The United States of America, R (on the application of) v Nirvana

For extradition, the dual criminality requirement is assessed by identifying the essence of the conduct alleged in the requesting state. Mere narrative background and adventitious circumstances must be disregarded. The conduct must then be transposed to the United Kingdom and tested against UK criminal law. Dealing in cannabis seeds is not itself a UK offence, because cannabis seeds are not a controlled drug. Evidence of regular dealings with suppliers does not, without more, establish an agreement to cultivate cannabis plants or intentional assistance or encouragement of cultivation. Extradition must therefore be refused where the conduct charged would not constitute a UK offence.

The United States sought the extradition of Gypsy Nirvana to face four charges concerning conspiracies to traffic, import and export marijuana, and to commit money laundering. The alleged conduct principally involved the sale and movement of marijuana seeds from the United Kingdom and the United States.

A District Judge refused extradition and discharged Mr Nirvana, holding that the alleged conduct did not amount to a criminal offence under UK law. The United States appealed. The central issue was whether the conduct alleged satisfied the dual criminality requirement in section 137 of the Extradition Act 2003.

1. Appeal dismissed. The conduct alleged had to be assessed by identifying its essence, disregarding mere narrative background and adventitious circumstances, in accordance with Norris v Government of the United States of America [2008] UKHL 16.
2. The essence of the alleged conduct was trafficking in, importing and exporting cannabis seeds. Cannabis seeds were not themselves a controlled drug under UK law. Producing or supplying them was therefore not an offence under the Misuse of Drugs Act 1971, although cultivation of a cannabis plant was an offence.
3. The alleged dealings between Mr Nirvana and United States suppliers did not change the character of the conduct charged. The evidence showed communications of the kind expected between a customer and a regular supplier concerning supply and payment. It did not show an agreement to cultivate cannabis plants or an intentional act capable of encouraging or assisting cultivation.
4. Even when the whole of the alleged conduct was considered, the facts would not, if transposed to the United Kingdom, constitute conspiracy to cultivate cannabis plants or an offence under section 44 of the Serious Crime Act 2007. The dual criminality condition in section 137(3)(b) of the Extradition Act 2003 was therefore not satisfied.
5. The court emphasised that this was a substantive protection, not a technicality: a person should not be extradited for conduct which was not criminal in the place where it occurred.

1. High Court (Administrative Court): The appeal by the United States was dismissed.
2. District Judge: By a ruling dated 30 August 2017, extradition was refused and Mr Nirvana was discharged.