Breach of POCA: a civil contempt for extradition

Although the facts of R v O’Brien are simple, the wider issues thrown up by the Supreme Court decision should resonate with anyone facing extradition to the UK who may have a potential second allegation for which they may be imprisoned but is not an extraditable offence.

Mr O’Brien was a US citizen living in the US. He was wanted for fraud in the UK and had a finding of contempt of court made against him in his absence at the Central Criminal Court for breach of a section 41 Proceeds of Crime Act 2002 (POCA) restraint order.

O’Brien had failed to disclose his assets, had removed them from the jurisdiction but not repatriated assets from abroad.

He was sentenced, by HHJ Barker QC, to 15 months in prison for the contempt, despite arguments that this was a breach of his speciality right under the Extradition Act 2003.

O’Brien’s appeal to the Supreme Court was dismissed. The Court of Appeal had certified the following points of law of general public importance:

• Whether a contempt of court constituted by breach of a restraint order made under section 41 of the Proceeds of Crime Act 2002 means a civil or criminal contempt.
• If it is a civil contempt, whether section 151A of the Extradition Act 2003 and/or article 18 of the United Kingdom-United States Extradition Treaty 2003 precludes a court from dealing with a person for such a contempt when that person has been extradited to the UK in respect of criminal offences but not the contempt in question.

Interim remedy

On the first issue (above), the Supreme Court held that section 151A of the Extradition Act 2003 does not apply directly to this case. Reading the Act as a whole, it is clear that conduct constituting an extradition offence must be a criminal offence under the law of the requesting state (here the UK).

For the second point, a restraint order under POCA is an interim remedy, aiming to prevent the disposal of realisable assets during a criminal investigation. The Crown Court has an inherent jurisdiction to treat breach
of such orders as contempt of court.

The key is the nature and purpose of the order, not the court in which the order was made. O’Brien’s contempt was civil, and his committal
was not barred by the speciality principle.

As part of the appeal it was argued that one possible consequence of dismissing it would be that this could act as a bar to further extradition to the UK for people with similar circumstances. Had O’Brien been facing extradition from the US for breach of the section 41 POCA restraint order alone, there is no power to extradite him.

During the US extradition hearing, the Chicago judge explained the international principle of specialty to O’Brien: that he could only be tried and dealt with for what he was being extradited.

Post-O’Brien, the defendant would be advised to object to extradition to the UK. The judge will now be aware that, under English law, contempt is not an extradition offence and that there is no specialty protection if he was extradited.

While there is no extant request that his extradition includes contempt, there is a risk that because the UK refuses to recognise specialty in this matter, if he is extradited, the UK will deal with this man for offences for which the judge had no power to extradite.

What would qualify a defendant to oppose extradition under the
decision in O’Brien? There is no reason why a defendant would necessarily need to be in a position of a proven breach of restraint order. The mere existence of a restraint order with the possibility that there had been a breach could suffice.

Ironically, the situation may arise where the Serious Fraud Office seeks to prove, for extradition purposes, no breach while the defendant, in resisting extradition, seeks to demonstrate how they breached the restraint order.

Colin Wells is a barrister practising from 25 Bedford Row and Simon Rose is director at Morgan Rose Solicitors. Wells co-represented O’Brien and was instructed by Rose