Hosseini & Ors v Courts of Higher Instance, Paris, France

For the purposes of section 64(3) of the Extradition Act 2003, conduct may occur partly in the requesting territory even where the accused was physically elsewhere, if the intended effects of the conduct were felt there. In a transposition exercise under section 64(3)(b), the court assumes that the conduct alleged occurred in the relevant part of the United Kingdom. It does not import the different test applicable to extraterritorial conduct under section 64(4). In an extradition case engaging article 8, the relevant interference is the extradition itself. The court ordinarily cannot review the prosecuting authority’s choice of jurisdiction. Extradition will be disproportionate only in a wholly exceptional case.

These were appeals under section 26 of the Extradition Act 2003 against orders made by Deputy Senior District Judge Wickham at Bow Street Magistrates’ Court on 12 April 2006. The district judge had ordered the extradition of three appellants to France under European arrest warrants concerning alleged participation in an organised immigration network.

The appellants argued that the conduct did not constitute an extradition offence because some acts occurred in the United Kingdom, and that extradition would unjustifiably interfere with article 8 rights. The central issues were the construction of section 64(3) and the proportionality of extradition in the circumstances relied upon.

1. The appeals were dismissed. The conduct alleged in each warrant constituted an extradition offence under section 64(3) of the Extradition Act 2003.
2. Lord Hope’s reasoning in Office of the King’s Prosecutor, Brussels v Cando Armas [2005] UKHL 67, concerning conduct and intended effects across territorial borders, was not obiter. It was supported by the other speeches and was, in any event, highly persuasive. Conduct such as sending money orders from the United Kingdom to recipients in France could properly be treated as occurring partly in both countries.
3. Section 64(3)(b) required the court to assume that the conduct alleged occurred in the relevant part of the United Kingdom and ask whether it would then constitute a domestic offence. It did not require the court to consider whether equivalent conduct in corresponding circumstances would be an extraterritorial offence. On that hypothesis, the conduct would constitute an offence under section 25 of the Immigration Act 1971, so the double-criminality requirement was satisfied.
4. Article 8 was engaged by the interference with family and private life. However, the relevant interference was the extradition under the 2003 Act, not the earlier decision to prosecute in France. The court could not go behind the European arrest warrant to examine the methodology or correctness of the prosecuting authority’s jurisdictional decision. The extradition was therefore in accordance with the law.
5. Applying R (Bermingham) v Director of the Serious Fraud Office [2006] EWHC 200 (Admin), a wholly exceptional case was required before extradition could be held disproportionate. Family separation was a normal feature of extradition. The appellants’ personal and mental-health circumstances, considered with the alleged links to France, did not meet that high threshold.
6. The same conclusions applied to the appeals of Omar Ahmed and Besran Zada, whose warrants contained materially similar allegations and who were also in the United Kingdom when the alleged conduct occurred. Mr Justice Toulson agreed.

• High Court (Administrative Court): appeals against the orders of Deputy Senior District Judge Wickham at Bow Street Magistrates’ Court dated 12 April 2006 were dismissed.