradition crime’ explicitly in terms of criminal offences, and the change of wording in the 2003 Act was not intended to widen the concept to non-criminal conduct—such a significant change would have been highlighted. It followed that nothing can constitute an extradition offence unless it is a criminal offence under the law of the relevant state. It was common ground that ‘offence’ must bear the same meaning throughout the Act, so section 151A likewise only bites on criminal offences.

Civil or criminal contempt

The Court affirmed the long-established distinction in English law between civil contempt (conduct not itself criminal but punishable to ensure compliance with court orders) and criminal contempt (conduct amounting to a serious interference with the administration of justice). Reference was made to Home Office v Harman [1983] 1 AC 280 and Attorney General v Times Newspapers Ltd [1992] 1 AC 191, and to the analogous distinction drawn by the US Supreme Court in Turner v Rogers 564 US 1 (2011).

Following Pooley v Whetham (1880) LR 15 Ch D 435, disobedience to a court’s coercive order is not a crime even if the person had been extradited. The Court rejected the argument that a POCA restraint order was different because it was made by a criminal court on the state’s application: the character of the contempt depends on the nature of the conduct, not the nature of the court. Disruption of a civil trial would be criminal contempt just as would disruption of a criminal trial; conversely, disobedience of a procedural order made in criminal proceedings is not itself a crime. ‘Civil contempt’ simply denotes a contempt which is not itself a crime.

Conclusion

Breach of a section 41 POCA restraint order is a civil contempt, not a crime. Consequently, section 151A and article 18 did not preclude the Crown Court from committing the appellant.

Implications

The decision clarifies two points of practical importance. First, the specialty provisions in the Extradition Act 2003 protect an extradited person only from being dealt with for other criminal offences; the term ‘offence’ in the Act consistently means a criminal offence. Non-criminal conduct such as civil contempt therefore falls outside the specialty rule. Second, the character of contempt of court is determined by the nature of the conduct, not by whether the order or proceedings were criminal or civil in origin. Breach of a POCA restraint order, though made in the course of a criminal investigation, is a civil contempt: punishment is primarily coercive, and does not result in a criminal record.

The judgment is significant for prosecutors (particularly the SFO), defence practitioners, and those subject to restraint orders. It confirms that a defendant who breaches a restraint order and flees the jurisdiction cannot shelter behind the specialty principle upon extradition for other offences. It also provides an authoritative modern restatement of the civil/criminal contempt distinction, resolving doubts that had led to procedural complications in the extradition process itself. The decision is confined to the classification of contempt for breach of a section 41 restraint order and the reach of the specialty principle; it does not disturb the position that conduct going beyond disobedience—such as interference with the administration of justice—may amount to criminal contempt.

Verdict: Appeal dismissed. Breach of a section 41 POCA restraint order constitutes a civil contempt, not a crime, and neither section 151A of the Extradition Act 2003 nor article 18 of the UK-US Extradition Treaty 2003 precluded the Crown Court from committing the appellant for that contempt. The 15-month committal was upheld.

Source: R v O’Brien [2014] UKSC 23