Cleveland v The Government of the United States of America

For dual criminality, the court examines the conduct alleged in an extradition request and asks whether it would, if proved, constitute an English offence. It does not assess the strength or sufficiency of the supporting evidence.

The requirement that a missing ingredient be an inevitable corollary of the alleged conduct applies only where the foreign offence itself lacks an ingredient essential to criminal liability under English law. Where the foreign offence contains the necessary ingredients but the particulars do not expressly address one of them, it is sufficient that the required inference is capable of being drawn. An extradition request need not provide the detail expected of an indictment or civil pleading.

The United States requested the claimant’s extradition to face charges arising from a fatal shooting. It alleged that she accompanied the gunman in her car, participated as his accomplice in the active pursuit of the victim, and supplied the recently purchased gun and ammunition used in the shooting.

A District Judge at Westminster Magistrates’ Court ordered extradition. The claimant appealed with permission on the ground that the alleged conduct did not disclose extradition offences under sections 78(4)(b) and 137(3)(b) of the Extradition Act 2003. She argued that the request alleged no overt assistance or encouragement and that the mens rea for accessory liability was not an inevitable inference from the stated conduct.

The central questions were whether the allegations were capable of establishing the conduct and mental elements of murder as an accessory, and when the heightened inference requirement identified in Assange applied.

1. Appeal dismissed. The extradition request disclosed extradition offences in relation to every count in the United States indictment.

2. Dual criminality is determined by examining the conduct alleged as a whole, not by comparing the legal ingredients of the foreign and English offences. The allegation need only be capable, if proved, of satisfying the conduct and mental elements of an English offence. The extradition court neither determines whether a prima facie case exists nor evaluates evidential strength.

3. The request sufficiently alleged the conduct element of accessory liability. It did not rely solely on association or presence. It alleged that the claimant acted as the gunman’s accomplice in actively pursuing the victim, using her car and the gun and ammunition which she had recently bought. Further detail about particular words or physical acts of assistance was unnecessary. Demanding such detail would improperly turn the statutory inquiry into an assessment of evidence.

4. The principle stated in Assange v Swedish Prosecution Authority [2011] EWHC 2849 (Admin) was confined to cases where the foreign offence lacks an ingredient essential to criminal liability under English law. In that situation, dual criminality may still be established if the missing ingredient is an inevitable corollary of, or necessarily implied by, the matters which must be proved abroad. This prevents extradition where the requested person could be convicted abroad on a basis which would not constitute an English offence.

5. The heightened test does not apply merely because an ingredient is not expressly addressed in the particulars. Where the foreign offence contains the necessary ingredients, a gap in the particulars may be filled if the required inference is capable of being drawn. Applying an inevitability requirement more widely would conflict with the rule that extradition courts do not assess evidential sufficiency.

6. The law of Georgia required the same mental elements for accessory liability as English law following R v Jogee [2016] UKSC 8. There was therefore no missing foreign-law ingredient. The allegation that the claimant intentionally participated in an active pursuit with malice aforethought, using her car and recently purchased weapon, was capable of supporting the required intention to assist or encourage murder. Whether that inference could ultimately be proved was for the trial court.

Leggatt LJ agreed with Holgate J.

1. High Court, Divisional Court: The appeal was dismissed. The court upheld the conclusion that the request disclosed extradition offences under sections 78(4)(b) and 137(3)(b) of the Extradition Act 2003.

2. Westminster Magistrates’ Court: District Judge Crane ordered extradition on 26 February 2018. Garnham J subsequently granted permission to appeal on the dual-criminality ground but refused permission on the challenge under section 78(2)(c).