Point of law in Assange regarding inferences of mental element, not to be applied too widely in extradition cases


Re: Yolanda Cleveland v USA [2019] EWHC 619 (Admin)

The appellant in this matter is accused of murder as an accessory, following a shooting in the US in February 2008. She is now the subject of an extradition request to the USA.

This hearing discussed the Assange decision in detail, considering whether it was correctly decided in relation to assessing the requirement for dual criminality regarding mental element inferences in extradition.

The court concluded that the point of law decided in Assange was not relevant in the instant case. It held that the Assange case ‘is solely aimed at preventing a person being extradited and then convicted in the requesting state, on a basis which would not constitute an offence under English law’, and that it should not be applied more widely.

As such, where an offence in a foreign state does not include an element (e.g. mens rea) which is essential when establishing criminal liability under English law, that element may be inferred or necessarily implied from the conduct, which has to be established in the foreign jurisdiction.

Therefore the judge found that the particulars in this case were sufficient to satisfy both the mental element and conduct element for murder as an accessory. Accordingly, the appeal was dismissed.

Alex Bailin QC was involved in this case.