Edwards v Government of USA

For dual criminality under Part 2 of the Extradition Act 2003, the relevant conduct is confined to the facts alleged in the offence specified in the request and any document expressly incorporated into it. A requesting state cannot enlarge the offence by relying on a separate narrative of events. The court must compare that conduct with the criminal law of England and Wales. Applying that approach, the seventh count disclosed extradition offences, but the tenth count disclosed no more than common assault and therefore failed the 12-month imprisonment threshold.

The claimant faced extradition to the United States on eleven Maryland charges. The appeal concerned first- and second-degree assault counts involving Steven Broadhead. The District Judge sent the case to the Secretary of State under section 87(3) of the Extradition Act 2003, who ordered extradition.

The claimant argued that the tenth count failed dual criminality because the indictment alleged no more than common assault. The United States relied on a deposition containing a wider narrative, which, if admitted, could have established false imprisonment and firearm-related offending. The central issue was whether that narrative could supplement the conduct alleged in the indictment.

1. The appeal was allowed only in relation to count 10. The claimant was discharged on that count and the order for extradition was quashed to that extent. The appeal concerning count 7 was dismissed.

2. Sections 70 and 78 of the Extradition Act 2003 identify the required request documents and require the judge to decide whether the offence specified in the request is an extradition offence. Section 137 requires the conduct constituting the foreign offence to amount to an offence punishable by at least 12 months’ imprisonment in the relevant part of the United Kingdom and in the requesting territory.

3. “The conduct” for this purpose means the conduct asserted in the offence specified in the request. In a normal United States case, the inquiry is confined to the indictment and documents incorporated into it by express reference, together with the relevant domestic criminal law. A separate narrative may be included in the request, but it cannot be used to enlarge the conduct charged.

4. The court followed the approach in Dabas v High Court of Justice in Madrid, Spain, that the conduct relied on for double criminality is distinct from narrative material included merely as background. The approach in Norris v Government of the USA, insofar as it permitted additional material to garnish the offence specified in the request, could not stand with that approach.

5. Count 7 incorporated Maryland Criminal Code section 3-202. It therefore required proof either of serious physical injury, or of an assault committed with a firearm. Those alternatives corresponded to offences under the Offences Against the Person Act 1861 or section 16A of the Firearms Act 1968, each carrying the necessary level of punishment.

6. Count 10 incorporated Maryland Criminal Code section 3-203, which required proof only of an assault. That was equivalent to common assault in English law. The possibility that the requesting state might prove additional facts did not alter the offence specified in the indictment, so there was no dual criminality on that count.

7. The separate argument that extradition involving possible life imprisonment without parole would breach article 3 of the European Convention on Human Rights was conceded to be precluded by Lichniak. The application to certify a question was refused.

The judgment describes an appeal under section 103 of the Extradition Act 2003 from the District Judge’s decision to send the case to the Secretary of State. The Secretary of State subsequently ordered extradition. The Administrative Court allowed the appeal only on count 10.