Jenkins v Government of USA

Under Part 2 of the Extradition Act 2003, the extradition court must determine Convention-rights compatibility on the material advanced by the requesting state. It has no general power or duty to order disclosure to investigate a suggested abuse of process or entrapment. Additional information may be sought through the treaty mechanism where the material before the court reveals a sufficient basis for further inquiry.

Entrapment is assessed under domestic abuse-of-process principles. Offering drugs as payment does not necessarily constitute entrapment where the suspect has already initiated a covert and corrupt transaction in which payment in drugs falls within the transaction’s nature. A person introduced as a willing participant may have no arguable entrapment case.

Patrick Jenkins and Christopher James Benbow appealed against orders made by the Senior District Judge under section 87(3) of the Extradition Act 2003, sending their cases to the Home Secretary for extradition to the United States to face drug-trafficking charges.

The appeals concerned the adequacy of disclosure, the court’s jurisdiction to investigate alleged entrapment, the relevance of entrapment to extradition, and the asserted uncertainty caused by the coexistence of earlier and later extradition arrangements with the United States.

1. Appeals dismissed. The United States requests were governed by Part 2 of the Extradition Act 2003. The coexistence of the 1976 arrangement and the 2003 regime did not create legal uncertainty because the commencement and savings provisions allocated requests according to the date on which they were received.
2. Entrapment is not a defence in English law. It is considered by the court as a possible abuse of process, applying the principles identified in R v Looseley [2001] UKHL 53. The court considers all the circumstances, including the nature of the offence, the reason for the police operation, the extent of police participation and any relevant criminal record or vulnerability.
3. The evidence did not establish entrapment. Benbow had initiated a covert international transaction involving dangerous material at a price suggestive of corruption. The authorities’ offer to pay in drugs entered the class of transaction that he had offered. Jenkins was introduced as a willing participant and had no independent facts capable of founding an entrapment case.
4. The district judge should have considered the factual suggestion of entrapment in somewhat more detail, but his conclusion was correct. The conclusion was limited to domestic law for the extradition appeal and did not determine what might be argued before a Florida jury under United States law.
5. The extradition court had no general power or obligation to require the United States to disclose covert recordings or other material relevant to entrapment. The requesting state decides what material to place before the court. Additional evidence may be sought under article IX of the 1872 Treaty where the material before the court makes further information necessary, such as where a referenced document is required to understand a statement or where there is sufficient evidence of abuse of process. Those circumstances were absent.
6. The court was not required to decide whether entrapment is justiciable in extradition proceedings or whether it is exclusively a matter for the trial court. Those questions were left open.

1. Senior District Judge: under section 87(3) of the Extradition Act 2003, sent both cases to the Home Secretary for extradition.
2. High Court (Administrative Court): dismissed both appeals and upheld the decisions sending the cases to the Home Secretary.