Jethwa & Ors v the Government of the United States of America

In a Part 2 extradition case, the request must particularise the alleged conduct, the time and place of the offence, and the relevant law. The required detail depends on the facts and the nature of the offence. It must enable the person sought to understand the nature and extent of the allegations and, where dual criminality is relevant, permit the transposition exercise. The court may fill an obvious gap by natural inference, but not by guesswork. In assessing territoriality, the court considers where the intended effects of conduct were felt; physical presence in the requesting state is unnecessary. The conduct need not constitute the same offence in domestic law, but it must, if proved, constitute an offence under the law of England and Wales.

Four appellants challenged decisions of District Judge Tubbs sending their extradition cases to the Secretary of State under the Extradition Act 2003. The requests from the United States concerned alleged conspiracies involving bank fraud, wire fraud, access-device fraud, international money laundering and aggravated identity theft.

The appellants argued that the allegations were insufficiently particularised and that the offences did not satisfy the statutory definition of an extradition offence. The challenges principally concerned counts 3, 6 and 8, although the remaining counts were also challenged in the cases of Ms Berney and Mr Kanuga.

1. Particularisation. The appeals were allowed in relation to counts 3 and 6 for all appellants, and in relation to count 8 for Ms Berney and Mr Kanuga. The appeals were otherwise dismissed.
2. Section 78(2)(c) of the Extradition Act 2003 requires the same degree of particularisation as section 2(4)(c). The request must give particulars of the conduct alleged to constitute the offence, the time, the place, and the relevant legal provision. A broad omnibus description is insufficient, but the court should not impose a prescriptive level of detail.
3. The description must be sufficiently intelligible to show what offence is alleged, the nature and extent of the allegations, and, where dual criminality is in issue, the material necessary for transposition. A balance is required between informing the requested person and maintaining a workable extradition procedure.
4. The court may draw natural inferences to fill an obvious gap in a request, but it must not speculate or rely on guesswork. Applying that approach, the conspiracy allegations in counts 1 and 4 were adequately particularised. The allegation against Ms Berney and Mr Kanuga that they aided and abetted the substantive offences was also sufficiently described.
5. Count 3 required proof that the appellants used or caused the use of interstate wires. The request did not identify the necessary conduct sufficiently. Count 6 required proof concerning device-making equipment, but the assertion that such equipment was probably used invited speculation and did not adequately particularise the alleged conduct.
6. Count 8 was adequately particularised against Mr Jethwa and Mr Khan through the alleged conversation concerning the movement of fraudulently obtained money. For Ms Berney and Mr Kanuga, however, the alleged conduct was separate from the substantive money-laundering offence and did not particularise that offence.
7. For territoriality, the relevant question is where the intended effects of the conduct were felt. Physical presence in the United States was unnecessary where the appellants’ conduct formed part of a joint enterprise with the necessary connection to United States entities and activities. Under section 137, the conduct need not constitute the same offence in English law, but it must, if proved, constitute an offence under the law of England and Wales.
8. All appellants were discharged on counts 3 and 6. Ms Berney and Mr Kanuga were additionally discharged on count 8. Extradition proceeded on counts 1, 2, 4, 5, 7 and 9 for all appellants, and on count 8 for Mr Jethwa and Mr Khan.

• High Court (Administrative Court): Appeals under section 103 of the Extradition Act 2003 were allowed in part. The appellants were discharged on specified counts.
• District Judge: District Judge Tubbs rejected the appellants’ objections and sent the cases to the Secretary of State on 20 April 2011 and 4 May 2011.