Tesler v Government of the United States of America

For section 137(2)(a) of the Extradition Act 2003, conduct may occur in the requesting state even when the accused performed acts abroad. The court must apply a single, fact-sensitive test that considers the conduct alleged, including conduct forming part of a joint enterprise, and its intended effects in the requesting state. A substantial connection is sufficient; the conduct need not occur exclusively in that state. The passage of time bars extradition only where extradition would be unjust or oppressive. Hardship alone is insufficient, although culpable delay, prejudice, and the gravity of the alleged offence may be relevant.

The appellant appealed under section 103 of the Extradition Act 2003 against the decision of District Judge Tubbs to send the case to the Secretary of State. The Secretary of State subsequently ordered extradition to the United States. The appellant was accused of participating in an international bribery conspiracy involving Nigerian officials, a United States company and conduct in several countries.

The appeal concerned whether the conduct had occurred in the United States for the purposes of section 137(2)(a), and whether extradition was barred by the passage of time under section 82.

1. Section 137(2)(a). The appeal was dismissed on the territoriality issue. The court applied the single test described in Office of the King’s Prosecutor, Brussels v Cando Armas [2006] 2 AC 1. Conduct need not occur exclusively in the requesting state, and the accused need not have been physically present there.
2. The relevant conduct must be assessed as described in the extradition request. Where the accused is alleged to have participated in a joint enterprise, acts performed by co-conspirators in the requesting state may form part of the conduct attributed to the accused. The approach in Andreas Kodos v Prosecutor General’s Office of the Republic of Lithuania [2010] EWHC 897 (Admin) was applied. The reasoning in Government of the United States of America & Others v McCaffery [1984] 1 WLR 867 supported treating acts of confederates as relevant to the extradition connection.
3. The United States connection was substantial. The joint venture included a United States company incorporated and headquartered there, United States-based co-conspirators acted in furtherance of the scheme, and that company was intended to receive substantial financial benefits. The cross-border nature of the scheme and the fact that the appellant acted abroad did not defeat the connection. The court explained that the distinction drawn in R (Bermingham) v Director of the Serious Fraud Office [2007] QB 727 did not detract from the effects-based aspect of the test.
4. The appellant’s arguments concerning possible defects in United States jurisdiction were irrelevant to section 137(2)(a).
5. Passage of time. Applying section 82, extradition was not unjust or oppressive. The court agreed with the District Judge that hardship, delay and alleged forensic prejudice had not established the statutory bar. The guidance in Gomes and Goodyer v Government of Trinidad & Tobago [2009] 1 WLR 1038, including the demanding nature of the oppression test, was applied. The appeal was dismissed.

1. High Court (Administrative Court) — The appeal against the District Judge’s decision was dismissed. The court upheld the decision that the case should be sent to the Secretary of State and that extradition was not barred by section 82 of the Extradition Act 2003.
2. Secretary of State — Following the District Judge’s decision, the Secretary of State ordered extradition under section 93(4) of the Extradition Act 2003.