Bentley v United States

For extradition under the Extradition Act 2003, the requesting state must prove, to the criminal standard, that the alleged conduct was punishable under its law at the relevant time. A court cannot presume a critical fact where the requesting state’s own documents fail to establish it and instead undermine the supporting evidence.

Conduct carried out in the United Kingdom may nevertheless satisfy the territorial requirement where the alleged conspiracy has an intraterritorial aspect in the requesting state. Extradition engaging Article 8 will ordinarily be proportionate where the request is lawful and properly made, although family disruption remains relevant in exceptional cases.

Richard Bentley appealed under section 103 of the Extradition Act 2003 against the Bow Street District Judge’s decision to send his case to the Home Secretary. The United States alleged that he had conspired in the United Kingdom with a Florida resident to import and distribute MDMA in the United States.

The appeal concerned whether the United States had proved that MDMA was a controlled substance and that the conduct was punishable under United States law; whether the conduct occurred in the United States for the purposes of section 137; and whether extradition was compatible with Article 8 of the Convention.

1. Criminality. The appeal succeeded because the United States had not proved, to the criminal standard, that MDMA was punishable under United States law during 2003–2004. Section 137(2)(c) required proof not merely of the maximum sentence, but that the particular conduct was punishable. Foreign law was a question of fact.
2. The requesting state’s evidence asserted that MDMA was a Schedule I controlled substance, but the statutory material supplied with the request did not list it. The temporary regulation relied upon appeared to have expired. Once the state had volunteered documents which contradicted or failed to support its assertion, the District Judge could not safely presume that the assertion was correct. The supplementary affidavit did not cure the evidential defect.
3. Territoriality. This ground failed. The language of intraterritoriality and extraterritoriality depends upon the state from whose perspective the offence is considered. Conduct in the United Kingdom with consequences in the United States may form part of an intraterritorial offence in the United States. The court respectfully agreed with the reasoning adopted in Goatley v Governor of HMP Brixton, and with the approach based on conspiracy and joint enterprise reflected in Somchai Liangsiriprasert v Government of the United States of America and R v Wall.
4. Article 8. Extradition engages the right to respect for family life and must be lawful, necessary and proportionate. If extradition was otherwise in order, separation from family and the possibility of substantial unrecoverable legal costs would not make surrender disproportionate. Trial in the United Kingdom might be possible, but no sufficient case had been advanced that trial in the United States would create an unacceptable risk of conviction or sentence.
5. The appeal was allowed on the criminality issue. Mr Bentley was discharged and the Secretary of State’s extradition order was quashed. Costs were to be assessed, with liberty to apply.

• High Court (Administrative Court): Allowed the appeal against the Bow Street District Judge’s decision of 5 January 2005, discharged Mr Bentley and quashed the Secretary of State’s extradition order.