AC-2023-LON-001835 - [2025] EWHC 2770 (Admin)

Fecha: 29-Oct-2025

Ground 1: the dual criminality ground of appeal

Ground 1: the dual criminality ground of appeal

The legal principles

19.

Section 10 of the Act requires the appropriate judge to be satisfied that the offences giving rise to the warrant are extradition offences. Section 64 of the Act establishes what constitutes an ‘extradition offence’ in respect of an accusation warrant. Under s.206 of the Act, the Respondent bears the burden of proving compliance with s.10 to the criminal standard.

20.

The requirements of s.64(4) in respect of establishing dual criminality are that “in corresponding circumstances equivalent conduct would constitute an extra-territorial offence under the law of the relevant part of the United Kingdom” (s.64(4)(b)).

21.

Section 64 provides:

“(2)
The conduct constitutes an extradition offence in relation to the category 1 territory if the conditions in subsection (3) or (4)] are satisfied.
(3)
The conditions in this subsection are that—
(a)
the conduct occurs in the category 1 territory;
(b)
the conduct would constitute an offence under the law of the relevant part of the United Kingdom if it occurred in that part of the United Kingdom;
(c)
the conduct is punishable under the law of the category 1 territory with imprisonment or another form of detention for a term of 12 months or a greater punishment.
(4)
The conditions in this subsection are that—
(a)
the conduct occurs outside the category 1 territory;
(b)
in corresponding circumstances equivalent conduct would constitute an extra-territorial offence under the law of the relevant part of the United Kingdom;
(c)
the conduct is punishable under the law of the category 1 territory with imprisonment or another form of detention for a term of 12 months or a greater punishment.”

22.

This provision ensures that a person is not extradited for conduct that would not be recognised as criminal in this jurisdiction. In Norris v USA [2008] 1 AC 920, to which I was also referred, the House of Lords reviewed the history of the requirement for dual criminality in English extradition law. At [88], the Court identified as “the underlying rationale of the double criminality rule” “that a person's liberty is not to be restricted as a consequence of offences not recognised as criminal by the requested state.”

23.

In Assange v Swedish Prosecution Authority [2011] EWHC 2849 (Admin), a Divisional Court (the President, Sir John Thomas, and Ouseley J) held at [57]

“It was accepted by Mr Assange that it was not necessary to identify in the description of the conduct the mental element or mens rea required under the law of England and Wales for the offence; it was sufficient if it could be inferred from the description of the conduct set out in the EAW. However, the facts set out in the EAW must not merely enable the inference to be drawn that the Defendant did the acts alleged with the necessary mens rea. They must be such as to impel the inference that he did so; it must be the only reasonable inference to be drawn from the facts alleged. Otherwise, a Defendant could be convicted on a basis which did not constitute an offence under the law of England and Wales, and thus did not satisfy the dual criminality requirement. For example, an allegation that force or coercion was used carries with it not only the implicit allegation that there was no consent, but that the Defendant had no reasonable belief in it. If the acts of force or coercion are proved, the inference that the Defendant had no reasonable belief in consent is plain.”

24.

Ms Beatty for Mr Beraru placed significant weight on the reference in Assange on the need for the description of the conduct to “impel” the inference and it is therefore appropriate to explore this issue at a little more length:

Assange was concerned with whether the necessary mens rea for a criminal offence under English law was apparent.

ii)

In Zak v Poland [2008] EWHC 470 (Admin), another Divisional Court (Richards LJ and Swift J) identified the relevant test as to whether “the conduct described in the warrant and supplement further information would constitute an offence under the law of England and Wales” ([5]). The Court held that it was sufficient if the relevant mens rea “can properly be inferred” and at [16] that it was sufficient that the mens rea “can be inferred by the court from the conduct that is spelled out in the warrant and further information” even if not “identified or specified in terms”.

iii)

Holgate J reviewed these cases in Cleveland v United States of America [2019] EWHC 619 (Admin) (a case heard by a Divisional Court comprising Leggatt LJ and Holgate J). At [21], Holgate J stated:

“A number of relevant legal principles are well established. In Norris v Government of the United States of America [2008] AC 920 the House of Lords decided that a court should not consider whether the elements of the offence in an extradition request correspond with the elements of an English offence. Instead the court should consider whether the alleged conduct, if it had occurred in the United Kingdom, would amount to an offence under English law. Where, as in the present case, the request alleges multiple offences, each one needs to be considered separately, but need not be assigned to a reciprocal offence under English law. Where the alleged conduct relevant to a number of offences is closely interconnected, it does not matter whether that conduct would be charged in this jurisdiction in the same manner as in the requesting state: Tappin v Government of the United States of America [2012] EWHC 22 (Admin) at [44].”

iv)

At [55]-[74], he carefully reviewed the authorities dealing with the circumstances in which inferences could be drawn from the facts in the warrant and Further Information. At [83] he stated:

“To summarise, the “inevitable inference” test set out in para 57 of Assange's 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. Where an essential ingredient under our criminal law is missing from the offence for which extradition is sought, a requirement for dual criminality is none the less satisfied if the court concludes that that ingredient would be the inevitable corollary of proving the matters alleged to constitute the foreign offence. But, there is no legal justification for applying that “inevitable inference” test more widely. To do so would involve breaching the general principle that a court dealing with a request for extradition is not concerned to assess the strength of the evidence that would be presented in any trial in the foreign court. Accordingly, in other circumstances, the test set out in paras 16–17 of Zakis case , namely whether an inference is capable of being drawn, continues to be applicable.”

25.

I gratefully adopt that analysis, although I have not found the distinction drawn altogether easy to apply. Its application in the present context is particularly challenging because an important issue which arises is whether the Warrant and the Further Information sufficiently disclose the elements which are required for an extra-territorial offence to be committed under English law (rather than conduct which would be criminal at all). I incline to the view that the territorial requirements for an English criminal offence to be committed are no different to the mens rea or actus reus requirements in this respect in that they are a necessary ingredient for criminal lability before the English courts. For that reason, and because I am not ultimately persuaded that the different tests make any difference to the outcome in this particular case, I have applied the Assange test to that question. By contrast, where the issue is whether the facts alleged sufficiently disclose, for example, allegations of conspiracy or assistance, I have applied the Zak test.

26.

Finally, the Supreme Court in El-Khouri v USA [2025] UKSC 3 considered the issue of whether an offence is an extradition offence where the conduct underpinning the extradition request occurred outside of the territory requesting extradition. That case was concerned with Part 2 (as opposed to the present case which is concerned with Part 1) with the result that the Court had to consider the terms of s.137 rather than s.64, but for present purposes the sections are in materially identical terms and I have used the s.64 references in the summary which follows.

27.

The Supreme Court found as follows:

The test in s.64(3) of the Act is whether the conduct specified in the extradition request would constitute an offence under UK law if it occurred in the United Kingdom ([37]) which, in a paradigm case where all the acts specified in the request were done in the territory of the requesting state, requires the court to consider a hypothetical situation in which those acts were done in the relevant part of the United Kingdom and ask whether, in that situation, the acts would constitute an offence under the law of that part of the United Kingdom.

ii)

Where the acts in question did occur in the United Kingdom, no such hypothetical is required, the sole hypothesis required by the subsection remains that conduct which in fact occurred in the foreign territory occurred “in” (the relevant part of) the United Kingdom. The court is not required to transpose any conduct in the opposite direction and to treat conduct which in fact occurred within the United Kingdom as having occurred outside it ([40]).

iii)

However, s.64(4) does require this. Under that subsection the test is whether in corresponding circumstances equivalent conduct would have constituted an extra-territorial offence under UK law. For this purpose, it is necessary to construct a mirror image of what actually occurred, namely a hypothetical in which the conduct of the requested person (or any other relevant event) alleged to have occurred outside the territory of the requesting state is assumed to have occurred outside the (relevant part of the) United Kingdom, and vice-versa ([41]).

iv)

Where the conduct specified in the extradition request occurs outside the territory of the requesting state, the analysis is not affected by the fact that the conduct is undertaken with the intention of causing harm within the territory of the requesting state ([50]). The word “conduct” in s.64 is “concerned solely with where the physical acts alleged were done and not with where any effects of those acts (intentionally or otherwise) were felt” ([56]).

The underlying scheme is a simple territorial approach to criminal jurisdiction which takes for granted that courts have jurisdiction over acts occurring within the state's own territory but recognises that they may also in a variety of circumstances exercise jurisdiction in respect of acts occurring outside its territory. The function of subsections (3)(a) and (4)(a) is merely to divide cases into these two categories ([59]).

28.

At [83] the Supreme Court summarised the applicable principles as follows:

“(1)
Subsections [64(3)] and (4) are mutually exclusive. In applying [section 64], it is therefore necessary to decide at the outset whether the conduct of the person whose extradition is sought occurred “in” or “outside” the territory of the requesting state.
(2)
For this purpose the court is concerned, and concerned only, with where the person's acts specified in the extradition request were physically done, ignoring in the case of both provisions mere narrative background and focusing on the substance of the alleged criminality. The court is not concerned with where any consequences of those acts occurred or were felt.
(3)
It is not a requirement of subsection (3) or (4) that the relevant conduct occurred exclusively in, or outside, the territory of the requesting state (as the case may be).
(4)
In this case, however, all the relevant conduct … occurred outside the United States. The conditions which must be satisfied for the conduct to constitute an extradition offence are therefore those in subsection (4) and not those in subsection (3).
(5)
The test of double criminality in subsection (4)(b) requires the court to consider whether an offence would be committed under UK law if the alleged conduct of the requested person (and any other relevant event) occurring outside the territory of the requesting state had occurred outside (the relevant part of) the United Kingdom (and vice-versa).”