The Supreme Court has issued a landmark decision concerning the definition of an “extradition offence” and the operation of the double criminality rule under the Extradition Act 2003. The court ordered the discharge of Mr El-Khouri and quashed the order for his extradition to the United States, where he faces charges of securities fraud, wire fraud and conspiracy.
The United States had requested Mr El-Khouri’s extradition to face prosecution in the US District Court for the Southern District of New York, where he is alleged to have obtained confidential information about prospective mergers and acquisitions of companies listed on US stock exchanges and used this information to trade securities for profit. An investigation by the UK’s Financial Conduct Authority concluded that there was insufficient evidence to support a prosecution in the UK.
Mr El-Khouri contended that the conduct did not meet the requirement of double criminality under section 137(3) because transposition should require the facts to be mirrored. The Supreme Court disagreed, re-confirming that the transposition exercise required by subsection (3)(b) assumes all the conduct to have occurred in the UK.
The Supreme Court however proceeded, of its own motion, to re-examine House of Lords precedent concerning the way in which cases were categorised under section 137 in the first place, namely the distinction between “conduct” occurring “in” and “outside” the requesting state. Overturning Office of the King’s Prosecutor, Brussels v Cando Armas, the Supreme Court has ruled that the word “conduct” should be understood in its ordinary sense, referring only to the physical acts done by the requested person (rather than the location of their intended effects). The result of that for Mr El-Khouri was to transfer his case to section 137(4) where transposition under subsection (4)(b) does require the facts to be mirrored.
The Supreme Court further held that, on mirrored facts, no “relevant” conduct would have occurred in the UK and the UK court would possess no jurisdiction to prosecute any criminal offence. In so holding, the Supreme Court also overturned Court of Appeal precedent (R v Rogers) which had held that money laundering offences had extra-territorial reach.
The United States of America was represented by Mark Summers KC of Matrix Chambers, Benjamin Seifert of 1 Crown Office Row and Honor Fitzgerald of Furnival Chambers, instructed by the Extradition Unit of the Crown Prosecution Service.