Mauro v Government of the United States of America

For dual criminality under section 137(2)(b) of the Extradition Act 2003, the foreign offence need not correspond exactly with an English offence. The question is whether the conduct alleged would, if proved, constitute an offence in England and Wales.

The requesting authority need not expressly identify every element of the English offence. A necessary mental element, including dishonesty, may be inferred from the alleged conduct. In a Part 2 case, the court may also consider duly authenticated further information when deciding whether the conduct constitutes an extradition offence. Such material is not confined to information contained in the originating request.

The United States requested the appellant’s extradition to face four charges arising from alleged failures to file federal tax returns, pay income tax and truthful information to the tax authorities. A District Judge sent the case to the Secretary of State under section 87(3) of the Extradition Act 2003.

The appellant appealed under section 103. The sole issue was whether the alleged conduct constituted an “extradition offence” under section 137(2)(b). Dishonesty was required for the suggested English offences but was not a formal element of the American offences. The court therefore considered whether dishonesty could be inferred from the original request and whether an authenticated letter supplying further information was admissible.

1. Appeal dismissed. The District Judge had correctly held that the request concerned extradition offences within section 137(2)(b) of the Extradition Act 2003. Maurice Kay LJ delivered the judgment, with which Wyn Williams J agreed.

2. The statutory question was whether the conduct alleged would constitute an offence in England and Wales. It was not necessary for the American offence to correspond exactly with an English offence. Nor did the requesting state have to prove guilt under English law. The words “would constitute an offence” meant that the conduct would, if proved, constitute the English offence. The court applied the conduct-based approach in Cando Armas [2005] UKHL 67 and Norris [2007] EWHC 71 (Admin).

3. The requesting authority did not have to state expressly the mens rea required by English law. It was sufficient if that element could be inferred from the conduct described in the request and permissible further information. The original request alleged four years of unfiled returns, substantial unpaid tax and repeated false representations to the tax authorities. If proved, those allegations supported an inference of dishonesty. The appellant’s explanation was immaterial at this stage.

4. The letter supplying further information was admissible. The rule that a deficient Part 1 warrant cannot be supplemented so as to satisfy the mandatory requirements of section 2(2) did not determine the permissible evidence in this Part 2 case. Section 78(4)(b) did not confine the District Judge to the originating request. The letter was duly authenticated and could therefore be received under section 202(3). Article 10 of the applicable extradition treaty also contemplated the provision of additional information, although no formal request under that article had been necessary.

5. The letter clarified that the American offences required a voluntary and intentional violation of a known legal duty. More importantly, it expressly alleged dishonesty through the false representations. Even if the original request had been insufficient by itself, that unequivocal allegation established that the conduct would, if proved, amount to one or other of the suggested English offences. The statutory test was therefore satisfied.

1. High Court (Administrative Court): The appeal under section 103 of the Extradition Act 2003 was dismissed. The court upheld the District Judge’s conclusion that the request concerned extradition offences.

2. District Judge: Following an extradition hearing on 15 August 2008, District Judge Anthony Evans sent the case to the Secretary of State under section 87(3) of the Extradition Act 2003.